author: Pound, J.

text:
    Ithaca Trust Company, as Trustee, Respondent, v. The Ithaca Traction Corporation et al., Appellants, and Farmers’ Loan and Trust Company, as Trustee, Respondent, Impleaded with Others.
    Mortgage — corporations — railroads — mortgage of public utility corporation valid as to necessary and appropriate after-acquired property — lien of mortgage by street railway company covering after-acquired properties and extensions of the road not confined to property acquired at time mortgages were made — extensions authorized thereafter covered — properties acquired by merger within after-acquired property clauses — after-acquired contract for power subject to mortgage — contract for power modified rather than terminated by notice of cancellation by power company accompanied by offer to continue to furnish power on modified terms which was done — transfer to successor of mortgagor of lease of power plant and bill of sale of machinery and appliances which it sold receiving long time contract for power and notes in payment — contract for power subject to lien of mortgage but lease, bill of sale and proceeds thereof are not.
    1. A mortgage by a public utility corporation is valid in respect to after-acquired property necessary and appropriate for its physical operation under its franchise and the performance of its public duties.
    2. Where by the terms of mortgages, executed by a street railway company, all after-acquired property and all extensions of the road were comprehensively covered so that every interest that the railway could acquire was included, and where, thereafter, upon reorganization its successor obtained its title to the railway property subject to the underlying mortgages and all the broad and sweeping provisions thereof, it cannot successfully maintain, in an action for foreclosure of one of the mortgages, that the after-acquired property clauses operate only on property acquired within the capacity of the corporation at the time the mortgages were made and do not cover extensions after-wards authorized, where the extensions were authorized when made or were subsequently validated, including all hens thereon.
    3. Nor can it be successfully contended that the after-acquired property clauses do not spread to properties acquired by merger where the mortgagor took actual possession thereof and operated them as a physical and visible part of its road and its successor took them as part of the railway system with no prior equities therein. (Metropolitan Trust Co. v. Chicago & E. I. R. Co., 253 Fed. Rep. 868, distinguished.)
    4. Power facilities possessed by the mortgagor when its successor acquired its property are subject to the mortgage and where it had a power plant of its own when the mortgage was given but thereafter abandoned it and made a contract with another corporation for power from its plant, the contract became subject to the mortgage.
    5. A contention that when receivers of the mortgagor took possession of its properties there was no contract for power for the reason that on the day before they were appointed, notice was given by the power company that the contract was canceled for failure to perform, cannot be sustained, where, at the same time, it offered to continue to furnish power on modified terms and thereafter power was furnished to the railway company and its successor on those terms. The contract was modified rather than terminated.
    6. The facts that receivers of another railroad, the affairs of which were interwoven with those of the mortgagor, took a long time lease of the real property of the power company and a bill of sale of its machinery and appliances and thereafter transferred them to the successor of the mortgagor, which sold the lease and personal property to another corporation for a sum represented by notes and for a long time contract for power, do not sustain a holding that the power contract and the cash received in satisfaction of the notes represented the original power house of the mortgagor and thus became, as after-acquired property, subject to the underlying mortgages, and that the receivers acted as a conduit to carry the power plant title of the mortgagor to its successor. The receivers could not carry over any interest of the mortgagor in the power plant that it had not then acquired. The mortgagor never owned the power plant or the lease or the bill of sale. It merely had a contract for power from that source and while it is proper to impress the contract with the lien of the mortgage, the lease and bill of sale and the proceeds thereof are not subject thereto.

      Ithaca Trust Co. v. Ithaca Traction Corp., 221 App. Div. 818, modified.
    (Argued May 11, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 12, 1927, unanimously affirming a judgment in favor of plaintiff entered upon the report of a referee.

      Martin A. Schenck, Charles E. Hotchkiss and H. C. McCollom for appellants.
    The after-acquired property-clause in the mortgage should have been limited to the property acquired by the mortgagor and within its then charter. There is no equity requiring the spreading of this lien to additional properties acquired under other corporate franchises. (MacDonnell v. Buffalo L., T. & S. D. Co., 193 N. Y. 92; Titusville Iron Co. v. City of New York, 207 N. Y. 203; Carpenter v. Black Hawk Gold Mining Co., 65 N. Y. 43; Polhemus v. Fitchburg R. R. Co., 123 N. Y. 502; Indian Creek Coal Mining Co. v. Home Savings & M. Bank, 249 Pac. Rep. 499; Zartman v. First Nat. Bank, 189 N. Y. 267; Central Trust Co. v. Pittsburg, S. & N. R. R. Co., 223 N. Y. 347; Commercial Trust Co. v. Chattanooga Ry. & Light Co., 281 Fed. Rep. 856; Railway Steel Springs Co. v. Chicago & E. I. R. Co., 246 Fed. Rep. 338; 253 Fed. Rep. 868; Trust Company of America v. City of Rhinelander, 182 Fed. Rep. 64.) Property acquired and operated under other corporate franchises and later merged into the mortgagor corporation, was not acquired by the mortgagor within the terms of the after-acquired property clause. (Irving Bank-Columbia Trust Co. v. New York Rys. Co., 292 Fed. Rep. 429; 292 Fed. Rep. 440; Polhemus v. Fitchburg R. R. Co., 123 N. Y. 502; Irvine v. New York Edison Co., 207 N. Y. 425; Louisville Trust Co. v. Cincinnatti Inclined-Plane Ry. Co., 91 Fed. Rep. 699.) Property acquired and operated under other corporate franchises and later purchased, by a third corporation, even along with the purchase of the property of the mortgagor, was not after-acquired property of the mortgagor within the terms of the after-acquired property clauses. (Seventy-eighth St. & Broadway Co. v. Purssell Mfg. Co., 173 App. Div. 887; Metropolitan Trust Co. v. Chicago & E. I. R. Co., 253 Fed. Rep. 868; New York Security & Trust Co. v. Louisville, E. & St. L. Consol. R. Co., 102 Fed. Rep. 382; Hodder v. Kentucky & Great Eastern Ry. Co., 7 Fed. Rep. 793; Susquehanna Trust & Safe Deposit Co. v. United Tel. & Tel. Co., 6 Fed. Rep. [2d] 179; Murray v. Farmville, etc., R. Co., 101 Va. 262; Dinsmore v. Racine & Miss. Rd., 12 Wis. 725; United States v. New Orleans R. R. Co., 12 Wall. 362; Westinghouse Elec. & Mfg. Co. v. Brooklyn R. T. Co., 276 Fed. Rep. 152; Harris v. Youngstown Bridge Co., 90 Fed. Rep. 322; Central Improvement Co. v. Cambria Steel Co., 201 Fed. Rep. 811.)

      Frank Irvine and George S. Mittendorf for respondent.
    All property of the Ithaca Street Railway Company, whether its property at the time the first and second mortgages were executed or acquired thereafter in any manner, was subjected to the liens of those mortgages as of the time of the acquisition of the property. (Platt v. N. Y. & Sea Beach R. Co., 9 App. Div. 87; 153 N. Y. 670; New York Security Co. v. Saratoga Gas Co., 88 Hun, 569; 157 N. Y. 689; Pintsch Compressing Co. v. Buffalo Gas Co., 280 Fed. Rep. 830; Holroyd v. Marshall, 10 H. L. Cas. 191; Mitchell v. Winslow, Fed. Cas. 9673; Dunham v. Cincinnati, etc., R. Co., 1 Wall. 254; Thompson v. White Water Valley R. Co., 132 U. S. 68; Compton v. Jesup, 68 Fed. Rep. 263; Trust Co. of America v. Rhinelander, 182 Fed. Rep. 64; Wade v. Chicago, Springfield & St. L. R. Co., 149 U. S. 327.) The Ithaca Traction Corporation and its mortgagee took the property subject to all the terms and conditions, of the underlying mortgages, including the after-acquired property clauses, and whatever extensions, improvements or changes may have been made by the Ithaca Traction Corporation were subject to the provisions of the underlying mortgages in this respect, and subject to their hen. (Compton v. Jesup, 68 Fed. Rep. 263; Boston Safe Deposit Co. v. Bankers, etc., Co., 36 Fed. Rep. 288; Trust Company of America v. Rhinelander, 182 Fed. Rep. 64; Fogg v. Blair, 133 U. S. 534; Gibson v. American L. & T. Co., 12 N. Y. Supp. 444; Union Trust Co. v. Southern Sawmills Co., 166 Fed. Rep. 193; Evans v. Kister, 92 Fed. 828; Manhattan Trust Co. v. Sioux City & N. R. Co., 68 Fed. Rep. 72; Tippett v. Barham, 180 Fed. Rep. 76.)
   Pound, J.

The action is to foreclose a second mortgage given by the Ithaca Street Railway Company, dated January 2, 1894. Prior to it is a first mortgage to defendant-respondent Farmers’ Loan and Trust Company, dated July 1, 1892.

The Ithaca Street Railway Company, when the mortgage in suit was executed, owned and operated an electric street railway in the city of Ithaca. The Cayuga Lake Electric Railway Company operated a line about two miles in length which was an extension of the line of the Ithaca Street Railway Company on Tioga street to Cayuga lake. It was first leased by and then merged into the Ithaca Street Railway Company and became a part of its system in July, 1898. The original fine of the Ithaca Street Railway Company was extended in 1899 or 1900 by the construction of the loop which became an integral part of the system.

The Ithaca Street Railway Company on July 1, 1907, executed a third mortgage. Foreclosure followed in 1912. The property of the Ithaca Street Railway Company was sold to Fitz, chairman of a reorganization committee. The Ithaca Traction Corporation, defendant-appellant, was organized in 1914 and the property of the Ithaca Street Railway Company was transferred to it. The Traction Corporation made a mortgage to the predecessor of the appellant Irving Bank-Columbia Trust Company, covering all its property.

The judgment in this action directs the sale of practically all the property of the Traction Corporation. Judgment is also given against the defendants-appellants, Traction Corporation and Trust Company for $99,050 cash proceeds of the sale of the Remington Salt Company power house hereinafter referred to.

The question presented on this appeal is as to the extent of the underlying mortgages and the property and rights secured thereby. The Traction Corporation claims that property and rights are included in the judgment which was never owned nor acquired by the Ithaca Street Railway Company. A patient examination of complicated facts is necessary to reach a proper conclusion on this point.

In addition to the corporations already named others are to be considered.

1. Ithaca and Cayuga Heights Railway was incorporated in 1904. It connected with the Ithaca Street Railway Company and extended north to the village of Cayuga Heights which is contiguous to the city of Ithaca and for residential purposes practically a part thereof. It was operated first by the Ithaca Street Railway Company, into which it was merged, then by its receivers and since by the Traction Corporation, which has extended the line about eight hundred feet to the north.

2. New York, Auburn and Lansing Railroad Company, which in 1905 built a steam railroad from Auburn to a junction with the Ithaca Street Railway Company near Renwick, now Stewart Park in Ithaca. Electric service was introduced at South Lansing, several miles from the Ithaca end. Its affairs were interwoven with those of the Ithaca Street Railway Company. A mortgage on its property was foreclosed at the time of the 1907 foreclosure of the third mortgage on the Ithaca Street Railway Company. A reorganization plan for both corporations followed. Fitz, as chairman of the reorganization committee, bought both properties. The steam railroad passed to Central New York Southern Railroad Corporation, organized to carry out the plan. The street railroad property passed to the Ithaca Traction Corporation, similarly organized. The plan was to make the Central New York Southern Railroad Corporation the holding corporation of the stock of the Traction Corporation and the Traction Corporation a subsidiary of the Central New York Southern Railroad. The power property, hereinafter referred to, passed to the Traction Corporation and the Central New York Southern Railroad received bonds of the Traction Corporation as compensation.

By the terms of the underlying mortgages all after-acquired property and all extensions of the road were covered in the most comprehensive manner. Every interest that the railway company could acquire in relation to its railway system was included.

When the Traction Corporation obtained its title in 1912 to the property of the Ithaca Street Railway Company it acquired it subject to the underlying mortgages and all the broad and sweeping terms and provisions thereof.

The plaintiff takes the position, which has been sustained by the referee and the Appellate Division, that when the Traction Corporation obtained its title the Railway Company had and operated a street railway system, including its own property as described in the mortgage, together with after-acquired power facilities, the Loop and the Cayuga Lake and Cayuga Heights extensions and mergers above referred to, all of which were necessary and appropriate to its physical operation.

The appellant Traction Corporation, which acquired for the greater part of its own properties, the property of the Ithaca Street Railway Company, seeks to unscramble the property of the Ithaca Street Railway and separate from it the power facilities by which the railway was operated, the Cayuga Heights extension and other items which were at least utilized by the railway before the Traction Corporation acquired its title.

A mortgage by a public utility corporation is valid in respect to after-acquired property necessary and appropriate for its physical operation under its franchise and the performance of its public duties. (Platt v. N. Y. & Sea Beach Ry. Co., 9 App. Div. 87; affd., on op. below, 153 N. Y. 670.) The property in question is of such a character as to be an integral part of the mortgaged property if it was acquired by the Railway Company. It was used as a part of the Ithaca Street Railway system. The question is whether the Ithaca Street Railway Company acquired the property or whether it merely operated it. A substitution clause in the mortgage subjects all new appliances and property such as cars, generators, etc., to the lien of the mortgage. It has no application here. Prior liens on after-acquired property are protected but no prior hens are in controversy in this case.

Appellants’ point that the after-acquired property clauses operate only on property acquired within the capacity of the corporation at the time the mortgages were made and do not cover extensions afterwards authorized, has no force. The extensions were authorized when made or were subsequently validated, including ah hens thereon. (L. 1893, ch. 679.) So as to the point that these clauses do not spread to property acquired by merger. The Loop, the Cayuga Lake and the Cayuga Heights property, ah minor extensions of the main line, were acquired by the Ithaca Street Railway Company as part of its local system and so became subject to the mortgages. It took actual possession of them and operated them as a physical and visible part of its road. The Ithaca Traction Corporation took these properties as a part of the Ithaca Street Railway system. It has no prior equities therein. Metropolitan Trust Co. v. Chicago & E. I. R. R. Co. (253 Fed. Rep. 868) has to do with comphcated consolidations and has no apphcation here.

More difficulty arises out of the judgment so far as it subjects to the lien of the underlying mortgages a contract for purchase of power and $99,050 in cash. This is the most important matter in dispute. Does the mortgage attach to the power facilities possessed by the Ithaca Street Railway Company when the Traction Corporation acquired its property? Clearly such power facilities, whatever they may have been, were purchased by the Traction Corporation along with the purchase of the property of the mortgagor as a part of the reorganization scheme. What power facilities of the Ithaca Street Railway Company had become a part of its property at that time?

The Ithaca Street Railway Company had a power plant of its own when the mortgage was given. In 1901 it abandoned it and made a contract with the Remington Salt Company, whereby power was obtained from that plant. This contract was subject to the mortgage because it was a contract hereafter acquired.” Power was furnished to the Railway Company under this contract until 1912, when receivers were appointed. Notice was given by the Remington Company to the Railway Company the day before the receivers were appointed that the contract was canceled for failure to perform, but that power would be furnished at the same terms until further notice, provided payments were made daily and settlement made of the amount in arrears. It is contended that when the receivers took possession there was no contract for power. The contract was, however, modified rather than terminated and power was thereafter furnished under the modified terms to the Ithaca Street Railway Company and its successor.

In May, 1913, the receivers of the New York, Auburn and Lansing Railroad Company, above referred to (also receivers of the Ithaca Street Railway Company), took a lease of the real property of the Remington Salt Company for 999 years and a bill of sale of the machinery and appliances. The power plant was, according to the original plan of reorganization, to be vested in the steam railroad company but the Public Service Commission insisted that the new street railroad should have its own power plant. As a result this property was transferred to the Ithaca Traction Corporation, not wholly, it would seem, as an independent source of power to the new company, but as including the source of power of the Ithaca Street Railway Company. It has been held that the power contract and the cash received represent the original power house of the railway which was, of course, subject to the lien of the mortgage; that thus became, under the terms of the underlying mortgages, after-acquired property of the Railway Company, subject to the first and second mortgages; and that the receivers acted as a conduit to carry the power plant title over to the Traction Corporation, the successor of the Ithaca Street Railway Company. Obviously the receivers could not carry over to the Traction Corporation any interest of the Railway Company in the power plant that the Railway Company had not then acquired. The plant was purchased out of the proceeds of receivers’ certificates which were subsequently paid off out of the proceeds of the sale of bonds of the Central New York Southern Railroad Corporation, which was secured by the pledge of bonds of the Ithaca Traction Corporation. Yet it is held that the Traction Corporation’s title to the plant was acquired solely as a substituted source of power to operate the Railway Company whose properties it acquired.

This is an erroneous conclusion.

The property of the Ithaca Street Railway Company was operated as a part of the Traction Corporation’s system with power furnished by the plant until the year 1921, when the Remington Salt Company sold the reversion and the Traction Corporation sold its lease and the personal property to the Tompkins County Power Corporation. The Traction Corporation received for its interest $100,000 in notes of the Power Corporation and a long term contract for power. The notes were deposited as additional security for the Traction Corporation mortgage. Ultimately the plant was transferred to New York State Gas and Electric Corporation, which satisfied the notes by paying $99,050 in cash. The hen of the mortgage has been held to cover the lease and the bill of sale and, therefore, the power contract and the cash accepted as a substitute for property sold. The right of the Railway Company to take power from the Remington Company itself was destroyed by the lease and subsequent sale of the plant but the right to receive power from the plant was not thereby destroyed. It must be remembered that this controversy arises out of a reorganization. The Traction Corporation took over the Railway Company as a going concern. The question is what was the property of the Ithaca Street Railway? Was it a company without a source of power? Clearly not. It had an existing contract right to take power from the Remington plant which the 'Traction Corporation could not acquire independently of the right of the Railway Company.

The referee states in his opinion that the general language of the old mortgages is sufficient to cover power as operating property. He does not mention the $99,050 cash. In his report, however, which the judgment follows, he concludes that the lease and the bill of sale were subject to the old mortgages and that all the proceeds are subject thereto. He has gone too far. The Ithaca Street Railway never owned the power plant, or the lease or the bill of sale. It merely had a contract for power to be supplied from that source. The sale of the plant was subject to that contract. The cash does not represent impairment of security or loss of power facilities. It represents a new investment, not operating power. Even if it were cash of the Ithaca Street Railway Company it would not be covered by the mortgage. The purchaser on the foreclosure sale gets a street railway system with power facilities under the contract with the Power Company. It is proper to impress the power contract of the Ithaca Traction Corporation with the lien of the mortgage but not to impress therewith the lease and bill of sale and the proceeds thereof as such.

The judgment of the Appellate Division and that of the trial court should be modified by striking therefrom the provision that defendants-appellanfcs pay to the receiver herein the sum of $99,050, the proceeds of the sale of the power house, and as so modified affirmed, without costs.

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

Judgment accordingly.


source: Caselaw Access Project

author: Cardozo, Ch. J.

license: Public Domain

text:
    The Hermitage Company, Respondent, v. Joseph Levine, Appellant.
    Landlord and tenant — lease — dispossession — reletting as agent for former tenant — rent realized evidence of damages sustained — liability of tenant for damages from reletting single and entire in absence of provision in lease to the contrary — deficiency ascertained at end of term — action by landlord to recover deficiency upon reletting after dispossession prematurely brought.
    1. A provision in a lease that after its termination by dispossession or ejectment, removal or abandonment, the landlord may relet as the agent of the tenant, does not mean that the landlord is an agent in a strict sense. The privilege to relet as agent for the former tenant means only that the reletting shall be evidence of the damages sustained, which, when the time to ascertain them comes, will be computed upon the basis of what is realized through the reletting without other evidence of value.
    2. In the absence of a provision in the lease that points with reasonable clearness to a different construction, a liability for damages resulting from a reletting is single and entire, not multiple and several, and the deficiency is to be ascertained when the term is at an end.
    3. The complaint, therefore, in an action by a landlord to recover damages suffered through deficiency of rents upon its reletting premises after dispossession of defendant who had leased the same for a term ending many years hence, must be dismissed in the absence of a damage clause in the lease making the tenant responsible for monthly deficits after re-entry by the landlord.

      Rermitage Co. v. Levine, 222 App. Div. 12, reversed.
    (Submitted May 11, 1928;
    decided May 29, 1928.)

      Appeal from a judgment, entered December 15# 1927# upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a verdict directed .by the court and directing judgment in favor of plaintiff.

      Meyer D. Siegel for appellant.
    The action at bar is prematurely brought. (Kottler v. New York Bargain House, 242 N. Y. 28; Darmstadt v. Knickerbocker, 188 App. Div. 129; Seidlitz v. Auerbach, 186 App. Div. 7; Halpern v. Manhattan Ave. Theater Carp., 173 App. Div. 610; 220 N. Y. 655; Harding v. Austin, 93 App. Div. 564; Matter of Hemanor, 144 N. Y. 271; McCready v. Lindenborn, 65 N. Y. 298; 172 N. Y. 400; Mann v. Munch Brewery, 225 N. Y. 189; Lenco v. Hifshfield, 247 N. Y. 44; Bowditch v. Raymond, 144 Mass. 109.) The plaintiff landlord, failing to relet the premises, as agent for the defendant, elected to relieve the defendant from liability under the covenant, and no action for deficiency or for damages will lie. (Brill v. Friedhoff, 192 App. Div. 802; Glendenning v. Lindner, 9 Misc. Rep. 683; Knabe Mfg. Co. v. Dinwiddie, 116 N. Y. Supp. 716; Underhill v. Collins, 132 N. Y. 269; Gray v. Kaufman Dairy & Ice Co., 162 N. Y. 388; Weeks v. International Trust Co., 125 Fed. Rep. 370; Bowditch v. Raymond, 144 Mass. 109.) The covenant in the lease at bar does not create a liability for rent or for deficiency which survives the issuance of a warrant in summary proceedings. (Michaels v. Fishel, 169 N. Y. 381; Johnson v. Oppenheim, 55 N. Y. 280; Chaude v. Sheppard, 122 N. Y. 397; Hinsdale v. White, 6 Hill, 507; Code Civ. Pro. § 2253; Atterbury v. Bank, 241 N. Y. 231; Anzolene v. Paskusz, 96 App. Div. 198; 45 East 57th Street v. Miller, 214 App. Div. 189; Pannuto v. Foglia, 105 N. Y. Supp. 495; Asher Simon Realty Co. v. Goldberg, 61 Misc. Rep. 634; Baylies v. Ingram, 82 N. Y. Supp. 891; Sockoff v. Bernstein, 164 N. Y. Supp. 262; Butler v. Stellman, 93 Misc. Rep. 151;
      Halpern v. Manhattan, 173 App. Div. 610; Reshen v. Rosenwall Realty Co., 199 N. Y. Supp. 77; Markman v. 451 Grand St., 168 N. Y. Supp. 522; Colderaro v. Kempner, 197 N. Y. Supp. 41.)

      Albert H. Atterbury and Taylor More for respondent.
    The action was not begun prematurely. (Howard v. Daly, 61 N. Y. 362; Darmstadt v. Knickerbocker C. & E. Co., 188 App. Div. 129.) The clause in the lease which is here in question is ample to sustain plaintiff’s claim, whether for rent, or damages, or deficiency. (Slater v. Von Chorus, 120 App. Div. 16; 45 East 57th St. Co. v. Miller, 214 App. Div. 189; Baylies v. Ingram, 84 App. Div. 360; 181 N. Y. 518; Butler v. Stillman, 92 Misc. Rep. 151; McCready v. Lindenborn, 172 N. Y. 400; Lenco, Inc., v. Hirschfield, 247 N. Y. 44.) Plaintiff’s claim is only for such damages as had actually accrued at the commencement of the action. (McCready v. Lindenborn, 172 N. Y. 400; Michaels v. Fishel, 169 N. Y. 381; Baylies v. Ingram, 84 App. Div. 20; Anzolone v. Paskusz, 96 App. Div. 188; Asher Simon Realty Co. v. Goldberg, 61 Misc. Rep. 634; Parmto v. Foglia, 55 Misc. Rep. 244.) The landlord had a right to use the property as it did and still hold the tenant for damages. (Slater v.Von Chorus, 120 App. Div. 16; Saracena v. Preisler, 180 App. Div. 348; Grigsby v. Ruland, 210 App. Div. 640.)
   Cardozo, Ch. J.

Plaintiff leased to defendant a seven-story building in the city of New York for a term of twenty-one years and two months, commencing August 1, 1924, and finding October 1, 1945, at a rent of $72,000 a year, payable monthly in advance, for the first five years together with all taxes, assessments, insurance charges and other expenses incidental to the maintenance and management of the building, and at a higher rent thereafter.

Defendant went into possession, but paid the rent for only a few months, and was dispossessed in summary proceedings on December 31, 1924.

The lease contained the following provision as to the liability of the tenant after re-entry by the landlord:

“ In case the tenant shall be dispossessed or ejected, or shall remove from or abandon the demised premises after a demand for the rent or the service of a notice as provided by section 1410 of the Civil Practice Act, or after the commencement of dispossess proceedings, or for any other reason, the landlord may re-enter the said premises by force or process of law or otherwise, and relet the same as agent for the tenant, and the tenant shall remain hable for all damages which the landlord may sustain by any such breach of this agreement, or through such entry or reletting.”

Plaintiff, upon resuming possession, made diligent effort to relet. Three floors it relet to one tenant, two to a second and a part of one floor (the first) to a third. For a few months it ran a garage on the remaining part of the first floor, but later relet this also. By August 1, 1925, it had relet the whole building. The new leases were for varying terms. Three and a half floors were relet for fifteen years; two and a half for ten years; and one for three years. After all are at an end, a substantial period will remain before October 1, 1945, when the defendant’s liability expires.

This action, begun in March, 1926, is brought to recover the damages suffered by the landlord through the deficiency of rents computed to that time. The defendant is credited with $30,000, a security deposit, and with the profits earned through the use of the garage as well as with the rents collected. The result is a deficiency of $25,529.39, for which judgment is demanded. The Trial Term dismissed the complaint. The Appellate Division reversed, and gave judgment for the plaintiff.

The principal question is whether the action is premature. After the tenant had been ejected in summary proceedings, the lease was at an end. What survived was a liability, not for rent, but for damages (Kottler v. N. Y. Bargain House Co., 242 N. Y. 28). The defendant insists that ascertainment of the damages will be impossible until October 1, 1945. The plaintiff insists that by the proper construction of the covenant the loss is to be ascertained monthly as if the lease were still in force, with the result that successive causes of action will arise with every monthly deficit.

The provision that the landlord may relet as the agent of the tenant after the termination of the lease does not mean that he is an agent in a strict sense. Plainly, he is not, for after the termination of the lease, what he relets is his own. The privilege to relet as agent for the former tenant means this and nothing more, that the reletting shall be evidence of the damages sustained. We find an analogy in the statement, not infrequent in the books, that a vendor of personal property is the agent of a vendee in reselling upon default (Moore v. Potter, 155 N. Y. 481, 487). The damages, when the time to ascertain them comes, will be computed upon the basis of what is realized through the reletting without other evidence of value.

The question is still left, how often and when shall the damage be computed? Is there to be a single cause of action" in which all the damage will be computed down to October, 1945, or are there to be monthly causes of action to recover successive deficits, though conceivably new leases made when the present ones are over will make the net result a surplus?

No doubt, a damage clause can be drawn in such a way as to make a tenant responsible for monthly deficits after the re-entry of his .landlord, and this without charging the landlord with a duty to account for a surplus in other seasons. Such a clause will be found in McCready v. Lindenborn (172 N. Y. 400), where the lease was to the effect that the tenant would pay the difference in rent in equal monthly payments as the amount of such, difference shall from time to time be ascertained.” A clause similar in effect, though more uncertain in its terms, will be found in Mann v. Munch Brewery (225 N. Y. 189), where the tenant was to continue liable for the payment of the rent and the performance of all the other conditions herein contained.” None the less, in the absence of a provision that points with reasonable clearness to a different construction, a liability for damages resulting from a reletting is single and entire, not multiple and several. The deficiency is to be ascertained when the term is at an end (Harding v. Austin, 93 App; Div. 564 [per Willard Bartlett, J.]; Halpern v. Manhattan Ave. Theatre Corp., 173 App. Div. 610; 220 N. Y. 655; Darmstadt v. Knickerbocker C. & E. S. Co., 104 Misc. Rep. 547, App. Term, per Lehman, J.; 188 App. Div. 129). The tenant when ejected ceases to be a tenant. What he covenants to pay is the damage, not the rent. To hold him for monthly deficits is to charge him with the obligations of a tenant without any of the privileges. He must pay in the lean months, without recouping in the fat ones. He must do this, though it may turn out in the end that there has been a gain and not a loss. A liability so heavy may not rest upon uncertain inference.

We do not overlook the hardship to the landlord in postponing the cause of action until October, 1945. The hardship is so great as to give force to the argument that postponement to a date so distant may not reasonably be held to have been intended by the parties. There is no reason to suppose, however, that the landlord was expectant of so early a default or so heavy a deficiency. It had in its possession a deposit of cash security in the sum of $30,000. Very likely this was supposed to be enough to make default improbable and the risk of loss remote. If the damage clause as drawn gives inadequate protection, the fault is with the draftsman. The courts are not at liberty to supply its omissions at the expense of a tenant whose liability for the future ended with the cancellation of the lease except in so far as he bound himself by covenant to liability thereafter.

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

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

Judgment accordingly.


author: Cardozo, Ch. J. Andrews, J.

text:
    Helen Palsgraf, Respondent, v. The Long Island Railroad Company, Appellant.
    Negligonce — railroads — passengers — package carried by passenger, dislodged while guards were helping him board train, and which falling to track exploded — plaintiff, an intending passenger standing on platform many feet away, injured as result of explosion — complaint in action against railroad to recover for injuries dismissed.
    A man carrying a package jumped aboard a car of a moving train and, seeming unsteady as if about to fall, a guard on the car reached forward to help him in and another guard on the platform pushed him from behind, during which the package was dislodged and falling upon the rails exploded, causing injuries to plaintiff, an intending passenger, who stood on the platform many feet away. There was nothing in the appearance of the package to give notice that it contained explosives. In an action by the intending passenger against the railroad company to recover for such injuries, the complaint should be dismissed. Negligence is.not actionable unless it involves the invasion of a legally protected interest, the violation of a right, and the conduct of the defendant’s guards, if a wrong in relation to the holder of the package, was not a wrong in its relation to the plaintiff standing many feet away.

      Palsgraf v. Long Island R. R. Co., 222 App. Div. 166, reversed.
    (Argued February 24, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 16, 1927, affirming a judgment in favor of plaintiff entered upon a verdict.

      William McNamara and Joseph F. Keany for appellant.
    Plaintiff failed to establish that her injuries were caused by negligence of the defendant and it was error for the court to deny the defendant’s motion to dismiss the complaint. (Paul v. Cons. Fireworks Co., 212 N. Y. 117; Hall v. N. Y. Tel. Co., 214 N. Y. 49; Perry v. Rochester Lime Co., 219 N. Y. 60; Pyne v. Cazenozia Canning Co., 220 N. Y. 126; Adams v. Bullock, 227 N. Y. 208; McKinney v. N. Y. Cons. R. R. Co., 230 N. Y. 194; Palsey v. Waldorf Astoria, Inc., 220 App. Div. 613; Parrott v. Wells Fargo & Co., 15 Wall. 524; A., T. & S. Fe Ry. Co. v. Calhoun, 213 U. S. 1; Prudential Society, Inc., v. Ray, 207 App. Div. 496; 239 N. Y. 600.)

      Matthew W. Wood for respondent.
    The judgment of affirmance was amply sustained by the law and the facts. (Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425; Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469; Lowery v. Western Union Tel. Co., 60 N. Y. 198; Insurance Co. v. Tweed, 7 Wall. 44; Trapp v. McClellan, 68 App. Div. 362; Ring v. City of Cohoes, 77 N. Y. 83; McKenzie v. Waddell Coal Co., 89 App. Div. 415; Slater v. Barnes, 241 N. Y. 284; King v. Interborough R. T. Co., 233 N. Y. 330.)
   Cardozo, Ch. J.

Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper.

In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.

The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively , to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not do” (Pollock, Torts [11th ed.], p. 455; Martin v. Herzog, 228 N. Y. 164, 170; cf. Salmond, Torts [6th ed.], p. 24). Negligence is the absence of care, according to the circumstances” (Willes, J., in Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679, 688; 1 Beven, Negligence [4th ed.], 7; Paul v. Consol. Fireworks Co., 212 N. Y. 117; Adams v. Bullock, 227 N. Y. 208, 211; Parrott v. Wells-Fargo Co., 15 Wall. [U. S.] 524). The plaintiff as she stood upon the platform of the station might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor (Sullivan v. Dunham, 161 N. Y. (290). If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. “In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury” (McSherry, C. J., in W. Va. Central R. Co. v. State, 96 Md. 652, 666; cf. Norfolk & Western Ry. Co. v. Wood, 99 Va. 156, 158, 159; Hughes v. Boston & Maine R. R. Co., 71 N. H. 279, 284; U. S. Express Co. v. Everest, 72 Kan. 517; Emry v. Roanoke Nav. Co., 111 N. C. 94, 95; Vaughan v. Transit Dev. Co., 222 N. Y. 79; Losee v. Clute, 51 N. Y. 494; DiCaprio v. N. Y. C. R. R. Co., 231 N. Y. 94; 1 Shearman & Redfield on Negligence, § 8, and cases cited; Cooley on Torts [3d ed.], p. 1411; Jaggard on Torts, vol. 2, p. 826; Wharton, Negligence, § 24; Bohlen, Studies in the Law of Torts, p. 601). The ideas of negligence and duty are strictly correlative(Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.

A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed. In this case, the rights that are said to have been violated, the interests said to have been invaded, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which may very well be doubted, it was a wrong to a property interest only, the safety of his package. Out of this wrong to property, which threatened injury to nothing else, there has passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff’s right upon the basis of a wrong to some one else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform.

The argument for the plaintiff is built upon the shifting meanings of such words as wrong” and “wrongful,” and shares their instability. What the plaintiff must show is “a wrong” to herself, i. e., a violation of her own right, and not merely a wrong to some one else, nor conduct “wrongful” because unsocial, but not a wrong” to any one. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension (Seavey, Negligence, Subjective or Objective, 41 H. L. Rv. 6; Boronkay v. Robinson & Carpenter, 247 N. Y. 365). This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path. It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye” (Munsey v. Webb, 231 U. S. 150,156; Condran v. Park & Tilford, 213 N. Y. 341, 345; Robert v. U. S. E. F. Corp., 240 N. Y. 474, 477). Some acts, such as shooting, are so imminently dangerous to any one who may come within reach of the missile, however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even today, and much oftener in earlier stages of the law, one acts sometimes at one’s peril (Jeremiah Smith, Tort and Absolute Liability, 30 H. L. Rv. 328; Street, Foundations of Legal Liability, vol. 1, pp. 77, 78). Under this head, it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A resulting by misadventure in injury to B (Talmage v. Smith, 101 Mich. 370, 374). These cases aside, wrong is defined in terms of the natural or probable, at least when unintentional (Parrot v. Wells-Fargo Co. [The Nitro-Glycerine Case], 15 Wall. [U. S.] 524). The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all (Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong. Confirmation of this view will be found in the history and development of the action on the case. Negligence as a basis of civil liability was unknown to mediaeval law (8 Holdsworth, History of English Law, p. 449; Street, Foundations of Legal Liability, vol. 1, pp. 189, 190). For damage to the person, the sole remedy was trespass, and trespass did not lie in the absence of aggression, and that direct and personal (Holdsworth, op. cit. p. 453; Street, op. cit. vol. 3, pp. 258, 260, vol. 1, pp. 71, 74.) Liability for other damage, as where a servant without orders from the master does or omits something to the damage of another, is a plant of later growth (Holdsworth, op. cit. 450, 457; Wigmore, Responsibility for Tortious Acts, vol. 3, Essays in Anglo-American Legal History, 520, 523, 526, 533). When it emerged out of the legal soil, it was thought of as a variant of trespass, an offshoot of the parent stock. This appears in the form of action, which was known as trespass on the case (Holdsworth, op. cit. p. 449; cf. Scott v. Shepard, 2 Wm. Black. 892; Green, Rationale of Proximate Cause, p. 19). The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of action is to ignore the fundamental difference between tort and crime (Holland, Jurisprudence [12th ed.], p. 328). He sues for breach of a duty owing to himself.

The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 54; Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264; Smith v. London & S. W. Ry. Co., L. R. 6 C. P. 14; 1 Beven, Negligence, 106; Street, op. cit. vol. 1, p. 90; Green, Rationale of Proximate Cause, pp. 88, 118; cf. Matter of Polemis, L. R. 1921, 3 K. B. 560; 44 Law Quarterly Review, 142). There is room for argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now. The consequences to be followed must first be rooted in a wrong.

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

Andrews, J.

(dissenting). Assisting a passenger to board a train, the defendant’s servant negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servant knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling they injured the plaintiff, an intending passenger.

Upon these facts may she recover the damages she has suffered in an action brought against the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept — the breach of some duty owing to a particular person or to particular persons? Or where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypothesis we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.

Negligence may be defined roughly as an act or omission which unreasonably does or may affect the rights of others, or which unreasonably fails to protect oneself from the dangers resulting from such acts. Here I confine myself to the first branch of the definition. Nor do I comment on the word unreasonable.” For present purposes it sufficiently describes that average of conduct that society requires of its members.

There must be both the act or the omission, and the right. It is the act itself, not the intent of the actor, that is important. (Hover v. Barkhoof, 44 N. Y. 113; Mertz v. Connecticut Co., 217 N. Y. 475.) In criminal law both the intent and the result are to be considered. Intent again is material in tort actions, where punitive damages are sought, dependent on actual malice — not on merely reckless conduct. But here neither insanity nor infancy lessens responsibility. (Williams v. Hays, 143 N. Y. 442.)

As has been said, except in cases of contributory negligence, there must be rights which are or may be affected. Often though injury has occurred, no rights of him who suffers have been touched. A licensee or trespasser upon my land has no claim to affirmative care on my part that the land be made safe. (Meiers v. Koch Brewery, 229 N. Y. 10.) Where a railroad is required to fence its tracks against cattle, no man’s rights are injured should he wander upon the road because such fence is absent. (Di Caprio v. N. Y. C. R. R., 231 N. Y. 94.) An unborn child may not demand immunity from personal harm. (Drobner v. Peters, 232 N. Y. 220.)

But we are told that there is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff himself and not merely to others.” (Salmond Torts [6th ed.], 24.) This, I think too narrow a conception. Where there is the unreasonable act, and some right that may be affected there is negligence whether damage does or does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger but to all who might have been there — a wrong to the public at large. Such is the language of the street. Such the language of the courts when speaking of contributory negligence. Such again and again their language in speaking of the duty of some defendant and discussing proximate cause in cases where such a discussion is wholly irrelevant on any other theory. (Perry v. Rochester Line Co., 219 N. Y. 60.) As was said by Mr. Justice Holmes many years ago, the measure of the defendant’s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.” (Spade v. Lynn & Boston R. R. Co., 172 Mass. 488.) Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or C alone.

It may well be that there is no such thing as negligence in the abstract. Proof of negligence in the air, so to speak, will not do.” In an empty world negligence would not exist. It does involve a relationship between man and his fellows. But not merely a relationship between man and those whom he might reasonably expect his act would injure. Rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm some one, it harms him a mile away as surely as it does those on the scene. We now permit children to recover for the negligent killing of the father. It was never prevented on the theory that no duty was owing to them. A husband may be compensated for the loss of his wife’s services. To say that the wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit facts to theory. An insurance company paying a fire loss recovers its payment of the negligent incendiary. We speak of subrogation— of suing in the right of the insured. Behind the cloud of words is the fact they hide, that the act, wrongful as to the insured, has also injured the company. Even if it be true that the fault of father, wife or insured will prevent recovery, it is because we consider the original negligence not the proximate cause of the injury. (Pollock, Torts [12th ed.], 463.)

In the well-known Polemis Case (1921, 3 K. B. 560), Scrutton, L. J., said that the dropping of a plank was negligent for it might injure workman or cargo or ship.” Because of either possibility the owner of the vessel was to be made good for his loss. The act being wrongful the doer was liable for its proximate results. Criticized and explained as this statement may have been, I think it states the law as it should be and as it is. (Smith v. London & Southwestern Ry. Co., [1870-71] 6 C. P. 14; Anthony v. Staid, 52 Mass. 290; Wood v. Penn. R. R. Co., 177 Penn. St. 306; Trashansky v. Hershkovitz, 239 N. Y. 452.)

The proposition is this. Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining but this is not a duty to a particular individual because as to him harm might be expected. Harm to some one being the natural result of the act, not only that one alone, but all those in fact injured may complain. We have never, I think, held otherwise. Indeed in the Di Caprio case we said that a breach of a general ordinance defining the degree of care to be exercised in one’s calling is evidence of negligence as to every one. We did not limit this statement to those who might be expected to be exposed to danger. Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt.

If this be so, we do not have a plaintiff suing by derivation or succession.” Her action is original and primary. Her claim is for a breach of duty to herself — not that she is subrogated to any right of action of the owner of the parcel or of a passenger standing at the scene of the explosion.

The right to recover damages rests on additional considerations. The plaintiff’s rights must be injured, and this injury must be caused by the negligence. We build a dam, but are negligent as to its foundations. Breaking, it injures property down stream. We are not liable if all this happened because of some reason other than the insecure foundation. But when injuries do result from our unlawful act we are liable for the consequences. It does not matter that they are unusual, unexpected, unforeseen and unforseeable. But there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former.

These two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as does the existence of negligence itself. Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only omniscience can say. You may speak of a chain, or if you please, a net. An analogy is of little aid. Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential. But that is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no such thing.

Should analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred sources. No man may say whence any drop of water is derived. Yet for a time distinction may be possible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes water stained by its clay bed. The three may remain for a space, sharply divided. But at last, inevitably no trace of separation remains. They are so commingled that all distinction is lost.

As we have said, we cannot trace the effect of an act to the end, if end there is. Again, however, we may trace it part of the way. A murder at Serajevo may be the necessary antecedent to an assassination in London twenty years hence. An overturned lantern may burn all Chicago. We may follow the fire from the shed to the last building. We rightly say the fire started by the lantern caused its destruction.

A cause, but not the proximate cause. What we do mean by the word proximate” is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my burning haystack set on fire my house and my neighbor’s. I may recover from a negligent railroad. He may not. Yet the wrongful act as directly harmed the one as the other. We may regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the act of the railroad was not the proximate cause of our neighbor’s fire. Cause it surely was. The words we used were simply indicative of our notions of public policy. Other courts think differently. But somewhere they reach the point where they cannot say the stream comes from any one source.

Take the illustration given in an unpublished manuscript by a distinguished and helpful writer on the law of torts. A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed. B, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration. A nursemaid, ten blocks away, startled by the noise, involuntarily drops a baby from her arms to the walk. We are told that C may not recover while A may. As to B it is a question for court or jury. We will all agree that the baby might not. Because, we are again told, the chauffeur had no reason to believe his conduct involved any risk of injuring either C or the baby. As to them he was not negligent.

But the chauffeur, being negligent in risking the collision, his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one who might be affected by it. C’s injury and that of the baby were directly traceable to the collision. Without that, the injury would not have happened. C had the right to sit in his office, secure from such dangers. The baby was entitled to use the sidewalk with reasonable safety.

The true theory is, it seems to me, that the injury to C, if in truth he is to be denied recovery, and the injury to the baby is that their several injuries were not the proximate result of the negligence. And here not what the chauffeur had reason to believe would be the result of his conduct, but what the prudent would foresee, may have a bearing. May have some bearing, for the problem of proximate cause is not to be solved by any one consideration.

It is all a question of expediency. There are no fixed rules to govern our judgment. There are simply matters of which we may take account. We have in a somewhat different connection spoken of “the stream of events.” We have asked whether that stream was deflected — whether it was forced into new and unexpected channels. (Donnelly v. Pierey Contracting Co., 222 N. Y. 210). This is rather rhetoric than law. There is in truth little to guide us other than common sense.

There are some hints that may help us. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attentuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or by the exercise of prudent foresight could the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in time and space. (Bird v. St. PaulF. & M. Ins. Co., 224 N. Y. 47, where we passed upon the construction of a contract — but something was also said on this subject.) Clearly we must so consider, for the greater the distance either in time or space, the more surely do other causes intervene to affect the result. When a lantern is overturned the firing of a shed is a fairly direct consequence. Many things contribute to the spread of the conflagration — the force of the wind, the direction and width of streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must as best we can.

Once again, it is all a question of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.

Here another question must be answered. In the case supposed it is said, and said correctly, that the chauffeur is liable for the direct effect of the explosion although he had no reason to suppose it would follow a collision. The fact that the injury occurred in a different manner than that which might have been expected does not prevent the chauffeur’s negligence from being in law the cause of the injury.” But the natural results of a negligent act — the results which a prudent man would or should foresee — do have a bearing upon the decision as to proximate cause. We have said so repeatedly. What should be foreseen? No human foresight would suggest that a collision itself might injure one a block away. On the contrary, given an explosion, such a possibility might be reasonably expected. I think the direct connection, the foresight of which the courts speak, assumes prevision of the explosion, for the immediate results of which, at least, the chauffeur is responsible.

It may be said this is unjust. Why? In fairness he should make good every injury flowing from his negligence. Not because of tenderness toward him we say he need not answer for all that follows his wrong. We look back to the catastrophe, the fire kindled by the spark, or the explosion. We trace the consequences — not indefinitely, but to a certain point. And to aid us in fixing that point we ask what might ordinarily be expected to follow the fire or the explosion.

This last suggestion is the factor which must determine the case before us. The act upon which defendant’s liability rests is knocking an apparently harmless package onto the platform. The act was negligent. For its proximate consequences the defendant is liable. If its contents were broken, to the owner; if it fell upon and crushed a passenger’s foot, then to him. If it exploded and injured one in the immediate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some distance away. How far cannot be told from the record — apparently twenty-five or thirty feet. Perhaps less. Except for the explosion, she would not have been injured. We are told by the appellant in his brief it cannot be denied that the explosion was the direct cause of the plaintiff’s injuries.” So it was a substantial factor in producing the result — there was here a natural and continuous sequence — direct connection. The only intervening cause was that instead of blowing her to the ground the concussion smashed the weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And surely, given such an explosion as here it needed no great foresight to predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage of machines or structures no one could say. But injury in some form was most probable.

Under these circumstances I cannot say as a matter of law that the plaintiff’s injuries were not the proximate result of the negligence. That is all we have before us. The court refused to so charge. No request was made to submit the matter to the jury as a question of fact, even would that have been proper upon the record before us.

The judgment appealed from should be affirmed, with costs.

Pound, Lehman and Kellogg, JJ., concur with Cardozo, Ch. J.; Andrews, J., dissents in opinion in which Crane and O’Brien, JJ., concur.

Judgment reversed, etc.


author: Kellogg, J.

text:
    In the Matter of Julius Davidson, Respondent, against James J. Walker as Mayor of the City of New York, Appellant.
    Courts — judges — New York city — mandamus — designation of two justices of Court of Special Sessions, residents of Brooklyn as justices in new Children’s Court — provision in statute that offices of justices of Court of Special Sessions so designated shall be abolished, within power of Legislature — mandamus to compel appointment of two residents of Brooklyn to alleged vacancies denied.
    Under section 6 of the act relating to the Children’s Court of the city of New York (L. 1924, eh. 254) providing “if the presiding justice or any justice of the previously existing Children’s Court shall be appointed a justice of this court the office of justice of the Court of Special Sessions which he had previously held shall be deemed to be abolished on his acceptance of such appointment,” no vacancies were occasioned in the Court of Special Sessions by the appointment of two of its members, residents of the borough of Brooklyn, who had been assigned to the Children’s Court division of the Court of Special Sessions, as members of the new Children’s Court. The fact that after their appointment and acceptance there remained on the Court of Special Sessions but three members from the borough of Brooklyn while the act constituting that court (L. 1910, eh. 659) provided (§ 12) that there should be five, is immaterial. The Legislature of 1924 had power to provide for the abolition of the offices of justices of the Court of Special Sessions previously held by those who might become appointees to the new Children’s Court. When, therefore, the justices received their appointments to the new court, their offices as justices of the Court of Special Sessions ceased to exist and an application for a peremptory order of mandamus, to compel the appointment of two residents of the borough of Brooklyn as justices of the Court of Special Sessions in their stead, should be denied.

      Matter of Davidson v. Walker, 222 App. Div. 437, reversed.
    (Argued April 30, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 13,1928, which unanimously affirmed an order of Special Term, granting a motion for a peremptory order of mandamus to compel the mayor of the city of New York to appoint two qualified persons, residents of the borough of Brooklyn, as justices of the Court of Special Sessions of the city of New York.

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly, Russell Lord Tarbox and Arthur Sweeney of counsel), for appellant.
    Upon the acceptance by justices of the previously existing division of the Court of Special Sessions, known and designated as the Children’s Court of the city of New York, of appointments as justices of the new Children’s Court of the City of New York, which was established on that day, the offices as justices of the Court of Special Sessions of the City of New York previously held by them, were abolished. (People ex rel. Conti v. Kempner, 144 App. Div. 339; Stack v. City of Brooklyn, 150 N. Y. 335; People ex rel. Davison v. Williams, 213 N. Y. 130; Matter of Devins v. Sayer, 233 N. Y. 690; People ex rel. De Vito v. Sayer, 233 N. Y. 615; People ex rel. Mitchell v. Sturges, 156 N. Y. 580; Matter of Kelly, 42 App. Div. 283; Long v. Mayor, etc., 81 N. Y. 425; Newton v. Comrs., 100 U. S. 548; People v. Fire Assn., 92 N. Y. 311; 119 U. S. 110; People v. L. I. R. R. Co., 134 N. Y. 506; Matter of McCabe v. Voorhis, 243 N. Y. 401.)

      Leonard M. Wallstein and Ralph M. Frink for Citizens Union of the city of New York, amicus curiæ.

      Albert Conway and Ralph K. Jacobs for respondent.
   Kellogg, J.

The Court of Special Sessions of the City of New York, prior to the enactment of the Children’s Court Act (Laws of 1924, ch. 254), was constituted to consist of a chief justice and 14 associate justices. (Laws of 1910, ch. 659, sec. 11.) Of the associate justices at least seven , were required to be residents of the borough of Manhattan or The Bronx; five to be residents of the borough of Brooklyn; one to be a resident of the borough of Queens; one to be a resident of the borough of Richmond. (Id. sec. 12.) A separate division of the Special Sessions, to be known as the Children’s Court of the City of New York, was established. (Laws of 1915, ch. 531, sec. 6.) This court was constituted to consist of five justices of the Court of Special Sessions designated for service as justices in the Children’s Court by the Mayor of the City of New York. (Id.) One of the five justices was required to be designated by the Mayor to act as presiding justice. (Id.) By section 6, chapter 254 of the Laws of 1924, there was set up an independent Children’s Court to consist of six justices to be appointed by the Mayor, one of whom was to be designated as presiding justice. These justices might or might not be appointed from the membership of the Court of Special Sessions. The act in terms provided: “If the presiding justice or any justice of the previously existing Children’s Court shall be appointed a justice of this court the office of justice of the Court of Special Sessions which he had previously held shall be deemed to be abolished on his acceptance of such appointment.” It is clear that in enacting this provision, the Legislature had in mind the fact that one-third of the membership of the Court of Special Sessions, under the existing law, had previously been assigned to a division of that court known as the Children’s Court; that by such assignment there had been devolved upon the remaining ten justices the performance of all the business coming before the Court of Special Sessions. If justices of the Special Sessions could be spared for a Children’s Court division, they might equally be spared for the independent Children’s Court presently to be established, and the membership of the Court of Special Sessions might correspondingly be reduced. Accordingly, the Legislature enacted the provision whereby it was ordained that, in the event of the Mayor’s appointment to the new Children’s Court of a justice of the Court of Special Sessions, previously sitting in the Children’s Court division, the office of justice of the Court of Special Sessions ” previously held by the appointee should be deemed to be abolished on his acceptance of such appointment.” In this instance the Mayor did in fact select two justices of the Court of Special Sessions who had previously sat in the Children’s Court division, and appointed them as justices of the newly established Children’s Court. The appointments were accepted by the justices. It is immaterial that the justices appointed were residents of the borough of Brooklyn. It is immaterial that there remained on the Court of Special Sessions, after the appointments thus made, but three residents of the borough of Brooklyn instead of five, as previously required. (Laws of 1910, ch. 659.) The Legislature of 1924 had full power to sanction, and did expressly sanction, the appointments made by the Mayor. It had full power to provide for the abolition of the offices of justices of the Court of Special Sessions previously held by those who might become the appointees of the Mayor. It did so provide in terms so clear that they may not be misunderstood. When the justices received their appointments their offices as justices of the Court of Special Sessions ceased to exist. Accordingly, no vacancies were created which the Mayor might be required to fill.

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

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

Orders reversed, etc.


author: Andrews, J.

text:
    In the Matter of the Petition of William P. Zwilling et al., Appellants, for a Judicial Construction of the Will of Margaret K. Rooker, Deceased. Protestant St. John’s Charitable Association et al., Respondents.
    Will — trust — gift of balance of income, without restriction, to two nephews, with direction that on death of cestui que trust each, or his issue, shall receive from principal difference between amount of income received and an amount named — later clause stating it to be intention of testatrix that nephews and their issue receive of both principal and interest the aggregate sum named — will construed so as to give nephews all income in excess of amount paid to cestui que trust and on her death if they have received the stated sum the principal to belong to the residuary legatees.
    Under the provisions of a will whereby testatrix gave the residue of her estate to a trustee with a direction to pay to her sister as long as she lived a stated sum yearly and if the income exceeded that amount, divide the balance between two nephews, and upon the death of her sister pay to the nephews out of the principal and to his issue, if one be dead, one-half of the result obtained by deducting from the sum of $6,000 the amount of all income theretofore paid to both nephews, “ it being my intention that my said nephews, or my said nephews and their issue shall receive of both principal and income the aggregate sum of $6,000,” a contention that once each nephew has been paid $3,000 out of income their interest in the estate ends, cannot be sustained. The will should be so construed as to give to the nephews all income received by the trustee in excess of the amount paid yearly to the sister of testatrix. If at her death they have already received $6,000 the principal belongs to the residuary legatees.

      Matter of Rooker, 222 App. Div. 717, reversed.
    (Submitted May 11, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 16, 1927, which unanimously affirmed a decree of the Wayne County Surrogate’s Court construing the will of Margaret K. Rooker, deceased.

      Mortimer L. Sullivan for appellants.
    The testamentary intention of Margaret K. Hooker, deceased, was that all of the income from her estate after paying an annuity of $200 to her sister, should be paid over to the petitioners as long as their mother is alive. (Goodwin v. Coddington, 154 N. Y. 292; Tillman v. Ogren, 227 N. Y. 495; Williams v. Bout, 101 App. Div. 593; 184 N. Y. 605; Matter of Edie, 117 App. Div. 310.)

      William G. Staudenmaier and Francis S. Macomber for respondents.
    The will of Margaret K. Hooker, deceased, should be construed so that the total amount of both principal and income to be received by petitioners shall be limited in the aggregate to $3,000 each. (Matter of Farmers Loan & Trust Co., 213 N. Y. 175; Matter of While, 125 N. Y. 550; Matter of Werlich, 230 N. Y. 516; Matter of Lally, 136 App. Div. 787; 198 N. Y. 608; Eidt v. Eidt, 203 N. Y. 328; Van Vechten v. Keater, 63 N. Y. 55; Matter of Beuchner, 226 N. Y. 440; Roe v. Vingut, 117 N. Y. 204; Hadcock v. Cody, 213 N. Y. 570; Matter of Scott, 204 N. Y. 478; Weeks v. Cornwell, 104 N. Y. 325; Tilden v. Green, 130 N. Y. 29; Matter of Hoffman, 201 N. Y. 247.)
   Andrews, J.

We are called upon to determine the intent of a testatrix, as shown by the confused provisions of a will. Margaret Hooker bequeathed the residue of her estate to a trustee. It is told to pay from the income $200 per annum to a sister, and any balance remaining to two nephews or to the survivor of them. Upon the death of the sister the trust is to end and the principal is to be divided. Precisely how this is to be done is stated. If the nephews survive, each is to receive such sum as together with the income already paid him, shall amount to $3,000. If one be dead, then his legacy shall go to his issue if any, or if none to the surviving nephew. Only, in the. case of death, the legacy both toi the survivor and to the representatives of the deceased is to be calculated by subtracting from $6,000 the amount of all income paid to both nephews. What is then bequeathed to each legatee is one-half of the sum so found.

So far the result is clear. During the sister’s life, her sons, the nephews of the testatrix, are to receive all income not payable to her. At her death, they are to receive much or little or nothing, dependent upon the amount of the benefits which have already come to them from the estate. The result might be unfair. If one nephew dies immediately after the testatrix, if the sister survives until the surviving nephew has received $6,000 of income, then the issue of the former would receive nothing. Still that is the will of Mrs. Rooker.

Now, however, comes the phrase that has caused doubt. We have been dealing with the distribution of the principal after the sister’s death. We are told what is to be done if both nephews survive; what, if one dies? Then the will continues: “It being my intention that my said nephews and their issue shall receive of both principal and income the aggregate sum of $6,000.” Does this mean that they are to receive the sum of $6,000 and no more? That once each has been paid out of income $3,000, their interest in the estate ends, thus cutting down the previous bequest to them of all surplus income, or has Mrs. Rooker still in mind the final distribution of the principal, and is she restating her desire that when the time for such distribution comes her nephews are to have but $6,000 less what income they have already received?

The matter has become important. Mrs. Rooker died in 1920. Her sister and her nephews are still living. After paying the sister her $200 per annum the trustee now has in its hands over $8,000 of income. Shall the excess over $6,000 and any future excess be paid to the nephews, or as it may not be accumulated, shall it be paid to two charitable corporations who are the residuary legatees?

The truth is that in all probability the testatrix never thought of such a possibility. How large the estate was. does not appear. But at test she expresses doubt whether the income will always or ever exceed $200 annually. Yet as best we may we must endeavor to give a meaning to what she has said, even if in so doing we impute to her an intention that had no real existence.

Little argument is possible. But this at test i§ true. She .has given the income without restriction to the nephews. The doubtful clause is part of the sentence providing for the final fate of the trust fund. It does not expressly state that $6,000 is all they shall receive in any event. Nor does there seem to be anything in a later provision of the will, bequeathing to each nephew a-legacy of $3,000, should the sister die before the testatrix, that throws light on the subject.

The intention of the deceased is always to guide us in the construction of a will. When that can be discovered it will not be affected by any rule of construction. When doubtful, however, the courts have adopted such rules as to matters supposed to influence the average mind, and so to shed light where otherwise would be but darkness.

Where a benefit is clearly given it will not be cut down by subsequent language not equally clear. The intent to give what he says he gives is the main thought of the testator. Ordinarily if he believes the gift too great he will leave no doubt of his intention. Of two doubtful interpretations, that favoring the blood of the testator rather than strangers will be adopted. Human nature usually so acts. A construction harmonizing a clause and the law is to be preferred to one unauthorized. An intent to direct an illegal accumulation of income is not to be lightly inferred.

With these considerations in mind the will should be so construed as to give to the nephews all income received1 by the trustee in excess of $200 a year during the life of their mother. If at her death they have already received. $6,000, the principal belongs to the residuary legatees.

The order of the Appellate Division and the decree of the surrogate should be reversed and a decree directed construing the will as herein provided with one bill of costs in all courts to the appellants and another to the respondents payable out of the estate.

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

Ordered accordingly.