author: Lehman, J.

text:
    Grace A. Fendler, Respondent, v. Oliver Morosco et al., Appellants.
    (Argued January 15, 1930;
    decided March 18, 1930.)

      Charles H. Tuttle, Carl E. Peterson and Alfred Beekman for appellants.
    There is no evidence that defendant Tully copied anything from the plaintiff. (13 Corpus Juris, 1217; Trow Directory Co. v. U. S. Directory Co., 122 Fed. Rep. 191; Hotten v. Arthur, 1 Hem. & M. 603.) The few similarities between the new matter in defendant Tully’s completed play and the plaintiff’s play are no evidence of copying by him. (Underhill v. Belasco, 254 Fed. Rep. 838; Stevenson v. Harris, 238 Fed. Rep. 432; Bobbs-Merrill Co. v. Equitable Motion Pictures Corp., 232 Fed. Rep. 791; Bachman v. Belasco, 224 Fed. Rep. 815; Hubges v. Belasco, 130 Fed. Rep. 388.) The two plays are so unlike in theme, development, plot, impression and moral that there is no recognizable identity and no possibility of actionability. It is the plot, and not mere incident, which determines actionability. (Curwood v. Affiliated Distributors, 283 Fed. Rep. 223; Eichel v. Marcin, 241 Fed. Rep. 404; Vernon v. Shubert, 220 Fed. Rep. 694; Stodart v. Mutual Film Corp., 249 Fed. Rep. 507; Hubges v. Belasco, 130 Fed. Rep. 388; Stevenson v. Harris, 238 Fed. Rep. 432; Underhill v. Belasco, 254 Fed. Rep. 838.)

      Walter H. Poliak, William Rand, Melville H. Cane, Carl S. Stern, Robert C. Rand, Harold A. Fendler and Paul N. Turner for respondent.
    The resemblances were so many and so striking that they could not have occurred by mere coincidence but must have resulted from willful misappropriation. (Chappell v. Fields, 210 Fed. Rep. 864; Falk v. Donaldson, 57 Fed. Rep. 32; Boosey v. Empire Musical Co., 224 Fed. Rep. 646; Fisher v. Dillingham, 298 Fed. Rep. 145; Chicago Record-Herald Co. v. Tribune Assn., 275 Fed. Rep. 797; Maurel v. Smith, 220 Fed. Rep. 195; National Institute, Inc., v. Nutt, 28 Fed. Rep. [2d] 132; West Publishing Co. v. Thompson, 169 Fed. Rep. 854; Daly v. Webster, 56 Fed. Rep. 483; Dam v. Kirk La Shelle Co., 175 Fed. Rep. 902; Italian Book Co. v. Rossi, 27 Fed. Rep. [2d] 1014; Van Heusen v. Earl & Wilson, 300 Fed. Rep. 922; Franc-Strohmenger & Cowan v. Seigman, 27 Fed. Rep. [2d] 785; Kurtz v. Belle, 280 Fed. Rep. 277; Haas v. Feist, 234 Fed. Rep. 105.) The judgment was amply supported by the findings. (Belford v. Scribner, 144 U. S. 488; Callaghan v. Myers, 128 U. S. 617; Dam v. Kirk La Shelle Co., 175 Fed. Rep. 902; Callaghan v. Myers, 128 U. S. 666; Mawman v. Tegg, 2 Russ. 385.)
   Lehman, J.

In April, 1911, the defendant Tully copyrighted a play called “ The Bird of Paradise.” It was produced by the defendant Morosco in September, 1911. In February, 1912, the plaintiff, claiming that the play was substantially copied from a play called “ In Hawaii ” which she had written, began this action to enjoin the defendants from producing the play. As an incident to that relief she asked an accounting. After a motion for a preliminary injunction was denied, the case was marked reserved generally ” upon the calendar of the court, and was not brought to trial till 1924. Then the court granted an injunction and ordered an accounting of the profits of the defendants. Final judgment has now been awarded to the plaintiff for more than $780,000.

At the time when the defendants copyrighted and produced the play The Bird of Paradise,” the play “ In Hawaii ” had not been published. It was not copyrighted till five years thereafter. It has never been produced or generally distributed. Though the copies introduced in evidence by the plaintiff were concededly typewritten after this suit was begun, the plaintiff produced evidence to show that her play was completed in 1909, and that in March, 1910, she submitted a copy of the manuscript of her play to the defendant Morosco at his office in Los Angeles. Concededly neither defendant had access to the play In Hawaii ” before that time.

The plaintiff has annexed to the complaint a schedule of material which she claims is common to both plays. In both plays the scene is laid in the Hawaiian Islands. In dramatic form both plays present a story in which a young American, who has come to the Hawaiian Islands to work, succumbs to the charms of a native Hawaiian maiden. In both, native customs, religious rites, songs, dances and folklore are introduced as a background for the story and form a significant part of the dramatic composition. A detailed analysis of similarities and differences in the matter which it is claimed in the schedule is common to both plays, would serve no purpose at this point, for it appears without dispute that much of that matter could not have been taken by the defendant Tully from the plaintiffs play. An elaborate “ scenario ” for the play The Bird of Paradise ” was written by Tully and submitted by him to the managers of the New Theatre in New York city prior to March 22, 1910. On that day a written contract was made for the production of a completed play to be based on the scenario, with some changes suggested by the managers. Tully then received $500 as advance royalties, and immediately started for Hawaii, by way of California, to obtain additional material for the play. Concededly Tully did not, prior to that time, have access to the play “ In Hawaii,” and took none of the material of the scenario from that play. In large part the finished play “The Bird of Paradise ” as copyrighted and produced in 1911 may be said to be the artistic development and elaboration of literary material contained in the scenario. Some changes have been made in the story, and some new material has been incorporated in the play. Only the new material could have been taken from the play “ In Hawaii.” The remainder is concededly not the literary property of the plaintiff, though the courts below have held that the literary property of the plaintiff is inextricably interwoven into the whole play “ The Bird of Paradise.”

Any claim that the defendant Tully derived from the play “ In Hawaii ” the conception of dramatizing a story of the love of an American youth and a native Hawaiian maiden against a background of Hawaiian customs and manners, was abandoned by the plaintiff when it appeared that this conception was in fact embodied by Tully in literary form in the scenario. Some other claims of similarity in details set forth in the schedule are in fact illusory. Nevertheless, perhaps, there are sufficient points of similarity between the play “ In Hawaii ” and the play “ The Bird of Paradise to justify an inference that “ the resemblances and similarities between In Hawaii ’ and The Bird of Paradise ’ were so many and so striking that they could not have occurred by mere coincidence, but on the contrary that one of the parties must have had access to and appropriated ” some of the conceptions of the other. In fact the trial judge found in his decision that the defendant Tully and his counsel so conceded.

The plaintiff at the trial was compelled to rely on such an inference or concession as a basis for any claim that the defendant appropriated her literary property. The direct evidence produced by her, if believed, shows that she had written her play before “ The Bird of Paradise ” was completed, and that during the few weeks that Tully was in California after leaving New York and before going to Hawaii to. complete the play, “ The Bird of Paradise,” it was possible that the defendant Morosco might have shown her play to Tully. That he did show the play at that time rests upon conjecture, which is justified only if material common to the two plays, and which is not found in the scenario, presents resemblances so frequent and so striking that they could not have occurred by mere coincidence, but on the contrary that one of the parties must have had access to and appropriated ” some of the conceptions of the other. Throughout the trial the plaintiff made this contention.

The defendant Tully and his counsel also urged at the trial that similarities and resemblances in the two plays were significant. Indeed, the defendant Tully conceded on cross-examination that in his opinion the internal evidence in those two plays is of such strength as to make it manifest that material from one play must have been used in the other.” He was referring, however, to all the similarities and resemblances in the two plays. He did not exclude the material in The Bird of Paradise ” which was also in the scenario and which was concededly not derived from In Hawaii.” Independently, he had conceived, and embodied in the scenario, many features which appear in both plays. His contention throughout the trial was that every significant similarity and resemblance in the two plays might be found also in the scenario, and that since eoncededly he had prepared the scenario independently, this “ internal evidence ” made manifest that the material common to both plays was taken by the plaintiff from the defendant’s play " The Bird of Paradise ” and demonstrated that the plaintiff’s evidence that she had completed her play in 1909 and submitted the manuscript to Morosco in 1910 was false. Neither he nor his counsel ever conceded that in the material introduced into “ The Bird of Paradise,” after the scenario for the play was completed, any significant resemblances or similarities to the play “ In Hawaii ” can be found. Certainly neither conceded or was understood to concede that resemblances or similarities so frequent and so striking can be found as to require or justify an inference that they were not the result of coincidence.

The trial judge has found that the plaintiff completed her play in 1909. Then, of course, no material in that play could have been appropriated from the scenario or the play “ The Bird of Paradise,” completed thereafter. There is some evidence to sustain that finding, and the internal evidence of similarities in the play “ In Hawaii ” and the scenario of “ The Bird of Paradise ” does not conclusively show that plaintiff’s claim is false. Perhaps error in the exclusion of testimony offered by the defendant to show that plaintiff’s claim is a fabrication might require a new trial if that issue were decisive of the case. For the present we accept that finding. The question still remains whether the evidence fairly leads to the conclusion that the defendant Tully wrongfully appropriated any literary property of the plaintiff in completing his play after he had finished the scenario. Upon that question no concession made by the defendants or their counsel has any material bearing.

In general outline the plots of the plays In Hawaii ” and The Bird of Paradise ” are entirely dissimilar. True, as we have pointed out, the scene of both plays is laid in Hawaii, in both an American falls in love with a native Hawaiian girl, and in both the dramatist has sought to introduce an attractive and novel local color by presenting Hawaiian customs, religious rites, songs and dances; but the conception of a play which should have all these features was formed by Tully independently, for all these features are contained in the scenario as well as in the finished play. There may be literary property in a particular combination of ideas or in the form in which ideas are embodied. There can be none in the ideas. “ Ideas, it has always been admitted, even by the Stationers Company, are free as air. If you happen to have any, you fling them into the common stock, and ought to be well content to see your poorer brethren thriving upon them.” (“ Copyright in Books, ” by Augustine Birrell, page 167.) In the form in which these basic ideas are embodied, little, if any, similarity in The Bird of Paradise ” and In Hawaii ” can be found.

In his scenario Tully sets forth certain basic themes which he has sought to present in dramatic form. The disappearance of the so-called inferior races before the advancement of the Anglo-Saxon race. * * * Degeneracy and death is the penalty that has always been paid by the higher race that seeks to raise the lower by amalgamating with it. * * * The play * * * thoroughly dramatizes the well-known fact that though we dress, educate and polish the members of a lower race to the superficial religious and social equality with the Caucasian, at heart he is still the fetish-worshipping savage who will become atavistic in every moment of stress. * * * The play is only a tragedy in one sense — that is for the girl who represents the weaker race and the man who mates with her. Hope and salvation are working out for the dissolute beach-comber who climbs from degradation to the highest honor among men through his having kept himself racially pure and his mating with the clear-eyed intelligent girl of his own kind.”

The play “ The Bird of Paradise ” as outlined in the scenario, and as copyrighted and produced in its changed and completed form, presents these basic themes. A young man fresh from college comes to Hawaii to work among the lepers of Molokai. The steamer stops at one of the other Hawaiian Islands. There he meets and falls in love with a beautiful Hawaiian girl who has been brought up as his daughter by an Hawaiian priest. They marry, and instead of proceeding to Molokai, he stays on the island with her and her friends and family. There the young wife is happy, but the young husband loses his ambition and his self-respect. With a light heart she has accepted the religious and moral precepts of an American missionary and has discarded the religious myths of the Hawaiians, yet the discarded myths and the rejected superstitions of her own people exercise a more potent sway over her than the accepted religious and moral precepts of an alien people. Joyous and beautiful as a bird of paradise in the tropical forest, she flutters about like a caged bird when the conventions of Western social life restrain her freedom. For love of her husband she follows him into a world of Western conventions, only to find that there she is an incubus upon her husband. She leaves him to cast herself into a volcano to appease the wrath of the goddess Pele.

Intertwined in this story of the love and marriage of a Caucasian and an Hawaiian is the story of the love of two Americans. Together they go to Molokai to work among the lepers, and the man, who has been a beachcomber and a social outcast, there regains his ambition and self-respect and succeeds in isolating the germ of leprosy.

The story of the play In Hawaii ” shows no traces of similar basic themes. A young American physician has come to Hawaii under an assumed name. There he discovers the germ of leprosy. He was married in America, but in Hawaii he falls in love with an Hawaiian princess, and when she proudly spurns his offer of illicit love he offers to marry her. She is the daughter of a foreign nobleman, but through her mother she is the last descendant of the royal line of Kamehameha. She is wealthy and socially sophisticated, indeed, the leader of the cosmopolitan society of Honolulu. She has renounced the throne though the legitimate sovereign of the islands. At the risk of death she spurns the offer of marriage of the American doctor. Then the doctor’s wife opportunely arrives to comfort him, and the Hawaiian princess triumphantly awaits the coming of another foreign nobleman whom she has promised to marry.

In spite of the entire dissimilarity of the two plays in theme and story there are many similarities in detail. Perhaps this is inevitable in two plays about Hawaii. The very name Hawaii seems to suggest to Americans the hula dance and the sport of swimming; flowers and sunshine and music. It suggests too the dread disease of leprosy. All these things are introduced, though with varying emphasis in both plays. Doubtless the value of the producing rights of the plaintiff’s play must have suffered by the successful production of any play about Hawaii. Of that she cannot be heard to complain. The defendants’ right to produce the play outlined in the scenario was not qualified, though it appears that the plaintiff had completed her play earlier. They might not, however, after the scenario was written, appropriate literary property of the plaintiff and insert it in the finished play based on the scenario.

We have pointed out that when the managers of the New Theatre accepted the play as outlined in the scenario, they suggested certain changes, and that the play was completed in final form in accordance with these changes after Tully had visited Hawaii. We are concerned only with the new material that then found its way into the defendants’ play. In the scenario the last act takes place in New York, where the young American husband had brought his Hawaiian wife. The suggestion was made that the whole play should take place in Hawaii. In the finished play the last scene took place in Honolulu. The circumstances which served to explain the move from one of the smaller islands to New York furnished no explanation of the move to Honolulu. To that extent it was necessary to introduce new elements into the story of the play. In the finished play the character, manners and traditions of the Hawaiian wife remain unchanged, but no longer is she the daughter of the priest who brought her up. She is the last of the legitimate royal line of Kamehameha, though until her eighteenth birthday she was in ignorance of her royal descent. An American trader who leads a revolution in Hawaii to promote his own commercial purposes offers her the throne with the suggestion that she is to be queen in name and form while he runs the government. She refuses, but at her husband’s urging moves to Honolulu to give him opportunity to play an important role in the new provisional government. In the play In Hawaii ” the heroine is, as we have pointed out, the last descendant of Kamehameha and has renounced the throne. In that play, too, the reigning sovereign is only a figurehead, with an American prime minister who runs the government. Other new material, too, is indicated by the plaintiff which may have been suggested by a reading of plaintiff’s play.

The line of Kamehameha was in fact the legitimate royal line of Hawaii until it died out. There were in fact stories current that a princess of the royal line survived. So, too, there had at one time been an American prime minister who held most of the important offices in Hawaii and completely dominated its government. The plaintiff, who at one time lived in Hawaii, took historic facts and common stories and embodied them in her play. She acquired no exclusive property in them. Others might use them at their will in different combinations and forms. We are not now considering whether the defendant Tully made a fair use of plaintiff’s play. Since plaintiff had not published or produced her play, perhaps any use that others made of it might be unfair. Perhaps a wrong was committed if the defendant Tully even read the play. This action is not brought to redress such wrong. We consider only whether the defendants have appropriated the plaintiff’s literary property.

“ Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtile and refined, and, sometimes, almost evanescent. * * * So, in cases of copyright, it 'is often exceedingly obvious, that the whole substance of one work has been copied from another, with slight omissions and formal differences only, which can be treated in no other way than as studied evasions; whereas, in other cases, the identity of the two works in substance, and the question of piracy, often depend upon a nice balance of the comparative use made in one of the materials of the other; the nature, extent and value of the materials thus used; the objects of each work; and the degree to which each writer may be fairly presumed to have resorted to the same common sources of information or to have exercised the same common diligence in the selection and arrangement of the materials.” (Per Story, Circuit Judge, in Folsom v. Marsh, 2 Story, 100; 9 Fed. Cas. 4901.)

Where decision depends upon a “ nice balance ” of such factors, then perhaps it may be said that a question of fact is presented. Here, a reading of the record discloses no evidence which could fairly lead to an inference that Tully copied the plaintiff’s play and appropriated her literary property. He conceived the basic theme of bis play before he had opportunity to read the plaintiff’s play. Even after the time when, it is said, he read the plaintiff’s play and appropriated from that play details of Hawaiian customs, religious rites, songs and dances, he went to Hawaii for the purpose of acquiring knowledge about, such matters. We have examined in detail all the material which the plaintiff claims was derived from her play. In part we find no similarity; in part we find in the scenario itself the same material though in an embryonic state; in part we find explanation of alleged similarity in the circumstance that both plays seek to present the life and customs of the same tropical islands. Material which may have been derived by Tully from the plaintiff’s play is either insignificant in itself or, as a result of the craftsmanship of Tully, has been changed in form and is used in entirely different combination.

In determining the effect of the use of such material, we can derive little aid from a restatement of the decisions arrived at by the courts in the reported cases, for each case was decided upon its own facts. All use similar tests, though exact formulation of the test is as difficult as its application when the question is close. (See Weil on American Copyright Law, § 1030.) Augustine Birrell, a literary craftsman as well as a distinguished practitioner and teacher, has said: The literary Iarcenist must do more than filch ideas, imitate mannerisms, repeat information, borrow phrases, utilize quotations; you must be able to attribute to him the felonious intention of appropriating without independent labour a material part of a protected work.” (“ Copyright in Books,” p. 169.)

A part, however small, of a work which is appropriated is material where the result of the appropriation is the suggestion or impression of similarity or identity. (See West v. Francis, 5 B. & Ald. 737; Hanfstaengl v. Baines & Co., Ltd., [1895] A. C. 20; Boosey v. Empire Music Co., Inc., 224 Fed. Rep. 646; Chicago Record-Herald Co. v. Tribune Association, 275 Fed. Rep. 797.) Here, aside from the fact that both plays are Hawaiian in atmosphere and detail, there is no suggestion of similarity or identity in the finished plays; certainly no suggestion more potent than in the scenario. Changes made in the play after the scenario was completed may add new dramatic effect, but even though the effect may be the result of material derived from “ In Hawaii,” that material is used with different purpose and with different effect in The Bird of Paradise.”

We cannot attempt, in this opinion, to answer every contention of the plaintiff. We point out only that the changes, considered separately and in combination, do not affect the general impression made by the story told. Essentially every character introduced in the play is the same person conceived in the scenario and bears little if any resemblance to the characters of “In Hawaii.” The American trader, who, in The Bird of Paradise,” suggests for his own selfish purposes that the Hawaiian princess should become a queen, so that he might hold the real power in the new government, bears no resemblance to the historic character, introduced into “ In Hawaii,” of the American prime minister who is a loyal servant of the Hawaiian people though the master of its puppet king. Though both young men have come to Hawaii to study the disease of leprosy, the American physician, who in the play “ In Hawaii,” seeks with evil purpose the love of an Hawaiian princess and then regains the fine ideals of his early manhood, bears no resemblance to the young American in “ The Bird of Paradise ” who has come to Hawaii with high ideals and through his marriage with an Hawaiian girl, though she be a princess, loses his ideals. The wealthy, sophisticated Hawaiian princess of In Hawaii,” the idol of Honolulu society, the proud daughter of a foreign nobleman, the fit bride of another nobleman, bears no resemblance to the half-primitive Hawaiian girl, brought up by a priest as his daughter, the unfit bride of a degraded American, scorned by the society of Honolulu, though both are legitimate queens who have renounced the throne of Hawaii. Indeed, here similarities in situation emphasize essential differences. The insulting offer of an illicit love in In Hawaii ” is spurned because royal blood and social position make her superior to other Hawaiian natives, even superior to the white man who then offers her marriage. In “ The Bird of Paradise ” even royal birth brings only greater poignancy to the social stigma of a colored skin, so that at the end the princess ” exclaims: I am an Hawaiian princess and yet never will I be white. It is tabu — tabu to be my son and my son’s son; and after that, tabu.”

We have assumed that even these similarities in details are the result of suggestions derived from the play “ In Hawaii,” though argument to the contrary might be made. Even if a surreptitious reading of the play In Hawaii ” may have resulted in the introduction of some new material into The Bird of Paradise,” where resemblance is close the material is trivial in character and where the material is more important in the development of the story, then, at most, plaintiff’s ideas have been appropriated but used in different form and combination. No material part of plaintiff’s literary property has been appropriated. Neither in substance nor in embellishment is there any resemblance between the two plays. Details must be viewed in their setting; then resemblances vanish.

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

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

Judgment reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    James A. Tillman, Appellant, v. The Guaranty Trust Company of New York, Respondent.
    (Argued February 11, 1930;
    decided March 18, 1930.)

      Boris M. Komar for appellant.
    Under section 15 of the Civil Practice Act, in the case of a bank deposit the accrual of the right to make a demand does not commence the running of the Statute of Limitations. (Bills v. Silver King Mining Co., 106 Cal. 9; Biggs v. Palmer, 115 N. Y. 506; Sokoloff v. Nat. City Bank, 250 N. Y. 69; Delahunty v. Central Nat. Bank, 37 App. Div. 434; Nathan v. Equitable Trust Co., 250 N. Y. 250.) Under section 15 of the Civil Practice Act, the statute does not begin to run until a demand to pay a deposit is made on a bank, and the demand cannot be construed to mean either a disavowal of liability or a refusal to pay. (Bank of B. N. A. v. Merchants Nat. Bank, 91 N. Y. 107; Downs v. Phoenix Bank, 6 Hill, 298; Wasserstrom v. Public Bank, 123 N. Y. Supp. 56; Williams v. Flagg Storage Warehouse Co., 128 Misc. Rep. 566; Farmers Nat. Bank v. Wallace & Co., 263 S. W. Rep. 1105; Davenport v. Prince, 56 Fed. Rep. 186; Silverman v. Nat. City Bank, 133 Misc. Rep. 201; Shipman v. Bank of State of New York, 126 N. Y. 318; Hartford v. Greenwich Bank, 157 App. Div. 448.) Respondent’s letter did not give rise to the causes of action herein. (Brooklyn Heights R. R. Co. v. Brooklyn City R. R. Co., 105 App. Div. 88; Sokoloff v. Nat. City Bank, 250 N. Y. 69; Silverman v. Nat. City Bank, 133 Misc. Rep. 201; Bowen v. Young, 37 Misc. Rep. 547; Mitchell v. Baring, 10 B. & C. 4; Powell-Sanders Co. v. Carssow, 28 Idaho, 201; Merrifield. v. Cobleigh, 58 Man. 178; Kimball v. Rowland, 72 Mass. 224; Shaler v. Van Wormer, 33 Mo. 386; Davenport v. Prince, 56 Fed. Rep. 186; U. S. Fidelity & Guaranty Co. v. Union Bank & Trust Co., 228 Fed. Rep. 488.)

      Ralph M. Carson and William ,C. Cannon for respondent.
    Respondent’s letter when communicated to appellant’s assignors, gave rise immediately to the causes of action asserted in the complaint. (Sokoloff v. Nat. City Bank, 250 N. Y. 69; Delahunty v. Central Nat. Bank, 37 App. Div. 434; Farmers’ & Mechanics’ Bank v. Planters Bank, 10 Gill & J. 422; Mifflin Co. Nat. Bank v. Fourth Street Nat. Bank, 8 Pa. Dist. 477; Masonic Benefit Assn.
      v. First State Bank, 55 So. Rep. 408; First Nat. Bank v. Peck, 103 N. E. Rep. 643; U. S. Fidelity & Guaranty Co. v. Union Bank & Trust Co., 228 Fed. Rep. 448; Coleman v. First Nat. Bank, 43 S. W. Rep. 940.) There was an actual demand precedent to the refusal. (Sokoloff v. Nat. City Bank, 250 N. Y. 69; Silverman v. Nat. City Bank, 133 Misc. Rep. 201.)
   Per Curiam.

The complaint sets forth a cause of action for a deposit of money not to be repaid at a fixed time but only upon special demand. In October, 1920, the Deutsche Bank at the request of the depositor sent to the defendant a letter of inquiry concerning the status of the deposit account. The letter contained no present demand for the payment or transfer of the money on deposit. Demand was to await the reply to the inquiry. The defendant in reply stated unequivocally that the plaintiff’s assignors had no valid claim to any deposit and that the defendant held no balance ” at their disposal. Thereafter no demand was necessary to entitle the plaintiff’s assignors to maintain an action for the money on deposit. (Riggs v. Palmer, 115 N. Y. 506; Sokoloff v. National City Bank, 250 N. Y. 69.) The period of limitation during which an action may be brought must be computed from the time of the accruing of the right to relief by action, except as otherwise specifically prescribed by statute. (Civ. Prac. Act, § 15.) Special rules prescribed in section 15 of the Practice Act govern the computation of periods of limitation where a right exists but a demand is necessary to entitle a person to maintain an action. So long as demand is necessary to entitle a depositor to bring an action, the provisions of section 15 apply. They have no application after right to relief by action is complete without demand. By failure to make a demand which is unnecessary, a depositor cannot prevent the period of limitation from running against a cause of action which he is entitled to maintain without demand.

The court at Special Term did not err either in denying the motion to vacate the ex parte order extending defendant’s time, or in granting the motion to dismiss the complaint.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    Jessar Realty Corporation, Respondent, v. The Louis Friedman Realty Co., Inc., Appellant.
    (Submitted February 14, 1930;
    decided March 18, 1930.)

      Isidor Mates for appellant.

      Herman Scheckner for respondent.
    Since April 15, 1928, was a Sunday, the plaintiff’s time to cancel the contract was extended to the following day. (Gen. Const. Law, §§ 20, 25; Gilbert v. Johnson, 169 App. Div. 840; Gribbon v. Frell, 93 N. Y. 93; Binder v. Metropolitan St. Ry. Co., 68 App. Div. 281; Sun Printing & Pub. Co. v. Remington, 235 N. Y. 338; Joannides v. Assimacy, 216 App. Div. 133.)
   Per Curiam.

The plaintiff’s right to cancel the contract was subject to the condition that the plaintiff must exercise that right by notice to the seller’s attorney sent by registered mail on or before April fifteenth. Because April fifteenth fell on a Sunday, the plaintiff postponed sending the notice by registered mail till April sixteenth. We do not pass upon the question whether section 25 of the General Construction Law (Cons. Laws, ch. 22) has any application to a contract which does not require the performance of a condition on a public holiday, but merely provides that an option must be exercised on or before a date which happens to fall on a Sunday. (See Joannides v. Assimacy, 216 App. Div. 133; Page v. Shainwald, 169 N. Y. 246.) Here the contract provided in addition, Should, however, the seller’s attorney not receive the registered notice herein referred to on or before April 16th, 1928, then and in such event the right of the purchasers to cancel the contract shall be deemed to have expired.” The terms of section 25 of the General Construction Law can have no application to that provision. The notice was received on April seventeenth. Then the right had by its terms expired.

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

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

Judgment accordingly.


text:
    Fannie Kraus, Respondent, v. Marie M. Wolf, Appellant.
    (Argued February 13, 1930;
    decided March 18, 1930.)

      Theodore II. Lord and James B. Henney for appellant.
    There was no evidence of any defect or proof of any condition likely to cause a person using the step to slip. (Curtis v. L. I. R. R. Co., 233 N. Y. 554; Tryon v. Chalmers, 205 App. Div. 816; Abbott v. Richmond Co. Country Club, 211 App. Div. 233; Dwyer v. Hills Bros. Co., 79 App. Div. 45; Kipp v. Woolworth & Co., 150 App. Div. 283; Green v. Green, 212 App. Div. 381; Mona v. Erion, 223 App. Div. 526.)

      William F. McNulty, Harold R. Medina and Joseph Levy for respondent.
    The question of the defendant’s negligence was clearly and essentially one of fact and the trial court had no alternative than to submit the same to the jury. (Sciolaro v. Asch, 198 N. Y. 77; Maroney v. City of New York, 117 App. Div. 843; 190 N. Y. 560; Glynne v. National Exhibition Co., 204 App. Div. 757; McGuire v. N. Y. Rys. Co., 230 N. Y. 23; Curtiss v. Lehigh Valley R. R. Co., 233 N. Y. 554; Tryon v. Chalmers, 205 App. Div. 816; Abbott v. Richmond Co. Country Club, 211 App. Div. 233; Mona v. Erion, 223 App. Div. 526; Dewyer v. Hills Bros. Co., 79 App. Div. 45; Kipp v. Woolworth & Co., 150 App. Div. 283; Green v. Green, 212 App. Div. 381; Venable v. Consolidated Dry Goods Co., 225 App. Div. 202; 251 N. Y. 585.)
   Per Curiam.

A small pool of water in a slight depression, caused by wear, on the surface of an outdoor step creates no dangerous condition, and reasonable care did not require the defendant to prevent or remedy such condition.

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

Judgments reversed, etc.


text:
    The People of the State of New York, Respondent, v. Thomas Corrigan et al., Appellants.
    (Argued February 17, 1930;
    decided March 18, 1930.)

      William J. Rapp for appellants.
    It is error to find a material fact when there is a total absence of evidence to sustain it. (Mason v. Lord, 40 N. Y. 476; Pollock v. Pollock, 71 N. Y. 137; Root v. Great Western R. R. Co., 45 N. Y. 524; Duffy v. Masterson, 44 N. Y. 557.) The case is barren of evidence that the defendants willfully injured the person or property of the complaining witness or any one else, and should have been dismissed at the close of the People’s case. (Wass v. Stephens, 128 N. Y. 123; McMorris v. Howell, 89 App. Div. 272; People v. Martinitis, 168 App. Div. 446.)

      Frank H. Coyne, District Attorney (James E. Dempsey of counsel), for respondent.
    The Court of Appeals is concluded by the findings of fact provided such findings are supported by any evidence. (People v. McCarthy, 250 N. Y. 358; Austin v. New Jersey Steamboat Co., 43 N. Y. 75; Mason v. Lord, 40 N. Y. 477.) The acts of the defendants were committed willfully and wrongfully in violation of section 43 of the Penal Law. (Ampersand Hotel Co. v. Home Ins. Co., 131 App. Div. 361; Kantor v. Cohn, 181 App. Div. 400; People v. Martinitis, 168 App. Div. 466; U. S. v. Stickrath, 242 Fed. Rep. 151; U. S. v. Ragansley, 253 Fed. Rep. 643; People v. Malone, 156 App. Div. 10; People v. Harden, 110 Misc. Rep. 72; People v. Stevens, 109 N. Y. 159; Wass v. Stephens, 128 N. Y. 123.)
   Per Curiam.

There is no evidence tending to prove that defendants entered the garage at 34 Ridgeland road or any other garage, or that they tried the doors of the house at 34 Ridgeland road or any other house or that they even entered upon private premises at No. 34 Ridgeland road or at No. 10 Avondale road or any other private premises or that they committed any of the acts set forth in the information. There is no evidence that either defendant committed any act which seriously disturbed or endangered the public peace or health or in any manner violated the provisions of section 43 of the Penal Law. The judgment of the County Court and that of the Court of Special Sessions should be reversed and the information dismissed.

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

Judgments reversed, etc.


text:
    In the Matter of the Claim of John Griffin, Respondent, against Cruikshank Co., Inc., Appellant. State Industrial Board, Respondent.
    (Argued February 11, 1930;
    decided March 18, 1930.)

      James F. Donnelly, Edwin A. Jones and Irving W. Young, Jr., for appellant.
    Appellant was not an employer within group 13; nor was its principal business that of carrying on or conducting a hazardous employment, under the Workmen’s Compensation Law. (Westbay v. Curtis, 198 App. Div. 25; 232 N. Y. 555; Grassel v. Broadhead, 175 App. Div. 874; Matter of Wilson v. Dorflinger, 218 N. Y. 84; Bailey v. School Dist., 204 App. Div. 125; Hungerford v. Bonn, 183 App. Div. 818; Matter of Schmidt v. Berger, 221 N. Y. 26; Grand Rapids & I. Ry. Co. v. Doyle, 245 Fed. Rep. 792; San Francisco & P. S. S. Co. v. Scott, 253 Fed. Rep. 854; Rogers v. C., B. & Q. R. R. Co., 107 N. E. Rep. 222; Matter of Orleans Parish v. Murphy, 101 So. Rep. 268; Kendrick v. Roberts, 72 Atl. Rep. 461; Kovachoff v. St. John Lumber Co., 121 Pac. Rep. 801; Seaboard Nat. Bank v. Woesten, 48 S. W. Rep. 939; Krug v. City of New York, 196 App. Div. 226; Ryan v. City of New York, 228 N. Y. 16; Altz v. Leiberson, 233 N. Y. 16.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
    The appellant was conducting a hazardous business which comes under the Workmen’s Compensation Law. (Westbay v. Curtis & Sanger, 232 N. Y. 555; Krinsky v. Ward & Gow, 193 App. Div. 557; 231 N. Y. 525; 259 U. S. 503.)
   Per Curiam.

Although the principal business of the employer was not a hazardous employment within the enumeration of the Workmen’s Compensation Law (Cons. Laws, ch. 67, § 3), the claimant-employee was a person engaged in one of the hazardous employments so enumerated, to wit: Group 2, the Care of Buildings, and hence entitled to compensation under the provisions of section 2, subdivision 4 (Matter of Glatzl v. Stumpp, 220 N. Y. 71).

The order should be affirmed with costs.

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

Order affirmed.


author: Pound, J.

text:
    The People of the State of New York, Appellant, v. Antonio Perretta, Respondent. Actions 1 and 2.
    (Argued March 17, 1930;
    decided April 8, 1930.)

      Hamilton Ward, Attorney-General (George L. Flanders, Louis B. Shay and Samuel H. King of counsel), for appellant.
    The statute is constitutional. (People v. Beakes Dairy Co., 222 N. Y. 416; People v. Teuscher, 129 Misc. Rep. 94; 222 App. Div. 791, 248 N. Y. 454; City of Buffalo v. Hawks, 226 App. Div. 480; Dunham v. Ottinger, 127 Misc. Rep. 683; 243 N. Y. 423; Nash v. Loughman, 220 App. Div. 549; 247 N. Y. 649; Bareham v. City of Rochester, 128 Misc. Rep. 642; 221 App. Div. 36; 246 N. Y. 140; Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458.) The regulation is a valid exercise of the police power of the State and offends neither the State nor the Federal Constitution. (People v. Federated Radio Corp., 216 App. Div. 250; People v. Luhrs, 195 N. Y. 377; People v. Weller, 237 N. Y. 316; People ex rel. Nechamcus v. Warden, 144 N. Y. 529; Biddles, Inc., v. Enright, 239 N. Y. 354; Holden v. Hardy, 169 U. S. 366; Guffanti v. National Surety Co., 196 N. Y. 452; Musco v. United Surety Co., 196 N. Y. 459; People v. Brazee, 183 Mich. 259; 241 U. S. 340; Lasher v. People, 183 Ill. 226; State v. Wagener, 77 Minn. 483; State v. Bowen & Co., Inc., 86 Wash. 23; Jacobson v. Massachusetts, 187 U. S. 11; Campagnie Francaise v. Louisiana, 186 U. S. 380; Noble State Bank v. Haskell, 219 U. S. 104.) The provision in the statute for the payment of any balance on the bond into the State treasury is constitutional. (Phœnix Indemnity Co. v. Staten Island R. T. Ry. Co., 251 N. Y. 127; People v. Griswold, 213 N. Y. 92.)

      Nicholas G. Powers for respondent.
    The statute is unconstitutional. (People v. Beakes Dairy Co., 179 App. Div. 972; 222 N. Y. 416; People v. Gillson, 109 N. Y. 389; Grossman v. Caminez, 79 App. Div. 15; People v. Murphy,
      195 N. Y. 126; Matter of Young, 209 U. S. 123; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150; People v. Wellar, 237 N. Y. 316; Tyson v. Banton, 273 U. S. 417; People v. Worden, 183 N. Y. 223; Merrick v. Halsey, 242 U. S. 568; Hall v. Geiger, 242 U. S. 539; Caldwell v. Falls Stock Yard Co., 242 IT. S. 559.) The provision that the penalty of the bond after the payment of debts shall be confiscated is unconstitutional. (Phoenix Indemnity Co. v. Staten Island Ry. Co., 251 N. Y. 127.) Interference under the police power must be in response to a great public need, and is not warranted in this matter. (Noble State Bank v. Haskell, 219 U. S. 104; Canfield v. United States, 167 U. S. 518; Hudson Co. Water Co. v. McCarter, 209 U. S. 349.)
   Pound, J.

The actions are each brought to recover a penalty of $100 on the ground that defendant carried on the business of conducting a milk-gathering station or plant without a license, in violation of section 252 of the Agriculture and Markets Law (Cons. Laws, ch. 69).

Each complaint states a cause of action in proper form but the defendant challenges the constitutionality of the law requiring him to obtain a license, on the ground that it denies to him the equal protection of the law and deprives him of his liberty without due process of law, contrary to the guarantees of the Fourteenth Amendment to the United States Constitution.

The act in question prohibits any person or corporation from operating a milk-gathering station, manufactory or plant where milk or cream is received or purchased from producers for sale or resale or for manufacture unless licensed by the Commissioner of Agriculture and Markets. The section requires that an applicant for license shall satisfy the Commissioner of his character, financial responsibility and good faith in seeking to operate a milk-gathering station or plant, and shall pay a license fee of ten dollars. No license shall be issued unless the applicant shall execute and file with the application a bond, or be relieved from filing the same as provided in the next section. Section 253 of the same act provides that the security required shall be a surety company bond in an amount approved by the Commissioner, and shall be conditioned for the faithful compliance by the licensee with the provisions of this chapter, and for the prompt payment of all amounts due to producers for milk or cream sold by them to such licensee, during the license year.” Section 253 further provides that upon default by the licensee in the payment of any money due for the purchase of milk or cream, the creditor may file with the Commissioner a verified statement of his claim, and if the same has been reduced to judgment, a transcript of said judgment. The section then provides: Upon default by the licensee in any of the conditions of the bond, an action upon the bond shall be brought by the commissioner. All moneys collected upon such bond shall be applied by the commissioner, first, to the payment ratably of all verified claims promptly filed with the commissioner after reasonable notice to present claims arising during the license period in connection with which the bond was given and the balance shall be paid into the state treasury.” The bond is not required if the Commissioner is satisfied from an investigation that the applicant is solvent and possessed of sufficient assets to reasonably assure compensation to probable creditors.

In brief, the law limits the right of persons or corporations to conduct milk-gathering stations as defined by the act to those of approved character, financial responsibility and good faith, licensed by the Commissioner for the purpose, after giving an approved bond to secure the prompt payment of all amounts due to producers or, in lieu thereof, satisfying the Commissioner of their ability to pay probable creditors.

This act is, in substance, the re-enactment of a former law which was before the court for consideration in People v. Beakes Dairy Co. (222 N. Y. 416; annotated, 3 A. L. R. 1271) and was there upheld as a proper regulation of the reserved power to amend the charters of domestic corporations, expressly reserving the question of the power of the Legislature thus to regulate the business of individuals. A corporation is a person and as such is entitled to the equal protection of the laws (Liggett Co. v. Baldridge, 278 U. S. 105) and if the legislation is a competent exercise of legislative power over corporations, it would seem that it is also a proper exercise of such power over individuals. (Matter of Mount Sinai Hospital, 250 N. Y. 103.)

The police power is “ the least limitable of the powers of government.” (District of Columbia v. Brooke, 214 U. S. 138, 149.) It extends to all the great public needs. (Camfield v. United States, 167 U. S. 518.) The validity of police regulations must depend on the circumstances of each case and the character of the regulation, whether arbitrary or reasonable. A legitimate public purpose may always be served without regard to the constitutional limitations of due process and equal protection. (People ex rel. Durham Realty Co. v. La Petra, 230 N. Y. 429; New York ex rel. Bryant v. Zimmerman, 278 U. S. 63.)

The Legislature has a wide discretion in protecting the public from the dishonest or irresponsible. (Roman v. Lobe, 243 N. Y. 51; People v. Teuscher, 248 N. Y. 454.) The question is how to apply the test. Is it a public evil to permit irresponsible persons and corporations to operate milk-gathering stations although they may engage in many other legal callings at will? If so, milk gatherers may be put into a particular class. (New York ex rel. Bryant v. Zimmerman, supra.) In the Beakes case, Kellogg, P. J., in a dissenting opinion in the Appellate Division (179 App. Div. 942), states the conditions which called forth the law as follows: “It is vital to the public welfare that the cities of the State be supplied with pure and wholesome milk. It is of the utmost importance to the public welfare that the farmers should be induced to produce milk for use in the cities and that the persons purchasing and shipping milk for city use shall be responsible persons so that the seller shall receive pay for his milk. It is a fact too well known to need discussion that the farming community has suffered great damage by irresponsible persons buying on. credit their milk for shipment to the large cities without paying therefor. Such transactions naturally tend to convince the farmer that it is better for him to limit his production of milk or take it to the home factory to be manufactured there, dealing with people whom he knows rather than to sell it for city use. It is apparently recognized as impracticable that the payments should be made to the farmer upon the delivery of each sale of milk. When a person seeks to buy milk from the farmers of the State to ship to the cities of the State for use and consumption, his transactions affect the public interest, and the welfare of the farming community means the welfare of the public, and the State may properly protect the farmer from irresponsible dealers who seek his milk for shipment to the cities. This law, as we have indicated, has more than one aspect. It naturally benefits the farmers, but it guarantees the city a supply of milk. The farmer is not naturally a financier, and when he produces the milk he should be reasonably assured that he is to have its value, and the State may prevent irresponsible people from taking away his milk without giving some reasonable surety that it will be paid for. In the absence of some such provision, the shipment of milk to the cities would fall off and be greatly limited.”

The producer of milk for the city market desires to find a ready purchaser near at hand to take his product from the source of supply to the point of consumption. He cannot peddle his product from door to door or hold it to await a rise in market prices or a cash purchaser. He must sell it to milk gatherers; deliver it fresh and often on credit. Such are the conditions of the market peculiar to the handling of milk. The law deals with a definite class, i. e., the milk gatherers. It is not wholly for the benefit of the farmer. If it gives him a club to aid in the collection of debts which is not given to other creditors ” (State of Maine v. Latham, 115 Me. 176), it gives it to him to keep open the stream of milk flowing from farm to city as well as to guard him from financial loss.

When the Legislature takes notice of the dependency of the city on the farm and of the hard and often unremunerative character of farm life, we think it may protect the farmer from fraud arising from the peculiar conditions under which milk is produced and sold.

That the evil is not imaginary or local is evidenced by the like legislation of other States as follows: Connecticut: L. 1919, ch. 194; Maine: L. 1915, ch. 32; Minnesota: L. 1927, ch. 427; New Hampshire: Public Laws, ch. 164, as amd. by L. 1929, ch. 35; New Jersey: L. 1917, ch. 74; Rhode Island: General Laws (1923), ch. 204; Vermont: General Laws (1917), ch. 239, § 5727, as amd. by L. 1923, No. 103; L. 1929, Nos. 105,106; Wisconsin: L. 1925, ch. 389, § 1 (Statutes Wis. (1925), § 99.32).

The Connecticut statute was declared unconstitutional as class legislation in State v. Porter (94 Conn. 639). The Wisconsin act and the Maine act vary in detail from the New York statute but they have also been held unconstitutional for like reasons in State ex rel. Hickey v. Levitan (190 Wis. 646) and State of Maine v. Latham (supra). The reasoning in these cases rests on the abstract doctrine of liberty of contract rather than the practical necessities of the case. The Supreme Court of the United States in Payne v. Kansas (248 U. S. 112, followed in Arnold v. Hanna, 276 U. S. 591, affg. 315 Mo. 823) had before it a State law forbidding the sale of farm produce on commission without an annual license obtained on a proper showing of character, responsibility, etc., and a bond conditioned to make honest accounting. The court said with directness and brevity: “ Plaintiffs in error maintain that the statute is class legislation which abridges their rights and privileges, that it deprives them of the equal protection of the laws and also of their property without due process of law — all in violation of the Fourteenth Amendment.

Manifestly, the purpose of the State was to prevent certain evils incident to the business of commission merchants in farm products by regulating it. Many former opinions have pointed out the limitations upon powers of the States concerning matters of this kind, and we think the present record fails to show that these limitations have been transcended. Rast v. Van Deman & Lewis Co., 240 U. S. 342; Brazee v. Michigan, 241 U. S. 340; Adams v. Tanner, 244 U. S. 590.”

A legalistic distinction exists between the merchant who handles farm produce on commission and the milk gatherer who buys milk on credit from the farmer. One acts as agent for a principal. The other is a mere debtor. The legal difference in the evil results of the dishonesty or irresponsibility of the agent and of the debtor may be readily discernible to a lawyer. He would say that a fiduciary may expect to secure his cestui que trust. With the farmer, the obvious result of dishonesty or irresponsibility in both cases would be the loss of the return on his farm products by a bad system of marketing. When the product in question is milk, the choice of evils between the commission merchant and the milk gatherer is reduced to the vanishing point. As the law is thus read, the requirement of a bond to secure the payment to producers is a concession rather than a burden. It applies only to those of doubtful integrity and financial responsibility. Others may obtain exemption. Doubtless a license may be required. Many trades and callings are open only to those who are licensed to pursue them. If the calling is so innocent that it must be left open to all alike the State may not require a license. If, on the other hand, the dishonest and unworthy should not be permitted to take advantage of the opportunities presented by a given trade or calling, they may be “ told to stand aside.” (Roman v. Lobe, supra, p. 54; Bendell v. De Dominicis, 251 N. Y. 305, 310.)

When the Legislature has power to act, it may act without interference from the courts. The Legislature has, we find, acted on reasonable grounds and in a reasonable manner.

The provision of the statute for the payment of the balance of the bond into the State treasury is not in question here. (See Tyson v. Banton, 273 U. S. 418, 426.)

The judgments should be reversed in each case and the motions to dismiss the complaints denied, with costs in all courts.

Cardozo, Ch. J., Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg, J., not sitting.

Judgments reversed, etc.


text:
    Municipal Metallic Bed Manufacturing Corporation, Appellant, v. David Dobbs et al., Defendants, and Sarah Littman, Respondent.

      <Argued March 17, 1930;
    decided April 8, 1930.)

      Oswald N. Jacoby and Benjamin Brenner for appellant.
    The contract of lease is valid and actionable. (Lorillard v. Clyde, 86 N. Y. 384; Curtis v. Gokey, 68 N. Y. 300; Cohen v. Berlin & Jones Co., 9 App. Div. 425; Manson v. Curtis, 223 N. Y. 324; Shedlinsky v. Budweiser, 163 N. Y. 437; Security Mtge. Co. v. Thompson, 66 Misc. Rep. 151; Adler v. Miles, 69 Misc. Rep. 608; Kerley v. Mayer, 10 Misc. Rep. 718; 155 N. Y. 636; Ernst v. Crosby, 140 N. Y. 364; Chautauqua Assembly v. Alling, 46 Hun, 582; Weil v. Abrahams, 53 App. Div. 313; Steward v. Winters, 4 Sandf. Ch. 628; Gillian v. Norton, 33 How. Pr. 373.) The contract of indemnity is valid and enforcible where the indemnitee is not in pari delicto. (Appleton v. War

      basse, 92 Misc. Rep. 147; Coventry v. Barton, 17 Johns. 142; Stone v. Hooker, 9 Cow. 154; City of Brooklyn v. Brooklyn Ry. Co., 47 N. Y. 475; Allaire v. Ouland, 2 Johns. 54.)

      Edward Rager Akselrad for respondent.
    The covenant to indemnify the tenant against the consequences of an ordinance or statute or any restriction imposed against the leased premises, is against public policy, illegal and unenforcible. (Berger v. Koelsch, 77 Hun, 44; Rockwell v. Eiler’s Music House, 67 Wash. 478; Raner v. Goldberg, 215 App.Div. 355; 244 N. Y. 438; Shedlinsky v. Budweiser, 163 N. Y. 437.) The covenant of indemnity should be strictly construed and should not be extended by construction or implication. (Gamble v. Cuneo, 21 App. Div. 413; 162 N. Y. 634.) Misrepresentation or concealment of a matter of law cannot constitute remediable fraud because every one is presumed to know the law. (Williston on Contracts, vol. 3, p. 1495; Hart v. City Theatres, 215 N. Y. 322; Markowitz v. Arrow Const. Co., Inc., 102 Misc. Rep. 532.)
   Pound, J.

The question is as to the sufficiency of the complaint herein. It alleges the lease of certain premises in the borough of Brooklyn by the defendants “ for the manufacture of metal beds and retail selling of furniture and bedding;” that the lease contained a provision: “ That said landlords warrant that the manufacture of metal beds under leased premises is not in violation of any Federal, City or State ordinance or statute or any restriction imposed against such leased premises and that said landlords will indemnify said tenant for any loss sustained by said tenant as a result of the existence of such restriction, ordinance or statute;” that the use of the leased premises for the manufacture of metal beds or metal bed frames was in violation of the Zoning Laws of the city of New York, of the Building Code of the Bureau of Buildings and the charter of the city of New York; that plaintiff has not been permitted to use the premises for the purpose for which they were leased; that the covenant and warranty were falsely made with knowledge of such falsity; that plaintiff has been damaged thereby; therefore, it demands judgment.

The complaint has been dismissed for legal insufficiency on the ground that the purpose for which the lease was made is illegal and no recovery under the circumstances may be predicated thereon and that the alleged misrepresentation cannot be said to be a fraud, because it is but an expression of opinion as to the law.

The action is not brought to recover back rent paid on a lease made for an illegal purpose, nor to recover indemnity for a violation of the law. A plaintiff cannot recover if he is compelled to predicate his cause of action on an illegal contract, and one may not indemnify another against the consequences of his illegal acts (Hart v. City Theatres Co., 215 N. Y. 322), but the covenant or guaranty of indemnity sued on is not an illegal contract and it may be enforced without any violation of law by the tenant. The fact that the lease may not be lawfully performed does not make the guaranty illegal. It stands on its own footing.

The plaintiff alleges that it cannot use the leased premises for the purpose for which they were leased without violating the law and that it will be obliged to vacate such premises or use them for some other purpose. The complaint rests on warranty rather than on false representation or deceit. Liability depends upon the exact truth as to the condition of the premises as guaranteed by the landlord.

The lease contains an absolute and unequivocal guaranty that the manufacture of metal beds in the leased premises is not in violation of law and a promise that the landlords will indemnify the tenant against any loss sustained by it as the result of the existence of any such restriction on the use of the premises. It is urged that the tenant is presumed to know the law applicable to the facts and that, therefore, it cannot rely on the guaranty as to the law applicable to the use of the building. No presumption exists that all men know the law. The maxim “ a man is presumed to know the law,” is a trite, sententious saying, “by no means universally true.” Ignorance of the law does not excuse persons so as to exempt them from the consequences of their acts, such as punishment for criminal offenses. Government could not be carried on if men were permitted to excuse their misconduct by pleading ignorance of the law. Speaking broadly, we may say that all persons are treated as if they knew the law in passing on the character of their acts. In that qualified sense is knowledge of the law imputed to every one. (Broom’s Legal Maxims [9th ed.], p. 178.)

If ignorance of the law did not in fact exist, we would not have lawyers to advise and courts to decide what the law is. Every one would know the law and it would be applied uniformly when the facts were known to the parties; yet the law of a particular case is often known only as the courts decide it.

The right to occupy a given building in a city for factory purposes is not so clear that lawyers and courts always agree thereon. Legal advice is sought. Lawyers differ as to what the law is and the courts apply the rule of law to the facts. • Title companies guarantee the validity of titles. In so doing they may guarantee the application of real estate law to difficult and baffling problems to be finally settled only by the courts of last resort. Opinion is one thing. Contract is another. When one knows the facts, a mere statement of the law applicable thereto is taken as an opinion. There is no implied guaranty that an opinion is sound but no reason exists why an express guaranty as to the law applicable to the facts may not be made.

Here we have something more than a representation of law which is to be taken as the expression of an opinion only. The landlords assume to guarantee that their building may lawfully be used for the purposes for which it was leased. If any presumption exists, it is that the landlord knows whether his building complies with the zoning laws and factory regulations. The tenant is not left to his own judgment, but may rely on the contract of the landlord. The building may not be lawfully used for factory purposes and the lease may be illegal to that extent but it does not appear from the complaint and it cannot be inferred from the facts pleaded that it was the intent of the parties that the law should be violated. The contrary is the natural inference. The complaint looks to compliance with the law rather than noncompliance.

As we are passing only on the sufficiency of the complaint, the question of damages is not now before us. The proper rule of damages depends on the facts to be disclosed on a trial.

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

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


text:
    The People of the State of New York, Respondent, v. Frank Pennestri and Lucia Pennestri, Appellants.
    (Argued March 26, 1930;
    decided April 8, 1930.)

      Henry Hirschberg and Henry Grusky for appellants.
    The Appellate Division has power and jurisdiction to grant the enlargement of time for argument of the appeal and to file and perfect the appeal record for good cause shown, even though the motion therefor be made more than ninety days after the filing of the notice of appeal or the granting of a certificate of reasonable doubt. (People v. Kautzman, 219 App. Div. 461; Munroe v. State, 223 N. Y. 208; People v. Simmons, 130 Misc. Rep. 821; People v. Staples, 91 Cal. 23; Campbell v. State, 182 Ala. 18.)

      Elmer H. Lemon, District Attorney, for respondent.
    The orders dismissing the appeal and denying motions for enlargement of time were proper. (Code Crim. Pro. § 539; People v. Nelson, 188 N. Y. 234; People v. Hill, 197 N. Y. 532; People v. Kautzman, 219 App. Div. 461; 248 N. Y. 506; People v. Dryer, 227 App. Div. 629; People v. De Laney, 244 N. Y. 529; People v. Geffin, 245 N. Y. 75; People v. Campanelli, 214 N. Y. 37; People v. Chapman, 225 N. Y. 700; People ex rel. Hummel v. Reardon, 186 N. Y. 164; State v. Graham, 184 S. W. Rep. 1190; State v. Leonard, 250 Mo. 406; Wiley v. Solvay Process Co., 215 N. Y. 584.)
   Per Curiam.

Section 535 of the Code of Criminal Procedure, as amended by chapter 464, Laws of 1926, provides that an appeal to the Appellate Division must be brought on for argument within ninety days after the service of the notice of appeal or the granting of a certificate of reasonable doubt, unless the court for good cause shown, shall enlarge the time for that purpose. A similar provision is applicable in capital cases (Code Crim. Pro. § 539).

In the case of People v. Cowan (245 N. Y. 532) this court said: The court may, in a proper case and in the exercise of discretion, enlarge the time to bring the case on for argument after it has expired in order to prevent a dismissal.”

The same rule should apply under section 535. The order should be reversed and the case remitted to the Appellate Division to decide the motion for enlargement of time and to dismiss the appeal on the merits.

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

Ordered accordingly.


author: O’Brien, J.

text:
    Monogram Development Co., Inc., Appellant, v. Natben Construction Co., Inc., Respondent.

      (Argued April 8, 1930;
    decided May 6, 1930.)

      Harry G. Anderson and Louis J. Moss for appellant.
    The agreements in question, though affecting the land in the bed of the street only, deprive the abutting property owner of essential easements of light, air and access and constitute an incumbrance upon the property which renders the title unmarketable. (Van Vliet v. Gaines, 249 N. Y. 106; Moore v. Williams, 115 N. Y. 586; City v. Ferry Co., 231 N. Y. 18; Story v. N. Y. Elevated R. R. Co., 90 N. Y. 122; Shepard v. Man. Ry. Co., 169 N. Y. 160; Newman v. Nellis, 97 N. Y. 285; Whites Bank v. Nichols, 64 N. Y. 65; Halloway v. Southmayd, 139 N. Y. 390; Matter of Edgewater Road, 138 App. Div. 203; 199 N. Y. 560; Matter of Sedgwick Ave., 213 N. Y. 438; Lord v. Atkins, 138 N. Y. 184.)

      Harold M. Kennedy and Meier Steinhrink for respondent.
    The agreements on record do not affect the premises contracted to be sold. (Ansorge v. Belfer, 248 N. Y. 145; Fossume v. Requa, 218 N. Y. 339.) The easements and agreement do not constitute incumbrances which warranted rejection of the title. (Fossume v. Requa, 218 N. Y. 339.)
   O’Brien, J.

The complaint demands judgment for a sum of money constituting a down payment under a contract of sale and to impress a lien for that amount as well as for expenses.

By written agreement plaintiff contracted to purchase real property in Brooklyn and defendant to convey it by deed containing full covenants and warranty. The sale was stipulated to cover whatever right, title and interest defendant might possess in the bed of streets in front of the premises, but there is no allegation and no proof of representation that defendant has any title therein. The premises are described by metes and bounds as beginning at the corner of two streets and running along their sides. Accordingly, these highways are excluded from the description of the property agreed to be conveyed. (Van Winkle v. Van Winkle, 184 N. Y. 193, 203; Ansorge v. Belfer, 248 N. Y. 145, 149.) On the closing day plaintiff made tender as provided by the contract but defendant ivas unable to convey free from certain rights which many years previously had been granted to third parties by one of its predecessors and which, as plaintiff argues, constitute burdens and incumbrances on the title of the realty agreed to be conveyed. These alleged incumbrances consist of the right to erect poles for lighting, to build sewers, lay water-mains and to construct elevated railroads in the streets in front of these premises.

The existence of sewers and water-mains in a highway, even where the fee is in the abutting owner, does not constitute an incumbrance. (Fossume v. Requa, 218 N. Y. 339, 342.) In a highway wherein no title has been conveyed to the abutting owner, neither are telephone poles nor lighting poles an incumbrance. (Ansorge v. Belfer, supra.) The conveyance of the right to construct an elevated railroad, even when the fee of the highway is vested in the public rather than in the abutting owner, leads to a different result. (Story v. N. Y. El. R. R. Co., 90 N. Y. 122; Kane v. N. Y. El. R. R. Co., 125 N. Y. 164, 180; Donahue v. Keystone Gas Co., 181 N. Y. 313.) Defendant has easements in the highway of light, air and access and such interest is subject to the burden existing by reason of the grant of the right to construct an elevated railway. Such right, if exercised, would interfere with and reduce the value of these easements appurtenant to the abutting premises and would impair the title. It does not cease to be a burden merely because some provision may have been made by defendant’s predecessor for partial compensation for damages which may, in the future, be inflicted. The deprivation, even in part, of easements constitutes an incumbrance. (Huyck v. Andrews, 113 N. Y. 81.) The possibility that the right to construct an elevated railroad in front of these premises may never be exercised cannot render the existence of the incumbrance such a remote contingency as to compel us to disregard it. (Isaacs v. Schmuck, 245 N. Y. 77; Van Vliet & Place, Inc., v. Gaines, 249 N. Y. 106.) Plaintiff is not compelled to take title to property the marketability of which is reasonably doubtful. (Moore v. Williams, 115 N. Y. 586.)

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

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

Judgment accordingly.


author: Cardozo, Ch. J.

text:
    Zurich General Accident and Liability Insurance Company, Ltd., Appellant, v. Childs Company, Respondent.

      (Argued March 18, 1930;
    decided May 6, 1930.)

      Herbert B. Lee and Harold S. Lyon for appellant.
    The trial court was right in submitting the question of assumption of risk to the jury and the Appellate Division erred in holding this to be a question of law and in dismissing the complaint. (Larkin v. N. Y. Tel. Co., 220 N. Y. 27; Brainerd v. N. Y., O. & W. Ry., 132 App. Div. 498; Shoninger Co. v. Mann, 219 Ill. 242; Smith v. Baker, App. Cas. [1891] 325; Maloney v. Cunard S. S. Co., 217 N. Y. 278; Dougherty v. Pratt Institute, 244 N. Y. 111; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Yaconi v. Brady & Gioe, Inc., 246 N. Y. 300; Texas & Pacific Ry. Co. v. Howell, 224 U. S. 577; Larson v. Nassau Elec. R. R. Co., 223 N. Y. 14; Davidson v. Cornell, 132 N. Y. 228; Welle v. Celluloid Co., 175 N. Y. 401; Murphy v. Steeplechase Am. Co., 250 N. Y. 479.) The question of contributory negligence was properly submitted to the jury and correctly determined by it. (Reinzi v. Tilyou, 252 N. Y. 97; Lawless v. Conn. Riv. R. R., 136 Mass. 3; Nicholson v. Greely Square Hotel Co., 227 N. Y. 345; Kettle v. Turl, 162 N. Y. 255; Sherman & Redfield on Negligence [5th ed.], § 92; Palmer v. Deering, 93 N. Y. 7; Conway v. Naylor, 222 N. Y. 437.)

      Walter L. Glenney and Chester H. Lane for respondent.
    The risks of the situation were known to plaintiff’s sub-i ogee and assumed by him, and his assumption of the risks constitutes a complete defense to this action. (Lindsley v. Stern, 203 App. Div. 615; Dougherty v. Pratt Institute, 244 N. Y. 111; Yaconi v. Brady & Gioe, Inc., 246 N. Y. 300; De Gaetano v. Merritt & Chapman D. & W. Co., 219 App. Div. 242; Paquet v. Pictorial Review Holding Corp., 130 Misc. Rep. 389; Collelli v. Turner, 215 N. Y. 675; Kline v. Abraham, 178 N. Y. 377; Weldon v. N. Y., N. H. & H. R. R. Co., 159 App. Div. 649; Broadbent v. New York Evening Journal Pub. Co., 147 App. Div. 133; Faha v. Wynkoop, Hallenbeck & Crawford Co., 72 Misc. Rep. 391.) Reversible error was committed in submitting to the jury as an element of damage the medical and hospital expenses, and in admitting in evidence the proof thereof. (Travelers Ins. Co. v. Brass Goods Mfg. Co., 239 N. Y. 273.)
   Cardozo, Ch. J.

Bellville, an employee of a fish dealer, was injured while delivering fish at a restaurant in Albany. A claim against the employer and the insurance carrier under the Workmen’s Compensation Law (Cons. Laws, ch. 67) resulted in an award, which was paid. The effect of the award was to subrogate the carrier to the cause of action, if any, in favor' of the employee against the owner of the restaurant (Workmen’s Compensation Law, § 29). The carrier, the Zurich Accident and Liability Insurance Company, brings this action against the owner in the right of the injured workman, as assignee under the statute.

The facts, as a jury could have found them, are these: Deliveries of fish and other merchandise were made at the restaurant by means of a sidewalk elevator, which was sent up from the cellar when summoned by a bell. At times, however, as a consequence of a defect in the mechanism, the elevator would stop at a point about three feet below the level of the walk and stand fast until released. Bellville had instructions from the man in charge in the cellar as to what he was to do at such times. He was to jump upon the platform, pull a chain attached to the operating cables, and shake the elevator from side to side in order to set it free. This he did several times, and brought his provisions down in safety. On the day of the accident, he rang ior the elevator, which stuck at the accustomed place. Obedient to instructions he jumped upon the platform, wet from a light rain, and as he landed there, he slipped and fell. The force of the impact caused the elevator to start upward with a bound. In moving, it severed one of his feet protruding into the cellar. Upon proof of these facts, there was a verdict for the plaintiff. The Appellate Division, reversing, dismissed the complaint on the ground that as a matter of law there had been an assumption of the risk.

Bellville was not an employee of the defendant, the owner of the restaurant. There was, therefore, no “ assumption of the- risk ” on his part as an incident to a contractual relation, such as that of master and servant, in which event the assumption may have the force of an implied term of the employment (Maloney v. Cunard S. S. Co., 217 N. Y. 278, 282, 283; cf. Bohlen, Studies in the Law of Torts, pp. 444, 445, 459, 463). Whether the phrase can be applied with technical precision, in view of “the associations it has gathered, to relations not contractual, there is no occasion to determine. If it be so extended for convenience, it stands for nothing more in its application thus enlarged than is expressed in the maxim, volenti non fit injuria (McFarlane v. City of Niagara Falls, 247 N. Y. 340, 349). The principle compact within the maxim “ does not result from an implied term in a contract creating the relation; it applies equally to any relation voluntarily assumed — contractual or not (Bohlen, Studies in the Law of Torts, p. 441). One will not be heard to complain of results one has invited (Smith v. Baker & Sons, L. R [1891] A. C. 325, 360). The question, therefore, is whether Bellville, leaping on the elevator, was so informed of the dangers inhering in the leap as to be placed in the position of one willing to encounter them.

We think the maxim does not condemn him to bear his loss without requital. The dangerous quality of the act is visible enough now when we view it after the event. It was not so obvious in the doing as to betoken, at least as matter of law, a foresight of the consequences and a readiness to accept them (Smith v. Baker & Sons, L. R. [1891] A. C. supra, pp. 337, 355; Larson v. Nassau El. R. R. Co., 223 N. Y. 14, 21; Fitzgerald v. Conn. River Paper Co., 155 Mass. 155; Warren, Volenti non fit injuria, 8 Harv. L. Rev. 457, 462, 464; Bohlen, Studies in the Law of Torts, supra). Bellville had been assured, and assured by the defendant’s representative, that the way to start thé elevator was to do exactly what he did. He had followed those instructions in the past and followed them in safety. He knew that the leap without more did not set the elevator in motion, but that there was need in addition to shake it violently from side, to side and even at times to pull the operating chains. Did he foresee that there was danger of his slipping when he jumped to a platform less than three feet below the walk? Did he foresee that if he slipped, the jar of the fall would set the elevator going? Were the consequences so obvious that as a reasonable man he must have had them in his mind, and have been ready with such knowledge to take the risk that he would suffer them? We think the answer was for the jury.

The same considerations that tend to negative an acceptance of a danger clearly understood supply the answer to the argument that as a matter of law there was contributory negligence. There had been an assurance of safety, and experience tending to confirm it (cf. Reinzi v. Tilyou, 252 N. Y. 97, 101). Permissible, too, is the conclusion that there was negligence on the part of the defendant in suffering the elevator to remain in a condition so defective. Here as so often, “ 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; Robert v. U. S. S. B. E. F. Corp., 240 N. Y. 474, 477). So unstable was the elevator that the jar of the leap and the fall released it from its moorings. A jury could fairly say that facilities less precarious should have been supplied by the defendant to those invited to its building.

The verdict, however, is too large, for in it there are items of damage not recoverable by the plaintiff as assignee under the statute. The point was saved upon the trial by appropriate exceptions. The difficulty is this. Under the Workmen’s Compensation Law, the medical and hospital treatment of injured employees must be furnished by the employer. This was done by the insurance carrier, acting as the employer’s representative, upon report of Bellville’s injuries. The bills were substantial, $4,726.50. If Bellville were suing as plaintiff, he could not recover these expenses, for the reason that he had neither incurred nor paid them (cf. Matter of Sandberg v. Seymour Dress Co., 242 N. Y. 497; Matter of Finkelstein, 252 N. Y. 519); they were paid and incurred by another, acting in the discharge of a statutory duty. He would be in the same position in demanding them as an infant seeking compensation for payments by a father. The insurance carrier suing under section 29 as assignee or subrogee of the injured employee, may recover those damages and those only that could be recovéred by the assignor if he were suing for himself (Travelers Ins. Co. v. Brass Goods Mfg. Co., 239 N. Y. 273). These may be greater at times than any payment that the carrier has had to make, for in them there will be reparation for the pain and the suffering that have been borne by another. At times again they may be less. Whether greater or less, the statute takes no account of profit or of loss, but subrogates generally, for better or for worse (Travelers Ins. Co. v. Brass Goods Mfg. Co., supra).

This action having been begun in 1925, there is no occasion to inquire to what extent an amendment of the statute in 1927 (Laws 1927, ch. 553, amending Workmen’s Compensation Law, § 13) prescribes a different rule.

The judgment of the Appellate Division should be reversed, and that of the Trial Term modified by deducting therefrom the sum of $4,726.50, and as modified affirmed, without costs in . the Appellate Division or in this court.

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

Judgment accordingly.