text:
    George W. Rockline et al., Copartners under the Name of W. T. Horn Co., Respondents, v. Oscar L. Richard et al.,. Copartners under the Firm Name of C. B. Richard & Co., et al., Defendants, and Thomas P. McKenna, Appellant.
    (Argued June 11, 1929;
    decided July 11, 1929.)

      Gustave B. Garfield and Maurice V. Seligson for appellant.
    There is no legal proof in the record that the steamer Albistan ever sailed for or arrived at Havana. The only item as to damage concerning which the jury was permitted to speculate, was the length of time that the Albistan was delayed at Havana awaiting a cargo. This proof rests solely upon the cables from the master of the vessel to the plaintiffs, received in evidence over the objection and exception of the defendants that the said cables were hearsay. The reception of these cables in evidence was reversible error. (Ins. Co. of North America v. Guardiola, 129 U. S. 642; McClure v. Middletown Trust Co., 95 Conn. 159; Inman v. Dudley, 146 Fed. Rep. 455; Consolidated Grocery v. Hammond, 175 Fed. Rep. 646; Zinsmeister v. Rhode Island Canning Co., 145 Ky. 29; Varley v. Ostheimer, 159 Fed. Rep. 655.)

      Albert Lavenburg and Arthur Lavenburg for respondents.
    The admission in evidence of the cables was clearly proper. (Dodge v. Weill, 158 N. Y. 346; Justice v. Lang, 52 N. Y. 323; Insurance Co. v. Weide, 78 U. S. 438; Slater v. Jewett, 85 N. Y. 62; Hunter v. N. Y. R. R. Co., 116 N. Y. 615; Campbell v. Willis, 290 Fed. Rep. 271; Oregon S. S. Co. v. Otis, 100 N. Y. 446; Robertson v. National S. S. Co., 139 N. Y. 416; First Nat. Bank v. Blackman, 223 App. Div. 155; Matter of Fricke’s Will, 202 N. Y. Supp. 908; Gibbons v. Perkins, 230 N. Y. Supp. 237; Utica National Bank v. Nickel, 128 Misc. Rep. 614; Swain v. Schieffelin, 134 N. Y. 471; People v. Campanaro, 223 App. Div. 248; U. S. T. Co. v. O’Brien, 143 N. Y. 284; Trimboli v. Kinkel, 226 N. Y. 147.)
   Hubbs, J.

The plaintiff has recovered a judgment against the defendant McKenna for damages growing out of the delaying of plaintiff’s boat Albistan at Havana, Cuba, because of the failure to furnish it with a cargo of sugar in accordance with an agreement previously entered into. Several questions are raised upon this appeal which are alleged by the appellant to constitute error requiring a reversal of the judgment. Our examination of' those questions has led to the conclusion that a fair question of fact was presented which justified the jury in finding in favor of the plaintiff, and we would be content to affirm the judgment without opinion if competent evidence had been presented as to the damage caused by the delaying of the boat at Havana. No witness was called who testified when the boat reached Havana or when it left. The only evidence offered by the plaintiff upon that question consisted of certain cablegrams received by plaintiff from the captain of the boat. No prehminary evidence was offered as to the sending of the cablegrams and nothing appears in the record sustaining the damages awarded by the jury except the copies of the cablegrams which were introduced by the plaintiff over the objection and exception of the defendant.

Those cablegrams consisted of reports rendered by the master of the ship Albistan to Horn & Company, his principal. They purport to give the date of the arrival of the ship at Havana, and to indicate that the ship remained at Havana without instructions until September 7th, at which time the last cablegram is supposed to have been sent. The cablegram bearing date that day indicates that the ship was then being loaded.

If it could be held that the cablegrams were properly admitted in evidence and that from them the jury could properly have found that they established the presence of the ship at Havana during the period from August 19th to September 7th, there is nothing in the cablegrams to indicate that the ship did not commence loading on. August 30th, or at some time subsequent to that date and prior to September 7th. To that extent, at least, the proof would fail to establish the damage found against the defendant, because the verdict is based upon a delay from August 19th to September 7th, exclusive of Sundays.

Plaintiff contends that the cablegrams are competent in view of the fact that plaintiff’s proof shows that information as to the receipt of the cablegrams was conveyed to the defendant McKenna, that there is no evidence contradicting the presumption that the cablegrams were sent, and that there is no evidence that the master of the Albistan was elsewhere with his vessel during that time or that he was at that time sending untruthful cablegrams. It further contends that the court was entitled to take judicial notice of the fact that reports of masters of vessels are sent to their principals by cablegram. The plaintiff relies upon Oregon S. S. Co. v. Otis (100 N. Y. 446) and Campbell v. Willis (290 Fed. Rep. 271) as authority for the admission of the cablegrams. In Oregon S. S. Co. v. Otis the telegrams admitted in evidence were sent by the defendant to the plaintiff, and constituted admissions by defendant. The court points out with great particularity the corroborating evidence as to the sending of the telegrams contained in letters written by the defendant and put in evidence by plaintiff. That there must be either proof of the sending of a letter or other message, or evidence as to the destruction of the original, was recognized by the court in that case, when it said: “ While the transcript delivered to the person addressed is for some purposes, as between him and the sender, deemed the original, it never can be so without competent proof that the alleged sender did actually send, or authorize to be sent, the dispatches in question. The primary and original evidence of that fact would be the telegram itself in the handwriting of the sender, or of an agent shown to have been duly authorized. But when it appears that the telegram has been destroyed by the company, secondary evidence of the essential fact may be given.” Campbell v. Willis (supra) is not in point, as there the telegrams and letters passed between the parties, and the court held that having been forwarded in the usual course of business, the law presumes that they were received by defendant; that where a letter is received in response to a letter sent by the receiver the law will presume that the letter is from the person whose name is signed to it, and that if defendant had failed to receive the letters and telegrams he would have taken the stand and said so.

In the case at bar the cablegrams are self-serving declarations as to which no proof was offered to the effect that théy were actually sent or authorized to be sent by the person whose name appears as the sender or that the originals had been destroyed by the company which transmitted them.

In Insurance Co. v. Guardiola (129 U. S. 642) letters relative to a shipment by water, written by the agents of parties to the action to their principals, were held to be no part of the transaction of shipping sugar, but mere reports, and incompetent as against the opposite party, either in themselves or in corroboration of the testimony of the agents. The question here involved was directly at issue and was decided adversely to the contention of respondent. In Parsons v. Ramsey (54 Hun, 633) (See opinion of General Term, third department, reported in 7 N. Y. Supp. 93), a letter written to plaintiff’s attorney by a third person was offered by plaintiffs and received over the objection and exception of the defendant. Ingalls, J., in an opinion in which all members of the court concurred, said: “ The statements contained in the letter are clearly material as bearing upon the principal question involved in the controversy. * * * We do not discover that the defendant admitted the truth of the material statements contained in the letter, or that any sufficient foundation was laid for the admission of the letter as evidence. This error seems to us so clearly fatal to the recovery that it becomes unnecessary to consider any other question raised upon this appeal.”

In Inman Bros. v. Dudley & Daniels Lumber Co. (146 Fed. Rep. 449) the court said: That a letter written by an agent to his principal concerning the business of the latter is not evidence against a third person is elementary.” And as- to a letter written by a third person to defendants and put in evidence over defendants’ objection by plaintiff, the court, in Consolidated Grocery Co. v. Hammond (175 Fed. Rep. 641) said: “A letter is not a self-proving instrument, and proof of some kind tending to show its genuineness is always required. The mere contents of a written communication, purporting to be a particular person’s, are, of themselves, not sufficient evidence of genuineness. (3 Wigmore on Evidence, § 2148.) * * * The letter, having been written by a third person, without the knowledge of the defendants, and without their subsequent sanction or approval, seems to us to be hearsay testimony, so far as the defendants are concerned, and, for that reason, inadmissible against, them.” In Wigmore on Evidence (2d ed.), section 2154, it is said: That a telegram not following a previous one calling for a reply should sufficiently authenticate itself by its contents, any more than any other communication, seems never to have been contended.”

Since proof of the sending of the cablegrams in question was entirely lacking and no evidence was offered excusing failure to furnish proof, the cablegrams were improperly received in evidence. Being material and necessary to support the verdict found, they were prejudicial to the defendant.. The judgment of the Appellate Division and that of the Trial.Term should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Cardozo, Ch. J.

license: Public Domain

text:
    Antonio Listorti, as Administrator of the Estate of Joseph Listorti, Deceased, Appellant, v. New York Central Railroad Company, Respondent.
    (Argued June 11, 1929;
    decided July 11, 1929.)

      Herbert T. Reed and J. Leo Hilbert for appellant.
    The deceased met his death while he was employed by the defendant in interstate commerce. (.Lindstrom v. N. Y.

      C. R. R. Co., 186 App. Div. 429; 239 N. Y. 551; San Pedro L. A. & S. L. Ry. Co. v. Davide, 210 Fed. Rep. 870; Lamphere v. Oregon R. Nav. Co., 196 Fed. Rep. 336; Erie R. R. Co. v. Winfield, 244 U. S. 170; Boldt v. New York Central R. R. Co., 18 N. Y. 432; Knowles v. N. Y., N. H. & H. R. R. Co., 233 N. Y. 513; Stewart & Sons v. Longhurst, [1917] A. C. 249; Pallacco v. Lehigh Valley R. Co., 198 App. Div. 683; Cremins v. Guest, Keen & Nettlefolds, [1908] 1 K. B. 469; Corvi v. Stiles & Reynolds Brick Co., 130 Atl. Rep. 674.)

      Noel S. Symons for respondent.
    The accident to deceased did not arise out of or in the course of his employment. (Symonski v. C. R. Co. of N. J., 131 Atl. Rep. 628; Tallon v. Interborough Rapid Transit Co., 232 N. Y. 410; Krysiak v. Penn. R. Co., 270 Fed. Rep. 758; Matter of Mclnerney v. B. & S. R. R. Co., 225 N. Y. 130; Aldredge v. Baltimore & Ohio Ry. Co., 20 Fed. Rep. [2d] 655; Ames v. N. Y. C. R. R. Co., 178 App. Div. 324; McIntyre v. Long Island R. R. Co., 150 App. Div. 783; Kowalek v. N. Y. Cons. R. R. Co., 229 N. Y. 489; Matter of Clark v. Voorhees, 231 N. Y. 14.)
   Cardozo, Ch. J.

The action is under the Federal Employers’ Liability Act, to recover damages for injuries resulting in death.

Joseph Listorti was employed by the defendant, an interstate carrier, in the repair of its roadbed at Knowles-ville, New York. His home was at Holley, about fifteen miles away. In order to reach his work on time, he was given a pass on the defendant’s fine, and was instructed by the foreman to catch a stated train. He was not forbidden in so many words to make use of the trolley between the same points, but, apart from the delay, the extra cost was prohibitive to one working for his slender wage.

On March 4, 1925, Listorti left his home at Holley to go to the defendant’s station for the labor of the day. He could have gone there by the public road. Instead, he took a short cut by the defendant’s right of way. He climbed the embankment and walked along the tracks. While thus engaged, he was killed in the darkness of the early morning by a freight train which ran against the current of the traffic and struck him from behind. His body, flung or pushed by the impact of the engine, was picked up about thirty feet from the waiting room. It was then opposite a point where he could have boarded a passenger train if one had been at hand. The train that he was to take was not due for several minutes. In brief, at the moment of the impact, he was near the station, but not at it. The admissions of the complaint and the testimony of the witnesses are at one in informing us that he was still walking on the tracks.

We assume in plaintiff’s favor that Listorti might be found to have entered upon his employment for the day, which was one in interstate commerce, if he had reached the defendant’s station and was there waiting for a train. He traveled in the defendant’s cars as a servant, not a passénger. The pass was given him as a facility for the performance of his work (Vick v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 267, 271; Donovan’s Case, 217 Mass. 76; Kilduff v. Boston El. Ry. Co., 195 Mass. 307; 4 Labatt, Master & Servant, p. 4670 et seq., and cases there cited). It was not a mere gratuity or courtesy to be used at any time or place, whether the travel was for work or pleasure (Dickinson v. W. E. Street Ry. Co., 177 Mass. 365, 368; Tallon v. I. R. T. Co., 232 N. Y. 410; Matter of Kowalek v. N. Y. Consol. R. R. Co., 229 N. Y. 489, 493). The holder was a laborer employed from day to day. For one in his position, the use of the pass was by fair implication a term of the employment, a privilege to continue while he continued at the job (Vick v. N. Y. C. & H. R. R. R. Co., supra; Matter of Kowalek v. N. Y. Consol. R. R. Co., supra; Gillshannon v. S. B. R. R. Co., 10 Cush. 228. Labatt, supra). There would have been injury in the .course of the employment if an accident had occurred in the course of travel on the train. The relation while on the train becomes by reasonable extension the one also at the station (Bountiful Brick Co. v. Giles, 276 U. S. 154).

The difficulty is that Listorti had not reached the station, but was still walking along the tracks, a trespasser on the right of way (Aldredge v. B. & O. R. R. Co., 20 Fed. Rep. [2d] 655; cert, denied, 275 U. S. 550; Krysiak v. Penn. R. R. Co., 270 Fed. Rep. 758; Symonski v. C. R. R. of N. J., 102 N. J. Law, 271). He was at a point where his presence had been neither invited nor permitted. No doubt it is true that he was approaching his destination and would be there very soon. Even so, there must always be a line of division at some point between preparation and entry, between arrival and approach. The emphasis is a false one that ignores the action of the moment, and measures the space only, the intervening yards and rods. Listorti, if near his goal, was still in a substantial sense away from it. He had not reached a place of rest. He was walking along the tracks, exposed like any walker at such a place to peril from behind. The peril overwhelmed him before the goal was reached.

The judgment should be affirmed with costs.

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

Judgment affirmed.


author: Crane, J.

text:
    In the Matter of Grade Crossings in the City of Buffalo. The City of Buffalo, Appellant; Public Service Commission, Respondent.
    (Argued June 13, 1929;
    decided July 11, 1929.)

      Gregory U. Harmon, Corporation Counsel (Andrew P. Ronan of counsel), for appellant.
    The Public Service Commission has the power to include the temporary-crossing at grade at Starin avenue among the list of crossings to be eliminated during the year 1929. (Const. of N. Y. art. 7, § 14; L. 1928, ch. 679.)

      Russell B. Burnside and Charles G. Blakeslee for respondent.
    Starin avenue is not a crossing at grade of the tracks of the Erie railroad within the meaning of that term, as used in section 14 of article 7 of the Constitution and in the Grade Crossing Elimination Act, applicable to the city of Buffalo. (L. 1928, ch. 679; People ex rel. Bridge Operating Co. v. Pub. Serv. Com., 153 App. Div. 129; People ex rel. Kings County Lighting Co. v. Straus, 178 App. Div. 840.)
   Crane, J.

The Council of the city of Buffalo by resolution adopted November 16, 1921, extended and laid out Starin avenue as a public street 100 feet wide, across the tracks and rights of way of the Erie Railroad Company and the New York, Lackawanna and Western Railway Company; and on April 14, 1923, applied by petition to the Public Service Commission for a determination as to whether such extended avenue should pass over or under the tracks of said railroad. After a public hearing, an order was made August 2, 1923, directing that Starin avenue should cross under the track of the railroad companies in subways not less than 80 feet wide between abutments, with a clear roadway 50 feet wide, and two sidewalks each 15 feet wide. The order, however, as to the Erie Railroad Company was apparently held in abeyance by the following provisions therein: That the Erie Railroad Company be and hereby is permitted to defer the raising of its tracks and the construction of the under-grade crossing and approaches herein above authorized and directed, and to construct a temporary crossing at the present grade of its tracks upon the following conditions:

“ That the temporary crossing shall be constructed in accordance with the following general requirements: the crossing shall be 30 feet wide and shall be planked or surfaced full width with equally suitable material; the roadway on the approaches shall be surfaced with gravel to a width of 30 feet; the grade on the north approach shall descend from the tracks at the rate of about 4.15 per cent and that on the south approach shall descend at the rate of about 4 per cent; substantial wooden guard railing shall be provided on both sides of the roadway where the height of embankment exceeds 3 feet; a plank sidewalk 4 feet wide shall be provided on each side of the street between the limits of the temporary roadway.” Other conditions as to warning signs and protection were provided.

In accordance with this order Starin avenue was extended across the tracks of the Erie Railroad Company at grade; it is now, and ever has been, a grade crossing. No order or official designation can make it anything else. Whatever name we give it, the fact is that the public in crossing the Erie’s tracks go over them on a grade with the tracks, neither above nor under them.

It was with such crossings in mind, causing and creating danger to the people of this State, that an amendment to the State Constitution was adopted at the general election held November 8, 1927, which amendment became article 7, section 14, of the Constitution. This permitted the Legislature to authorize by law the creation of a State debt not exceeding in the aggregate $300,000,000, to provide moneys for the elimination, under State supervision, of railroad crossings at grade within the State, at the expense of the State, railroad companies, counties and cities. Fifty per cent of the expense shall be borne by the railroad company, the remaining fifty per cent shall be borne by the State and the county in which the crossing is located, or by the State and the city in which it is located, if the city contain two or more counties. Other provisions of the section as to the limitation and disposition of moneys need not be mentioned. The Constitution was amended to permit this State help for the elimination of grade crossings, that is, to put a street crossing under or over a track, and not on a level with it.

Thereafter, and in accordance with this constitutional amendment, chapter 679 of the Laws of 1928 was passed, providing for the elimination of highway-railway crossings at grade in the city of Buffalo.

Section 2 says: “1. Notwithstanding any inconsistent provisions of article three of the railroad law or any other law, general or special, all existing highway-railroad crossings at grade to be eliminated from the proceeds of bonds issued pursuant to law and section fourteen of article seven of the constitution shall be eliminated in the manner prescribed by this act * * *. The terms

‘ railroad crossings at grade ’ and ‘ crossings,’ as employed in this act, may include an existing lengthwise occupation at grade of public streets as the public service commission may determine by order.”

:■ Starin avenue, as it has existed and now exists, comes within this definition. The act further provides that the Buffalo Commission therein described and any municipal corporation or railroad corporation may file with the Public Service Commission lists of crossings in the city of Buffalo, the elimination of which is suggested for consideration during the ensuing calendar year. The procedure is then set forth leading up to an order by the Public Service Commission, designating the grade crossings to be eliminated and the method and manner of doing the work. Authority is given to the Public Service Commission to supervise and to carry out the objects for which the constitutional amendment was adopted and this law enacted. By section 3 of the act, 40 per cent of the cost of the ehmination is borne by the State, 10 per cent by .the county of Erie, and 50 per cent by the railroad corporation. The point involved in this- case does not necessitate a more detailed reading of the act.

Thereafter the city of Buffalo, as well as the Grade Crossing and Terminal Station Commission of the city of Buffalo, filed with the Public Service Commission a list of grade crossings within the city of Buffalo, the elimination of which was suggested. Starin avenue was included in this list. After a hearing, the Public Service Commission refused to include Starin avenue among the crossings to be ehminated or even to consider it as a grade crossing. Its determination was that by this order of August 2, 1923, above referred to, Starin avenue had ceased to be a grade crossing, and, therefore, the Commission had no power under the Constitution or the act of 1928 to consider it a grade crossing or include it within the beneficent provisions of those enactments.

The Commission’s ruling was one of law; a determination that it lacked power; it did not eliminate Starin avenue as a matter of discretion or good judgment, or postpone its elimination to a subsequent year.

We cannot appreciate this position of the Public Service Commission. Whatever Starin avenue may be on paper or in previous orders of the Public Service Commission, or by whatever description it may be designated, Starin avenue now is and has been since 1923 a grade crossing. These grade crossings the people of this State have determined shall be ehminated as a fact, not as a theory, and for the purpose of accomphshing this result, the Constitution, followed by an act of the Legislature, has given to the Pubhc Service Commission full power in the matter. The order of August 2, 1923, in no way limits, embarrasses or restricts the Pubhc Service Commission in its action in putting Starin avenue above or beneath the tracks of the Erie Railroad Company. The Pubhc Service Commission has the same and ah the power under the act of 1928 which it has regarding any other grade crossing street or avenue in the city of Buffalo. The view which it has taken of its authority is entirely too narrow.

The order of the Appellate Division should be reversed in so far as it omits Starin avenue, as a matter of law, from the list of crossings to be eliminated, and the proceeding remitted to the Public Service Commission for further consideration and hearing upon the merits, with costs in the Appellate Division and in this court.

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

Ordered accordingly.


author: Hubbs, J.

text:
    Madeline Jensen, as Administratrix of the Estate of Jacob Jensen, Deceased, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    (Argued June 12, 1929;
    decided July 11, 1929.)

      Martin T. Nachtmann for appellant.
    The death of the insured within the two-year contestable period suspends the running of that time until the appointment of an executor or administrator, in a case where the policy is payable to his estate. (Killian v. Metropolitan Life Ins. Co., 251 N. Y. 44; Ramsey v. Old Colony Life Ins. Co., 297 Ill. 592; Northwestern Life Ins. Co. v. Pickering, 293 Fed. Rep. 496; Simon v. Etgen, 213 N. Y. 595; Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Chun Ngit Ngan v. Prudential Ins. Co., 9 Fed. Rep. [2d] 432; Crapo v. City of Syracuse, 183 N. Y. 395; Oswego & R. R. Co. v. State, 226 N. Y. 351; Cohen v. N. Y. Mutual Life Ins. Co., 50 N. Y. 610.)

      John J. Finn for respondent.
    The affirmative defenses of unsound health and prior medical attendance and treatment are interposed too late in view of the provisions of the “ incontestability ” clause of the policy in suit. (Killian v. Met. Life Ins. Co., 251 N. Y. 44.)
   Hubbs, J.

The defendant issued its industrial policy, dated April 28th, 1919, upon the life of Jacob Jensen. The insured died September 8th, 1920. The plaintiff was appointed administratrix on October 25th, 1927, and this action was commenced on November 7th, 1927. The policy was payable upon the death of the insured to his executor or administrator. It contains an incontestability provision as follows: “ Incontestability. Subject to the restrictions as to Military or Naval Service as contained herein, if any, this policy shall be incontestable after two years, from the date of its issue, except for nonpayment of premiums, fraud or misstatement of age.” The answer herein sets up affirmative defenses, alleging that the policy is void because of breach of conditions by the insured. It alleges that the insured was not in sound health at the time the policy was issued and that before its date he had been attended by physicians for a pulmonary disease or chronic bronchitis or disease of the heart. The plaintiff’s motion for judgment on the pleadings was granted upon the ground that the policy became incontestable at the expiration of two years from the date when it was issued.

The insured died sixteen months and ten days after the policy was issued. No administrator of his estate was appointed until October 25th, 1927, over seven years after his death. At the time of the insured’s death there remained seven months and twenty days of the period of two years within which the company could contest the validity of the policy. After the death of the insured there was no one in existence against whom the company could commence an action to cancel the policy and that situation continued until the appointment of the plaintiff as administratrix.

. Under a policy like the one in question, if the company desires to contest its validity the contest must be started within two years from the issuing of the policy even though the insured has died within that period. (Piasecki v. Metropolitan Life Ins. Co., 214 App. Div. 852; affd., 243 N. Y. 637; Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167.) In each of those cases there was someone in existence, after the death of the insured and before the period within which the company could contest the validity of the policy had expired, against whom the company could commence an action for that purpose.

This court recently decided, in the case of Killian v. Metropolitan Life Ins. Co. (251 N. Y. 44), that a contest, within the meaning of the provision in question, is a contest in a court and not a mere notice of rejection. In that case Chief Judge Cardozo wrote: “A contest, then, begins when the insurer avoids, or seeks to avoid, the obligation of the contract by action or defense. If the insured or the beneficiary is plaintiff, suing to declare the policy in force or to recover money due, the contest takes its start when the insurer serves an answer disclaiming liability. If insured and beneficiary hold back, preferring to wait till the time for contest has expired, the point of beginning is the time when the insurer sues in equity to declare the policy annulled (Cohen v. N. Y. Mut. Life Ins. Co., 50 N. Y. 610, 625). There are said to be practical difficulties in applying such a formula. The policy may be payable to the estate of the insured, and the personal representatives may not be named till the expiration of the time permissible for contest. These and like complications will be unraveled when they develop. There is support for the conclusion that by fair implication the non-existence of parties amenable to suit will extend the limit of time within which suit may be begun (Northwestern Mut. Life Ins. Co. v. Pickering, supra; cert. denied, 263 U. S. 720; cf. Crapo v. City of Syracuse, 183 N. Y. 395; Oswego, etc., R. R. Co. v. State, 226 N. Y. 351, 360).” Of the questions there left open to “ be unraveled when they develop,” one must now be answered. That opinion points the way to the answer. If the only way the company can contest the validity of the policy is by an action in court, there must be in existence someone against whom it can commence an action.

If the decision in this case were to be affirmed it would result in making it the law of this State that a company may be deprived of the right to contest a policy in all cases where the death of the insured occurs, before the expiration of the period within which the company may contest the validity of a policy payable to the estate of the insured. To accomplish that result the persons interested in the estate would have only to refrain from taking out letters until two years had expired from the issuing of the policy. The company would be powerless to protect itself, as it could not institute an action to contest the validity of the policy during that period. The result would be unjust and inequitable. It would place the company at the mercy of persons interested in the estate and deprive it of a valuable right. Every principle of fair dealing forbids such a result. ■

The right of the company to contest should be suspended during the period that it is prevented from contesting the policy by reason of the failure to secure the appointment of a personal representative. After such appointment the company may contest the policy either by affirmative action or by defending an action brought thereon by the personal representative. Such contest must be commenced, however, within two years, counting the time from the issuing of the policy to the death of the insured, and from the granting of letters to the commencement of the contest.

The judgment of the Appellate Division and that of the Special Term should be reversed and the motion denied, with costs in all courts.

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

Judgments reversed, etc.


author: Per Curiam.

text:
    Mary Lehnert, Appellant, v. Notlim Realty Corporation, Defendant, and T. & U. Mortgage Co., Inc., Respondent.

      (Argued June 10, 1929;
    decided July 11, 1929.)

      Charles H. Street for appellant.

      Charles H. Kelby for respondent.
   Per Curiam.

The plaintiff subordinated her mortgage to the lien on a building loan agreement and mortgage executed by the Notlim Realty Corporation to the T. & U. Mortgage Co., Inc. The clause of her mortgage reads; “ This mortgage is and shall, at all times continue to be subject and subordinate in lien to a building loan agreement and mortgage about to be made by the mortgagor herein or its assigns in the sum of thirty thousand dollars and is and shall continue to be subordinate in lien to any and all advances made and to be made up to the said total principal sum of thirty thousand dollars and interest on security of the said building .loan agreement and mortgage, and all such advances, charges and disbursements may be made without further subordinations or agreements.”

The Notlim Realty Corporation entered into a building and loan agreement of the T. & U. Mortgage Co., Inc., by which the latter company was to loan $30,000 to be advanced in installments and secured by a mortgage of $30,000. The first installment of $13,600 was to be made upon the filing of the building loan mortgage and the certificate of the president and secretary; upon the completion of the excavation of the said five houses $5,000 more; upon the completion of the foundation of all the houses $2,500. Other advances were to be made as the work progressed.

The T. & TJ. Mortgage Co., Inc., advanced $21,100. Of this amount, $3,600 was a bonus or commission of 12 per cent on $30,000, which the mortgage company charged the Notlim Realty Corporation for the loan. This amount is not an advance made upon or under the building loan agreement. This provides that the first payment of $13,600 shall be made to the mortgagor for the purpose of building or construction. The evidence indicates that the advance was made to purchase building material. It was not contemplated as between the two mortgagees that the mortgagor after receiving the $13,600 should return $3,600 of it to the building loan mortgagee. As a fact, all that the Notlim Realty Corporation received on this first payment was $10,000.

The Appellate Division allowed the T. & U. Mortgage Co., Inc., $21,100, the amount advanced, which included this bonus and interest on $30,000, the amount of the mortgage, $8,900 of which was not advanced. This judgment must be modified by deducting the $3,600 bonus, making the principal sum to be due on the T. & U. Mortgage Co., Inc., mortgage $17,500, with interest on this amount, not on $30,000.

The judgment should be modified in accordance with this opinion and as modified affirmed, without costs.

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

Judgment accordingly.


text:
    Lang's Creamery, Inc., Appellant, v. City of Niagara Falls et al., Respondents.
    (Argued June 5, 1929;
    decided July 11, 1929.)

      Robert J. Moore for appellant.
    Plaintiff has adopted the proper remedy. (Ex parte Young, 209 U. S. 123; Dobbins v. Los Angeles, 195 U. S. 223; Yee Gee v. San Francisco, 235 Fed. Rep. 757; Truax v. Raich, 239 U. S. 33; Municipal Gas Co. v. Pub. Serv. Com., 225 N. Y. 89; Buffalo Gravel Corp. v. Moore, 201 App. Div. 242; Star Co. v. Brush, 103 Misc. Rep. 631; 104 id. 404; 185 App. Div. 261; Buffalo Fertilizer Co. v. Town of Cheektowaga, 61 Misc. Rep. 404; United Traction Co. v. City of Watervliet, 35 Misc. Rep. 392.)

      George W. Knox for respondents.
    Plaintiff’s contention that it has resorted to its proper remedy has not been sustained. (Marvin Safe Co. v. Mayor, etc., of New York, 38 Hun, 148; Coykendall v. Hood, 36 App. Div. 558; Lee v. O'Malley, 140 App. Div. 592; Pond v. Harwood, 139 N. Y. 111; West v. Mayor, etc., of N. Y., 10 Paige Ch. 539; Wallack v. Society for Reformation of Juvenile Delinquents, 67 N. Y. 28; Wolfe v. Burke, 56 N. Y. 115; Eldridge v. Hill, 2 Johns. Ch. 281; Shulz v. Albany, 42 App. Div. 437; Buffalo Gravel Corp. v. Moore, 201 App. Div. 242; Davis v. American Society, 75 N. Y. 363.)
   Per Curiam.

The city of Niagara Falls has a milk ordinance, the validity of which is not challenged in this action, which provides that no one shall sell milk in the city without obtaining a permit or license from the Health Officer, renewable annually, which shall be applied for in writing, stating the sources of applicant’s milk supply. On such an application the Health Officer shall inspect such sources of supply having in view the protection of the public health.” If he is satisfied that the applicant has fully complied with the regulations, a milk dealer’s permit shall be issued to the applicant.

In the year 1921, section 13-a was added to the milk ordinance. It provides: “ No milk or cream shall be sold or offered for sale as ' pasteurized ’ milk or cream unless the same shall have been ' pasteurized ’ within the limits of Niagara Falls.”

Pasteurization is a simple process devised by Pasteur for preventing or checking fermentation in milk or other fluids by exposure to a temperature of about 145 degrees Fahrenheit. Milk thus pasteurized and cooled and protected against subsequent contamination or deterioration may be used with confidence that it has been rendered safe as regards pathogenic bacteria, without serious injury to any of the normal constituents of the milk itself.

Any other pure and wholesome milk, raw or pasteurized, may be sold in the city of Niagara Falls by a licensed dealer without express restrictions upon the source of origin.

Plaintiff is a domestic corporation which pasteurizes milk in the city of Buffalo where it maintains a pasteurizing plant. It bottles its product and desires to sell the bottled product in the city of Niagara Falls. It has not applied for a license to sell milk in Niagara Falls because it has been informed by the city officials that the ordinance will be enforced against it. It challenges the validity of this ordinance as an unreasonable exercise of the power of the city, under General City Law (Cons. Laws, ch. 21 ; art. 2-A [Home Rule Act], § 20, subd. 13) to regulate and license occupations and businesses so as to preserve and care for the health of the inhabitants of the city and visitors thereto and as an arbitrary discrimination against out-of-town dealers in pasteurized milk. It brings this action to restrain the city and its officials from enforcing its ordinance or interfering with the sale in the city by it of pure pasteurized milk and cream.

Defendants not only assert the reasonableness of the ordinance but put in issue the allegations of the complaint that plaintiff maintains a proper plant in Buffalo; assert that plaintiff violates the regulations of the State Department of Health in many particulars in maintaining its plant and that it would not be entitled to a milk license in any event.

On the trial, the official referee held that the ordinance was an invalid exercise of municipal power and made findings of fact to the effect that plaintiff met all the requirements of the health laws of the State of New York, and of the State Health Department and of the ordinances and regulations of the health departments of the municipalities in which it sells its pasteurized milk products.

The Appellate Division not only upheld the ordinance as a valid exercise of municipal power but also reversed the findings of fact and made new findings to the effect that plaintiff has failed to establish that if the bar of the pasteurization ordinance were removed, it would have a right to a permit to sell its milk in the city of Niagara Falls. The reversal was on the law and the facts and the evidence sustains such findings. The plaintiff, although it litigated these questions on the trial, now maintains that these findings are irrelevant and not proper subjects of inquiry until it makes its application for a permit to sell milk in the city of Niagara Falls. It argues that if milk is bottled after pasteurization and thus protected from contamination, no reason connected with the protection of the public health can be given why it should be pasteurized in the city of Niagara Falls; that it would be better for sanitary purposes to have it properly pasteurized at the point of origin if it could be delivered promptly thereafter than to have it exposed to deterioration by being shipped into the city for the purpose of pasteurization and that the only purpose and effect of the ordinance are to discriminate in favor of local dealers in milk.

The Sanitary Code of New York provides only that pasteurized milk shall be delivered to the customers within thirty-six hours after pasteurization. Doubtless much may be said against the reasonableness and fairness of the ordinance as a health regulation; On the other hand, the local authorities are allowed a wide latitude in adopting regulations directly affecting the health of the city. The question must be regarded as an open one in this court.

However, on the facts as found by the Appellate Division, which are sustained by the evidence for the defendants, and in some respects not denied by the plaintiff, the plaintiff is not in a position to question the validity of the ordinance in this action. It should apply to the local authorities for a license or permit to sell its milk products. If such application is unreasonably refused, it would then have a remedy through mandamus to right the wrong that it has suffered. (People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187.) In such proceedings the validity of the ordinance would be subject to attack. If, however, on such an application, it did not appear that its pasteurization plant was properly conducted and its sources of milk supply were sanitary, the license might reasonably be refused without regard to the validity of the ordinance.

Plaintiff is now in the position of one who seeks a determination that a statute is unconstitutional without showing that his rights are affected thereby. (People v. Sanger, 222 N. Y. 192, 194; People ex rel. Durham R. Corp. v. La Fetra, 230 N. Y. 429, 440.) It has no standing in court to raise the question until it establishes that it is directly affected by the enforcement of the ordinance.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    The People of the State of New York, Appellant, v. William Lyttle, Respondent.
    (Argued June 6, 1929;
    decided July 11, 1929.)

      Joab H. Banton, District Attorney (John C. McDermott of counsel), for appellant.
    The baseball pool slip in evidence is a policy slip. (People v. Lavin, 179 N. Y. 164; Carl Co. v. Lennon, 86 Misc. Rep. 255; Ludington v. Dudley, 9 Misc. Rep. 700; Irving v. Britton, 8 Misc. Rep. 201; State v. Sedgwick, 25 Del. 453; Wilkinson v. Gill, 74 N. Y. 63; Bueno v. State, 40 Fla. 160; People v. Adams, 176 N. Y. 351; State v. Hilion, 245 Mo. 522; People v. Cronin, 189 Mo. 663; State ex rel. Kellogg v. Kansas Mercantile Assn., 45 Kan. 351; State v. Wilkinson, 170 Mo. 184.)

      Moses A. Sachs for respondent.
    It was not established by the testimony that the books and cards in evidence were policy slips. (People v. Bloom, 248 N. Y. 582; People v. Jones, 89 Hun, 12; People v. Nobblett, 244 N. Y. 355.) There was a fatal variance between the information and the proof. (People v. Dunmar, 106 N. Y. 502; People v. Motello, 157 App. Div. 510; People v. Corbalis, 178 N. Y. 516; People v. Knapp, 147 App. Div. 436.)
   Per Curiam.

So far as the record informs us, the game conducted by the defendant was one. involving a trial or test of skill, and not one dependent upon the drawing or choice of numbers. If the fact is otherwise, as the People’s brief-suggests, appropriate evidence should have been offered to bring the case within the statute.

Penal Law, section 974, permits a prosecution where the result of a wager is dependent on the selection of numbers, even though not strictly the game of policy, but in such circumstances the information should be framed upon that theory.

The judgment should be affirmed.

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

Judgment affirmed.


text:
    Warren F. Rollins, Doing Business under the Name of Rollins Bros., Appellant, v. James W. Armstrong, Individually and as Superintendent of Buildings of the City of Yonkers, Respondent.
    (Argued June 7, 1929;
    decided July 11, 1929.)

      James Taylor Lewis for appellant.
    The “ front wall ” is that upon the front of the building, whichever way it faces. (Rice v. Van Vranken, 225 App. Div. 179.)

      Harry J. Laragh, Corporation Counsel (Charles S. Witwer of counsel), for respondent.
   Per Curiam.

The front wall of the building within the meaning of the zoning ordinance of the city of Yonkers is the one fronting on the street, and not the one designated by the builder as the front.

The record does not adequately present the question whether in computing the height of the front wall where the building does not immediately adjoin the street, the average level of the lot is to be taken as the base in accordance with the Building Code.

The order should be affirmed with costs.

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

\ Order affirmed.


text:
    Jane Reilly, Plaintiff, v. Empire State Improvement Corporation et al., Defendants. Morris Weiss et al., Appellants; Thomas F. McGuire et al., Respondents.
    (Argued May 28, 1929;
    decided July 11, 1929.)

      Harold Nathan, Chester Rohrlich and Morris Weiss for appellants.
    The referee erred in disallowing the Berson mortgage. (Gamble v. Queens County Water Co., 123 N. Y. 91; Salvin v. Myles Realty Co., 227 N. Y. 51; The Vigilancia, 68 Fed. Rep. 781; 73 Fed. Rep. 452; Matter of DeLaney Co., 26 Fed. Rep. [2d] 961; Wright v. Wright, 226 N. Y. 578; Hicks v. British Am. Assur. Co., 162 N. Y. 284; Wells v. Fisher, 237 N. Y. 79; Porter v. Municipal Gas Co., 220 N. Y. 152; Greene v. Barrett, Nephews & Co., 238 N. Y. 207.) The referee erred in disallowing the assigned judgments and in refusing to allow the full amount of those judgments in favor of the assignees thereof. (Harmon v. Hope, 87 N. Y. 10; Inglehart v. Thousand Island Hotel Co., 32 Hun, 377; 109 N.Y. 454.) The court erred in awarding allowances of $500 each to attorneys for respondents. (Fowler v. Fowler, 147 N. Y. 673; McDermott v. Hennesy, 9 Hun, 59; German Savings Bank v. Sharer, 25 Hun, 409; Wellington v. Ulster County Ice Co., 5 Wkly. Dig. 104; Dudgeon v. Smith, 23 Wkly. Dig. 400; American Mortgage Co. v. Butler, 36 Misc. Rep. 253; Syracuse Savings Bank v. Stokes, 71 Misc. Rep. 508.) The allowance of $1,000 as the referee’s fee was erroneous. (Finkel v. Kohn, 24 Misc. Rep. 367; New York Mutual Savings & Loan Assn. v. Westchester Fire Ins. Co., 98 App. Div. 285; Matter of Hurd, 6 Misc. Rep. 171; Chase v. James, 16 Hun, 14; First National Bank v. Tamago, 77 N. Y. 476; Griggs v. Day, 135 N. Y. 469.)

      Patrick B. Healy for Claude Geer et al., respondents.

      John M. O' Neill for Edward H. Gibbons et al., respondents.

      Charles N. Horstmann for Emma Lehrach, respondents.
   Per Curiam.

This is a surplus-money proceeding in which there is a balance of $11,464.87 to be disposed of among various claimants, resulting from the foreclosure of a second mortgage.

The referee to whom the matter was referred for hearing and determination disallowed the claim of Aaron W. Berson as a third mortgagee, and also his claim as assignee or purchaser of certain judgments recovered against the owner of the property, the Empire State' Improvement Corporation; refused to recognize a judgment recovered by Morris Weiss for services; and also a claim of Esther Wolfensohn as assignee or purchaser of certain judgments.

The disallowance by the referee of these recorded claims was because various parties had entered into a conspiracy to seize the assets of the corporation.

His finding is as follows (Record, p. 448, fol. 1344): 20. That the whole scheme of conduct on the part of said Empire State Improvement Corporation and said officers, the said Morris Weiss, Aaron W. Berson and Esther Wolfensohn, show a conspiracy to corral all the valuable assets of the said Empire State Improvement Corporation for the purpose of dividing them with the said officers, including the property now held by the Rosedale Gardens Corporation under the sale.”

We are unable to find in this record any evidence to sustain this finding. No doubt the officers of the corporation have been guilty of improper conduct but the evidence does not warrant the conclusion that Berson, Wolfensohn or Weiss were parties to the fraud.

The allowance of the referee’s fees of $1,200 in the absence of special agreement, was improper. He was entitled as matter of law to $10 for each day spent in the business of reference. The amendment to the Civil Practice Act (§ 1545) did not take effect until September 1, 1928.

Neither do we find any authority for the allowance in a proceeding of this kind of $500 to each of the opposing counsel. (See rule 262 of Rules of Civil Practice; McDermott v. Hennesy, 9 Hun, 59; German Sav. Bank v. Sharer, 25 Hun, 409; American Mortgage Co. v. Butler, 36 Misc. Rep. 253; Syracuse Sav. Bank v. Stokes, 71 Misc. Rep. 508.)

The order of the Appellate Division and that of the Special Term should be reversed, with costs in the Appellate Division and in this court, and the proceeding remitted to the Special Term for the entry of an order in accordance with this opinion.

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

Ordered accordingly.


author: Cardozo, Ch. J. Kellogg, J.

text:
    James J. Araje, Respondent, v. The Pennsylvania Railroad Company, Appellant.

      (Argued June 5,1929;
    decided July 11, 1929.)

      John Vance Hewitt, Harold L. Allen and Bernard Sobol for appellant.
    Any agreement between plaintiff and defendant’s baggage agent to accept and transport, in interstate commerce, a trunk containing only merchandise intended for sale, is unenforcible. (Northern Pacific Ry. Co. v. Washington, etc., 222 U. S. 370; Southern Ry. Co. v. Reid, 222 U. S. 424; Southern Ry. Co. v. Reid & Beam, 222 U. S. 444; Adams Express Co. v. Croninger, 226 U. S. 491; Chicago, St. Paul, etc., Ry. Co. v. Latta, 226 U. S. 519; Chicago, Burlington & Quincy Ry. Co. v. Miller, 226 U. S. 513; Jewelers’ Protective Union v. Pennsylvania R. R. Co., 36 I. C. C. 71; Burke v. Union Pacific R. R. Co., 226 N. Y. 534; 225 U. S. 317; Pennsylvania R. R. Co. v. Titus, 216 N. Y. 17; Boston & Maine R. R. Co. v. Hooker, 233 U. S. 97.)

      David Goldstein, Jonah J. Goldstein, Thomas G. Frost and Joseph W. Ferris for respondent.
    The defendant was hable to plaintiff under the acts of Congress and the

      baggage regulations formulated pursuant to authority granted by the Interstate Commerce Commission to all interstate carriers of passengers. (United States v. Milwaukee Refrigerator Transit Co., 142 Fed. Rep. 247; Armour Packing Co. v. U. S., 209 U. S. 56; Interstate Commerce Commission v. Chicago & Great Western Ry. Co., 141 Fed. Rep. 1003; 209 U. S. 108; Penn. R. R. Co. v. International Coal Co., 230 U. S. 184; New Haven R. R. Co. v. Interstate Commerce Comm., 200 U. S. 367; New York Central R. R. Co. v. Goldberg, 250 U. S. 85; Pond-Decker Lumber Co. v. Spencer, 86 Fed. Rep. 846; New York Central R. R. Co. v. Fontaine, 217 Ky. 211.)
   Cardozo, Ch. J.

Plaintiff, a passenger on the defendant’s railroad, checked, a trunk as baggage on an interstate journey. The trunk was lost or stolen. The defendant maintains that it is relieved of liability because the trunk should, have been transported not as baggage, but as freight.

Tariff schedules filed by the defendant pursuant to the statute define baggage for the purposes of the tariff as either “ personal ” or sample.” “ Personal baggage consists of wearing apparel, toilet articles and similar effects in actual use and necessary and appropriate for the wear, use, comfort and convenience of the passenger for the purpose of the journey, and not intended for other persons, nor for sale.” “ Sample baggage consists of baggage for the commercial as distinguished from the personal use of the passenger and is restricted to catalogues, models, and samples of goods, wares or merchandise, in trunks or other suitable containers, tendered by the passenger for checking as baggage to be transported on a passenger train or boat, for use by him in making sales or other disposition of the goods, wares or merchandise represented thereby.”

Plaintiff, when he checked his trunk, was asked by the baggagemaster as to its contents. His answer was that it contained linens and laces. He was asked what he was going to do with the merchandise. His answer was that he was selling it on the road.” No other information as to the nature of the sales was either given or requested. The merchandise was stated to have a value of $2,500, and a charge for excess value in that amount was paid. Upon payment being made, the trunk was accepted by the defendant for transportation as baggage, and the usual baggage check was handed to the passenger.

Personal ” baggage by concession the trunk was not. There was no purpose on the plaintiff’s part to use the contents for himself. “ Sample ” baggage it was not, for the merchandise was not representative of other merchandise to be sold, but was itself a stock in trade. The queries by the baggagemaster left the fact in that regard uncertain, but the character of the expected sales was brought out upon the trial. We are to say whether transportation was at the risk of the passenger by reason of the error.

The answer is supplied us by a rule of the defendant’s tariff filed with the Interstate Commerce Commission in accordance with the statute.

By rule 19 of the defendant’s tariff: When passengers fail to disclose nature of articles offered for checking and it develops en route or at destination that the transportation of such articles as baggage is not authorized herein, collection will be based on double the excess baggage rate for gross weight, minimum charge sixty (60) cents.”

The meaning of that rule is this, that where articles not properly baggage are received or transported as such through excusable mistake and not with fraudulent design to circumvent the law, the passenger shall pay for his error double the normal rate, and the contract, penalized, shall stand.

The rule, in thus providing, makes allowance for the venial and expected blunders of ignorance and innocence. Lawyers can draw a line of division between freight on the one hand and baggage on the other, though not even lawyers can- draw it always with facility and precision. The layman untrained in such distinctions must be forgiven his bewilderment. If the baggage to be carried is classified as “ personal,” he must separate the articles requisite for use upon the journey from those requisite for use when the journey is at an end (Dexter v. Syracuse, etc., R. R. Co., 42 N. Y. 326; Humphreys v. Perry, 148 U. S. 627). If the baggage is classified as “ sample,” he must separate the things that he is carrying for purposes of sale from things carried for sale as representative of a larger stock. There is opportunity in such "discriminations for honest misconception. The law has said through this rule what the consequences shall be. The bailment is preserved, but the money penalty is paid.

There is a point up to which this conclusion is accepted without dissent. In the view of the minority of the court, the plaintiff might recover if he had been silent as to the contents of the trank when he checked it at the station. The argument is that by speaking he took himself without the rule, since the nature of the articles was thus disclosed at the beginning. One may question a construction of the tariff that lays a premium upon, reticence. No doubt,' in the vast majority of cases, a baggagemaster, if informed at the beginning as to the articles to be carried, will know whether they are baggage, and will reject them unless they are. This does not mean, however, that if he makes a mistake, the consequence is to be worse for a passenger acting in good faith than if disclosure has been delayed till the trunk is on its way. Indeed, the penalty in fairness should be not more rigorous but less, if distinction there is to be between the one case and the other. A passenger so misled has the added excuse of reliance on an assurance of regularity by one whose experience and knowledge may be presumed to be superior. There is no reason to believe that the rule ignores and reverses these distinctions of degree. The decisive point of time is not when information is imparted. It is the time of understanding. We are to look to the moment when there was recognition or appreciation of the fact that the goods were not baggage, though the belief that they were may have been due to misconception of the law. Then and only then it develops * * * that the transportation of such articles as baggage is not authorized herein ” (Rule 19). The test is knowledge of the classification appropriate to the thing delivered, not knowledge merely of the facts from which classification would be possible for experience and wisdom.

The bailment would thus stand, subject to the burden of the penalty, though the nature of the articles had been disclosed to the baggageman at the beginning of the transit. If the contrary be assumed, however, disclosure to vitiate the bailment must be distinct and unequivocal, unless indeed there has been fraud, which in the case now before us is not suggested by the record. The facts must have been so stated that there was no room for misconstruction as to the legal inferences that flow from them. All that appears here is the plaintiff’s statement to the baggagemaster that the merchandise which he was checking as baggage was to be sold upon the road. This without more left its quality indeterminate. The tariff is explicit that samples may be sold by the passenger and retain their quality as baggage if they are sold as representative of other goods, as samples of a stock (cf. Jewelers’ Prot. Union v. P. R. R. Co., 36 I. C. C. 71). The baggage-master did not ásk, and was not told, whether the sale of these goods was for one purpose or another. Perhaps he did not know that the distinction made a difference. Perhaps, if he did, he took it for granted that the sale was to be consistent with the representation by the passenger, a representation implied if not express (Humphreys v. Perry, supra, at p. 640), that the trunk was sample ” merchandise. His fault in reality was in failing to press the inquiry and ascertain whether the putative samples were such in very truth or were themselves a stock in trade. We cannot say as matter of law that .from the facts as they were disclosed to him, he should have known then and there that the things to be carried were not baggage but something else.

In these circumstances, N. Y. Central R. R. Co. v. Goldberg (250 U. S. 85) gives the applicable rule. Goldberg shipped a case of furs, marking them as such. His representative signed a bill of lading describing them as drygoods, for which there was a lower rate of carriage. “ The misdescription was the driver’s mistake, not made with any intent to fraudulently misrepresent the nature of the merchandise shipped ” (p. 86). The court refused to uphold the contention of the railroad company that the' effect of the misdescription was to reheve it of liability altogether. In making this decision, there was reliance upon a condition in the bill of lading filed in accordance with the statute. “ If upon inspection it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped.” The effect of this condition was held to be that a misdescription of the goods, not attributable to fraud,” laid the burden on the shipper or the consignee to pay the added charge, but threw the burden on the carrier in the event of failure to deliver (cf. Merchants’ Cotton Press, etc., Co. v. Ins. Co. of No. Am., 151 U. S. 368).

There is nothing to the contrary in Humphreys v. Perry, supra, a case arising in 1885, before the regulatory acts of Congress, and involving only a question of liability at common law. The question to be determined here is the meaning and effect of the schedules and rules of a statutory tariff. We are to say whether they evidence a purpose that upon payment of a penalty there shall be confirmation of the bailment unless made by the bailor with fraudulent intent. Schedules and tariffs have rendered obsolete to some extent the perils to which carriers were subject in former days through confusion between freight and baggage. Jewelry unnecessary for the journey might once have imposed a crushing liability if the carrier receiving it without knowledge of its character had been held to a duty to carry it in safety. Now there are standing provisions in the schedules of the tariffs whereby liability is limited to a sum that is moderate, or even nominal, in default of statement of the value. The evil to be avoided in these days is not so much prejudice to the carrier as prejudice to shippers if facilities of transportation withheld from the many are granted to a few. This evil is avoided by the imposition of a higher rate when the delivery as baggage is the result of honest error, and the annulment of the contract when the purpose accompanying delivery is furtive or illicit. If there is need of other sanction, amendment of the tariff is competent to set the mischief right.

The judgment should be affirmed with costs.

Kellogg, J.

(dissenting). The plaintiff purchased a ticket for an interstate journey upon the railroad of defendant. For transportation to his destination he delivered to the defendant a trunk to be checked as baggage. The baggagemaster asked him what the trunk contained; he replied “ linens and laces.” Asked what he did with the merchandise, he answered that he “ was selling it on the road.” He placed a valuation of $2,500 upon the merchandise and paid a charge of $2.40 for the excess value. The agent accepted the trunk as baggage and delivered a check therefor to the plaintiff. On arrival at destination the plaintiff presented the check to obtain the trunk. The trunk could not be found; it had been lost or stolen. This action was brought to recover the sum of $2,500, the valuation figure which had been placed upon the trunk.

The Interstate Commerce Act, section 6, paragraph 7, provides that no carrier shall engage in the transportation of persons or property “ unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published; ” that no carrier shall extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.”

The defendant, in accordance with the act, filed its tariff schedules with the Interstate Commerce Commission and duly published the same. These schedules or rules make provision governing the transportation of passengers’ baggage. Rule 1 provides that baggage checks will be issued for authorized articles only when the owner is' a passenger over the same line to the same destination as that of the baggage or beyond. Rule 4 defines baggage to be either personal ” or sample.” Personal baggage consists of articles in actual use and necessary for the wear, comfort and convenience of the passenger for the purposes of his journey. “ Sample baggage consists of baggage for the commercial as distinguished from' the personal use of the passenger and is restricted to catalogues, models, and samples of goods, wares or merchandise, in trunks or other suitable containers, tendered by the passenger for checking as baggage to be transported on a passenger train or boat, for use by him in making sales or other disposition of the goods, wares or merchandise represented thereby.”

Concededly, the linens and laces, contained in the plaintiff’s trunk, were not personal baggage. While the point is not conceded, it seems equally clear that they were not sample baggage.” The plaintiff informed the baggagemaster, as to the merchandise contained in the trunk, that he was selling it on the road.” Upon the trial, he was asked what he purposed to do with the merchandise, and he replied to sell it on the road.” The burden was clearly upon the plaintiff, who sought recovery for the breach of a contract to carry baggage, to prove that he had delivered baggage for carriage to the defendant. This he did not do. If baggage at all, it must have been “ sample ” baggage. It was not such baggage, since no proof was given that the merchandise delivered by the plaintiff was designed for use by him in making sales or other disposition of the goods, wares or merchandise represented thereby.” The things which the trunk contained were not representative of other merchandise to be sold; they were themselves the merchandise to be sold.

The plaintiff contends that the provisions of section 6, paragraph 7, of the Interstate Commerce Act apply to freight but not to passenger’s baggage. It has been held otherwise. (Boston & Maine R. R. Co. v. Hooker, 233 U. S. 97.) In that case a passenger sought to recover the full value of checked baggage which had been lost in transit. The tariff schedules' limited the carrier’s liability for lost baggage to $100, unless a greater value had been declared. The passenger had not declared an excess value. It was held that a recovery of more than the sum of $100 might not be had, since the carrier was forbidden by paragraph 7 of section 6 of the act from extending to any shipper or other person any facility or privilege not specified in the filed tariffs. To the same effect is Galveston, H. & S. A. R. R. Co. v. Woodbury (254 U. S. 357).

The plaintiff contends that he may recover upon a special agreement made between himself and the baggage-master, representing the defendant, that for the extra charge of' $2.40 the defendant would carry the merchandise as sample baggage. The baggagemaster was powerless to make the special agreement. (Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155.) There, the owner of high grade horses in Springfield, Ill., desired to rush them to New York city, that they might be offered for sale at an impending sale at Madison Square Garden. The agent agreed that, if the plaintiff would load them on a car of the defendant before a specified hour, the car would be hauled to Joliet, Ill., in time to be connected up with the fast freight train for New York, known as the “ Horse Special.” The plaintiff loaded as required. The defendant failed to deliver the car at Joliet in time to join the “ Horse Special.” As a result, the plaintiff was unable to exhibit his horses for sale at the New York auction. It was held that the agent was without power to make the special contract for speedy delivery, since the filed tariffs extended no such privilege to shippers generally. Therefore, a recovery was denied. The same holding was made in Atchison, T. & S. F. Ry. Co. v. Robinson (233 U. S. 173).

The plaintiff contends that the defendant, if not liable on a contract to carry, was liable as a bailee for its negligence in not caring for the trunk. The difficulty is that the baggagemaster was not authorized to receive the trunk for any purpose, and, therefore, the defendant entered into no contract of bailment. (First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278, 287.) In the case cited the cashier of the defendant, without authority, accepted bonds belonging to the plaintiff for safekeeping. No charge for the service was to be made. The bonds were lost when the defendant’s safe was burglarized. It was held that there could be no recovery by the plaintiff. The court said: “ The duties and obligations of a bailee cannot be thrust upon one against his consent, but must be voluntarily assumed by the party himself, or some authorized agent, as in every obligation founded upon contract express or implied.” Again it said: “If there was no bailment to the corporation it neglected no duty, and was guilty of no negligence. The whole duty of a bailee rests upon contract, and if there was no contract there was no duty.” In American Railway Express Co. v. Levee (263 U. S. 19) it was said by Holmes, J., concerning an effort of a shipper, who lost goods in transit, to avoid a limitation of liability provided for in the carrier’s receipt, by suing in tort rather than in contract: “ The effect of the stipulation could not have been escaped by suing in trover and laying the failure to deliver as a conversion if that had been done.” So here, at least in the absence of proof of gross or active negligence, a recovery in tort is unavailable, in lieu of a recovery upon a contract of carriage or bailment, when the latter, due to lack of power in the agent, would necessarily fail.

Rule 19 of the defendant’s tariffs reads: “ When passengers fail to disclose nature of articles offered for checking and it develops en route or at destination that the transportation of such articles as baggage is not authorized herein, collection will be based on double the excess baggage rate for gross weight, minimum charge sixty (60) cents.” The rule does not apply, for this is not a case where a passenger has failed “ to disclose nature of articles offered for checking.” The plaintiff fully disclosed the nature of the merchandise offered.

The case of New York Central R. R. Co. v. Goldberg (250 U. S. 85) does not help the plaintiff. There, furs were innocently shipped by the owner as dry goods, taking the freight rate for the latter, which was one-half the rate for the former. The furs were stolen in transit, and a recovery was allowed. The bill of lading provided: If upon inspection it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped.” The court held that this provision was exclusive in its imposition of a penalty upon the shipper, and that by implication therefrom the contract of carriage in the particular instance received sanction.

The case of Humphreys v. Perry (148 U. S. 627) seems conclusive upon this issue. There a passenger checked as baggage a trunk containing a stock of valuable jewelry designed to be sold. The train was wrecked and the jewelry lost or stolen. It was held, on common-law principles, that jewelry designed for sale did not constitute baggage, and there could be no recovery upon the contract to carry it as such. Here, we have a statute which forbade the carrier to extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.” The tariffs made no provision for the carriage of merchandise to be sold as passenger’s baggage. The promise impliedly made by an unauthorized agent, so to carry the merchandise of the plaintiff, was forbidden by the statute to be made. There can be no recovery upon the void promise.

The judgment should be reversed and the complaint dismissed.

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

Judgment affirmed.


author: Cabdozo, Ch. J. Kellogg, J.

text:
    Harriet E. Sleicher, Appellant, v. Charles A. Sleicher, Respondent.

      (Argued April 22, 1929;
    decided July 11, 1929.)

      Clinton T. Taylor and Charles W. Bacon for appellant.
    The jurisdiction of the court which rendered the judgment of annulment pleaded by the plaintiff cannot be assailed collaterally by a motion based upon the pleadings and the judgment is conclusive until set aside or reversed by a direct proceeding. (Ferguson v. Crawford, 70 N. Y. 253.) The Supreme Court has jurisdiction of an action to annul a marriage on the ground of the fraud of one of the parties in concealing the fact that prior to, up to and including the time of such marriage, he was insane. (Svenson v. Svenson, 178 N. Y. 54; Rutstein v. Rutstein, 221 App. Div. 70; Truiano v. Truiano, 121 Misc. Rep. 635; Finch v. Goldstein, 245 N. Y. 300; Griffin v. Griffin, 122 Misc. Rep. 837; 209 App. Div. 883; Smith v. Smith, 112 Misc. Rep. 371; Hughes v. Jones, 116 N. Y. 67.) A judgment annulling a marriage restores the parties thereto to the status which existed prior to such marriage. (Matter of Moncrief, 235 N. Y. 390; Matter of Mortens, 130 Misc. Rep. 34.)

      Frank H. Deal for respondent.
    Anyone may contest a final judgment of annulment for lack of jurisdiction, fraud, collusion or any jurisdictional fact. (Davidson v. Ream, 178 App. Div. 362.) The contract upon which the action is brought has terminated under its own terms. (Matter of McKinley, 66 Misc. Rep. 126; Hayden v. Hayden, 127 Misc. Rep. 162; Valleau v. Valleau, 6 Paige, 207; Taylor v. Taylor, 63 App. Div. 231; White v. White, 1 Redf. 376; Matter of Kutter, 79 Misc. Rep. 74.)
   Cabdozo, Ch. J.

Plaintiff and defendant were married in 1908. By a separation agreement made in 1923, the defendant, the husband, promised to pay to his wife, the plaintiff, for her support and maintenance $400 monthly from April, 1923, to June, 1924, and $350 monthly thereafter. In case of divorce, he consented that allowance for alimony at the same rate be incorporated in the decree, to continue so long as she remains unmarried.” A court of competent jurisdiction in Nevada gave judgment for divorce in October of the same year. By the judgment all demands for alimony, maintenance and support ” were declared to be “ fixed and prescribed ” by the separation agreement, which was made part of the decree as if incorporated therein.

Plaintiff contracted a second marriage with one Hannum on August 16, 1924, and thereafter brought suit in this State to annul it on the ground of fraud. Judgment of annulment was granted on August 17, 1927, the basis of the decree being the fraud of the husband “ in fraudulently concealing from the plaintiff the fact that prior to, up to and including the time of said marriage, he was insane.” Alimony payments ceased upon the second marriage, and have never been resumed. This action, begun in February, 1928, is brought to recover the unpaid installments. The plaintiff claims that the right to alimony revived when the second marriage was annulled for fraud avoiding it from the beginning, and that the effect of the revivor was not merely to charge the defendant with a prospective liability for installments falling due from the time of the annulment, but to charge him retrospectively with installments lawfully withheld while the second marriage was in force. We think the liability should be adjudged as to the future, but denied as to the past.

A marriage procured by fraud is voidable, not void. Even so, annulment when decreed, puts an end to it from the beginning (Matter of Moncrief, 235 N. Y. 390; American Surely Co. v. Conner, 251 N. Y. 1). It is not dissolved as upon divorce. It is effaced as if it had never been. From then on, payments to either spouse may be demanded and must be made on the footing of its nullity. This is true, according to the holding of some courts, where bequests of income are to be paid until remarriage (Matter of Wombwell’s Settlement, L. R. [1922] 2 Ch. 298; Matter of Garnett, [1905] 74 L. J. [Ch.] 570). It is true and for like reasons where installments of alimony are to be paid under a judgment. A marriage is unreal if procured by force or fraud.

The retroactive effect of rescission from the beginning is not, however, without limits, prescribed by policy and justice. These limits are not unknown even in controversies between parties or privies to the rescinded act (American Surety Co. v. Conner, supra), but they have their typical application to the rights and duties of a stranger. For the stranger, rescission from the beginning is a watchword to be heeded when an act to be thereafter done with reference to one or other of the parties may be governed or affected by the time or quality of the severance. It does not express a rule that reaches back into the past and lays upon innocence the opprobrium of guilt. The defendant, the first husband, must now comply with the mandate of the judgment of divorce and provide for his former wife as for one who has not remarried. This does not mean, as we view it, that he must provide for her during the years when the voidable remarriage was in force and unavoided.

“ The doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice ” (Gibson v. Chouteau, 13 Wall. [U. S.] 92, 101; Lynch v. Bernal, 9 id. 315, 325). It becomes an instrument of injustice when used to change the quality of intervening acts or omissions by strangers to the controversy. The courts have shaped and restrained it in adaptation to its purpose (Cook v. Tullis, 18 Wall. [U. S.] 332; Taylor v. Robinson, 14 Cal. 396; Bird v. Brown, 4 Exch. 786, 799; Galle v. Tode, 148 N. Y. 270, 280). The defendant was not at fault when he failed to make his monthly payments of alimony from August 16, 1924, the date of the second marriage, to August 17,1927, the date of the annulment. If the plaintiff had been unwilling to take advantage of the fraud, the second marriage might have continued while the parties to it were alive. The defendant could not know that it would ever be annulled, still less the time or cause. During all the years that it continued, or at least till action was begun, the second husband was chargeable with a duty of suitable support. There is a presumption, if nothing more, that the duty was fulfilled (Cohen v. Cohen, 150 Cal. 99; Phy v. Phy, 116 Ore. 31; Nelson v. Nelson, 282 Mo. 412). To say that the judgment of annulment has put the defendant in default through the fiction of-relation is to say that the plaintiff shall have support or an equivalent from each of two men during the same period of time, and this by force of a fiction subservient to justice. Analogies of legal doctrine all point the other way (Civ. Prac. Act, § 1159; Krauss v. Krauss, 127 App. Div. 740; Nelson v. Nelson, supra; Cohen v. Cohen, supra; Phy v. Phy, supra; Albee v. Wyman, 10 Gray, 222; Sistare v. Sistare, 218 U. S. 1, 22).

The question in its last analysis is one as to the construction and effect of the judgment of the Nevada court. The defendant’s duty is what that judgment made it and no more. The judgment, following the agreement, charged him with a duty which arose month by month, if it ever arose at all. Default there was none unless also default that was immediate. The meaning, as we view it, is not uncertain, but uncertainty, if any, must be so resolved that form shall be adapted and made subordinate to purpose. The purpose of an award of alimony is support for a divorced wife not otherwise supported, This purpose is perverted by imputing a dual obligation. In the case at hand, the wife might have waited to annul the marriage to her second husband till the first was in his grave. If that had been her choice, we cannot bring ourselves to believe that she could have recovered from his estate the installments accruing during life on the theory that by the fiction of relation he had been in default from the beginning. The test must be the same, however, whether the suit for installments overdue is brought during life or postponed till after death (Van Ness v. Ransom, 215 N. Y. 557). We think a fair construction of the decree, in the light of the words to be interpreted and the purpose to be served, fits the duty month by month to the situation then existing, and declines to aggravate it later for defaults innocent when suffered. The duty is personal, and personal, not vicarious, is the wrong to be redressed.

We find no basis for a ruling that the decree of annulment is void for defect of jurisdiction. True, when it was rendered a marriage voidable for insanity was not subject to annulment at the suit of the sane spouse (Hoadley v. Hoadley, 244 N. Y. 424), a rule now changed by statute (Civ. Prac. Act, § 1137, as amd. by L. 1928, ch. 83). This does not mean, however, that a false representation as to sanity could never in any circumstances give ground for such a suit, though made in a lucid interval and with fraudulent intent. Fraud is an accepted basis for. the annulment of a marriage. The phases of fraud are manifold. We are not concerned at the moment to enumerate or limit them. There may or may not be error in a decree of annulment built on such a basis. There is no defect of jurisdiction appearing on its face. The decree must prevail against collateral attack.

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.

Kellogg, J.

(concurring in result). This is a motion made by the defendant, formerly the husband of the plaintiff, for a judgment on the pleadings, in an action brought by the plaintiff to recover unpaid installments of alimony, directed to be paid to her by a final decree in an action for divorce.

For the purpose of the motion the following facts, asserted in the pleadings, may be regarded as true: The parties to the action were married in the State of New York on the 27th day of July, 1908. On the 2d day of April, 1923, they separated by mutual consent and have ever since lived apart. At the time of the separation they entered into an agreement, in writing, whereby the defendant engaged himself to pay to the plaintiff the sum of $400 monthly until June, 1924, and thereafter the sum of $350 monthly. It was agreed that, if the plaintiff should procure a divorce in any action subsequently brought, the contract provisions for monthly payments to the plaintiff, “ to continue so long as she remained unmarried,” should be incorporated in the decree which might be granted. On the 26th day of October, 1923, the plaintiff obtained a decree of absolute divorce in a court of competent jurisdiction in the State of Nevada. The decree provided that the defendant should thereafter pay alimony to the plaintiff in monthly installments as-provided in the agreement between the parties. On the 16th day of August, 1924, a ceremonial marriage between the ■ plaintiff and Howard E. Hannum was performed. On the 17th day of August, 1927, this marriage was annulled, at the suit of this plaintiff, by a judgment of the Supreme Court of this State. The grounds of the annulment were that Howard E. Hannum had fraudulently concealed from the plaintiff that “ he was insane prior to, up to and including the time of said marriage.” Alimony had been paid by the defendant to the plaintiff until August, 1924. Since August 16th, 1924, the day of the plaintiff’s marriage to Hannum, no installment of alimony has been paid. Upon these facts arises the question: Did the defendant pay alimony to the plaintiff “ so long as she remained unmarried? ”

A marriage may be annulled on the ground that it was induced by fraud, where one party, having knowledge that he was afflicted with a venereal disease, had concealed the fact from the other party. (Svenson v. Svenson, 178 N. Y. 54.) That it may be annulled for the fraudulent concealment by one party of the fact that he has been a sufferer from epilepsy has been held. (Lapides v. Lapides, 224 App. Div. 257.) We conceive that the fraudulent concealment of a serious disorder, which is mental rather than physical, may likewise constitute an adequate ground for annulment. A person afflicted with insane delusions may be guilty of an intentional and deliberate homicide. (People v. Ferraro, 161 N. Y. 365.) Equally well must there be instances where an insane person is capable of committing a fraud. We must assume that, in annulling the marriage between the plaintiff and Howard E. Hannum, the Supreme Court of this State had before it such an instance. As the court may have acted with jurisdiction, in determining that the marriage was induced by the fraudulent concealment, by Hannum, of the fact that he was then insane, its decree of annulment is not now open to collateral attack. The case of Hoadley v. Hoadley (244 N. Y. 424) can afford no comfort to the defendant. It was there held that an annulment on the ground of insanity could not be granted at the suit of the spouse who is sané; not that the sane party to a marriage would be denied annulment for a fraud committed by the insane party which induced the marriage.

Although the marriage between the plaintiff and Hannum originally may have been voidable, rather than void, it became, when the decree of annulment was pronounced, absolutely void from its very inception. (Collins v. Collins, 71 N. Y. 269; Price v. Price, 124 N. Y. 589; Jones v. Brinsmade, 183 N. Y. 258; Matter of Moncrief, 235 N. Y. 390.) In Jones v. Brinsmade (supra) it was held that, pending the determination of an action for an annulment, brought by a wife against her husband, no alimony might be granted to the wife. The theory of the decision was that the wife was seeking a decree which, if granted, would relate back to extinguish, from the very inception of the marriage, every duty of maintenance owed to her by the putative husband; that the wife could not consistently claim alimony while pressing for a decree the granting of which would negative the existence of an obligation of support. Judge Cullen, in writing the opinion of the court, quoted with approval from Bishop on Marriage and Divorce, section 118, as follows: “The doctrine may have a limit under the operation of a statute, but it appears to be universal under the unwritten law, that, when a voidable marriage has been set aside by a decree of nullity, the parties are regarded as having never been married.” In Matter of Moncrief (supra) it was held that, under chapter 531 of the Laws of 1895, which provided that all children born out of wedlock, whose parents subsequently married, should be deemed legitimate, such a child was not saved from illegitimacy by a voidable marriage between its parents which was subsequently annulled. In retrospect, Howard E. Hannum, after the annulment of the marriage, was never obligated to furnish support to the plaintiff, for the two had never been married. If, in regard to procuring support from Hannum, the plaintiff may be deemed to have remained unmarried, it must clearly follow that, in respect to obtaining alimony from her former husband, under a decree providing for its payment by him “ so long as she remained unmarried,” she must likewise be regarded as a woman who had “ remained unmarried.” For these reasons, upon the assumption that the facts set up in the pleadings are true, the defendant is obligated to pay to the plaintiff the installments of alimony which have fallen due between August 16th, 1924, and the present day.

Pound, Crane, Lehman and Hubbs, JJ., concur with Cardozo, Ch. J.; Kellogg, J., concurs in result in separate opinion in which O’Brien, J., concurs.

Judgment accordingly.


author: Kellogg, J.

text:
    The People of the State of New York, Respondent, v. Sol Kohn and John Wriede, Appellants.

      (Submitted May 29, 1929;
    decided July 11, 1929.)

      Emil M. Haas for appellant.
    An inference of innocence could have been drawn from the evidence as consistently as one of guilt, and by reason thereof the People failed to establish the case against the defendants herein. (People v. Gluck, 188 N. Y. 167; People v. Connelly, 189 App. Div. 82; People v. Bennett, 49 N. Y. 137; People v. Mantin, 172 N. Y. Supp. 371; People v. Ledwon, 153 N. Y. 10.) The court's charge was erroneous. (People v. Flack, 125 N. Y. 324; McKenna v. People, 81 N. Y. 360; People v. Baker, 96 N. Y. 340; People v. Ohanian, 245 N. Y. 227; People v. Barone, 161 N. Y. 451.)

      Joab H. Banton, District Attorney (Archibald Firestone of counsel), for respondent.
    The evidence as adduced at the trial was, by its very nature, circumstantial and those circumstances were indicative of a criminal intent upon the part of the defendants, if the jury saw fit to so find. (People v. Bennett, 49 N. Y. 137; People v. Poulin, 207 N. Y. 73; People v. Atlas, 183 App. Div. 593; 230 N. Y. 629; People v. Rodawald, 177 N. Y. 408; People v. Long, 150 App. Div. 500; People v. Seidenshner,
      210 N. Y. 341; People v. Katz, 154 App. Div. 44; 209 N. Y. 327; People v. McCarthy, 250 N. Y. 358.) There was no error in the court’s charge. (People v. Fisher, 136 App. Div. 57; Winne v. McDonald, 39 N. Y. 233; People v. Fanning, 131 N. Y. 659; People v. Fanshawe, 65 Hun, 77; People v. Poulin, 207 N. Y. 73; People v. Johnson, 185 N. Y. 219; People v. Koenig, 180 N. Y. 155; People v. Taylor, 138 N. Y. 410; People v. Dimmick, 107 N. Y. 13; People v. McCullom, 103 N. Y. 587.)
   Kellogg, J.

The attempted burglary, of which the defendants have been found guilty, involved an effort to enter a flat in a tenement house, numbered 270 East Tenth street, New York city, which was occupied by a family named Shipkowski. The flat was on the fourth or top floor of the tenement building, and contained four rooms. At one end was the kitchen; at the other was the parlor or sitting room; between were two bedrooms. The apartment was customarily entered from a hallway by means of two doors, one into the kitchen, and one into the parlor. One of the bedrooms was equipped with a window, containing glass panes, which opened inwards from the hallway, like a door on a hinge. The testimony showed that Beatrice Shipkowski, a high school girl, on a certain morning, was doing housework in the kitchen, with the kitchen door locked. There came a rap on the door which was repeated several times. Beatrice, giving no answer, stepped into the bedroom furnished with a window. The window was swung inwards to leave an opening about seven inches wide. Beatrice, looking through the opening, observed a man standing at the kitchen door with a newspaper or newspaper parcel under his arm. Receiving no response to his rapping, the man walked down the hallway to the parlor door, and again knocked several times. He then passed up the hall stairway and lifted up the door giving upon the roof. In a few moments he came back; pushed in the bedroom window slightly; passed to the kitchen door, knocked and tried to open the door. He then returned to the parlor door and stood there. Beatrice said that he was “ tinkering ” at the door, but afterwards admitted that his back was toward her so that she could not see what he was doing. Beatrice called out through a window for her landlady, and a neighbor came. The neighbor saw a man, whom he identified as the defendant Sol Kohn, step out from the entrance of the tenement, 270 East Tenth street. As he came out he beckoned to a man standing in the entrance to the adjoining building, No. 272. This man, identified as the defendant John Wriede, waved in reply and stepped down to the walk to join Kohn. As the two walked away they were arrested by a policeman to whom the neighbor had called. The defendant Kohn told the policeman that he had been looking for “ a friend chauffeur.” Wriede said nothing. The two were returned to the Shipkowski apartment where Beatrice identified the defendant Sol Kohn as the man who had knocked on the doors. The neighbor noticed fresh marks on the parlor door. Beatrice and the policeman saw none. The defendants were then taken to the police station. On the way Sol Kohn was seen to deposit his newspaper, or newspaper bundle, upon a truck standing at the curb. This was substantially the entire proof given by the People. No proof was offered by the defendants.

As to the defendant John Wriede, we think that the proof gave rise to a bare suspicion that he was engaged with the defendant Sol Kohn in an attempt to commit the crime of burglary. Surely, the mere wave of a hand by a felon, who is leaving the scene of his crime, and a return wave by the person saluted, can have no force to establish that the two have been confederates in the offense committed. We are clear that the evidence was wholly lacking to establish the guilt of the defendant John Wriede. As to the defendant Sol Kohn, we think that the evidence justified the drawing of an inference of guilt. It is true that the repeated door rappings were not wholly inconsistent with innocence. Agents, seeking to write life insurance, or to make sales of household necessaries, frequently exhibit an equal persistence in their efforts to gain entrance- to a home. Nevertheless, in the absence of proof that Kohn was pursuing an innocent quest, it was a fair inference that his purposes were sinister and criminal. It lay with the jury, and not with the judge, however, to draw the inference. The trial judge instructed the jury that “ the inference is irresistible that the person who was there wanted to steal; ” that “ there is no other explanation and under the circumstances of this case that is the only inference that can be drawn from that evidence; ” that “ no logical man could find any other reason except that of guilt of the person who tried those doors; ” that “ it is your duty, in the absence of any explanation, to find that the man intended to commit a crime there, to steal or to do something else, that is all.” When a trial judge thus instructs a jury, his accompanying remarks that the question of guilt or innocence is for them to decide are wholly fatuous. It is idle to say that a jury, instructed that the inference of guilt is “ irresistible,” that it is their duty to find that the defendant “ intended to commit a crime,” that “ no logical man ” could find a verdict other than that of guilt, is permitted to exercise an independent choice between the two alternatives of guilt and innocence. Certainly a jury, which must find a verdict of guilt, in obedience to instructions, is not a judge of the fact, despite all wordy assurances to the contrary voiced by the trial judge. We think that the instructions involved serious error, and that the judgment of conviction must be reversed.

The judgment of the Appellate Division and that of the trial court should be reversed and a new trial ordered.

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

Judgments reversed, etc.