text:
    Catherine McCabe, Respondent, v. Clarence Mackay, Appellant, Impleaded with Another.
    (Argued March 31, 1930;
    decided May 6, 1930.)

      H. H. Brown and E. C. Sherwood for appellant.
    In the absence of statute there is no obligation on the owner of a building to keep the halls and stairways lighted. (Brugher v. Buchtenkirch, 167 N. Y. 153; Hilsenbeck v. Guhring, 131 N. Y. 674; Hudson v. Church of the Holy Trinity, 250 N. Y. 513; Sheehan v. East 98th, Street Corp., 242 N. Y. 262; Stacy v. Shapiro, 212 App. Div. 723; Lindsley v. Stern, 203 App. Div. 615; Nadal v. Fichten, 34 App. Div. 188; Kunder v. Purchase Holding Co., 188 App. Div. 94; Gordon v. Stone, 219 App. Div. 201; Kushes v. Ginsberg, 99 App. Div. 417; 188 N. Y. 630; Schick v. Fleischhauer, 26 App. Div. 210; Frank v. Mandel, 76 App. Div. 413.) Neither statute nor ordinance imposed any duty upon the defendant-appellant to light the stairway. Even if plaintiff had shown that article 8 of the Building Code was in effect prior to the erection of the building, section 159, subdivision 2, thereof would not be applicablé. (Stacy v. Shapiro, 212 App. Div. 723; Gordon v. Stone, 219 App. Div. 201; Drennan v. American Press Assn., 216 App. Div. 292; De Milt v. Hart, 235 N. Y. 464.)

      Milton Speiser and Joseph Speiser for respondent.
    Regardless of the statute or any ordinance, the defendant-appellant was bound to exercise reasonable care. (Murphy v. Broadway Impr. Co., 189 App. Div. 692; McNaley v. Oakwood, 210 App. Div. 612; Hart v. Grennell, 122 N. Y. 371; Wither v. Brooklyn Real Estate Exchange, 94 N. Y. Supp. 328.)
   Cardozo, Ch. J.

The defendant is the owner of an office building in the city of New York. Plaintiff, one of the occupants of the building, fell on the stairs, and was hurt. There is evidence that the electric light was not burning in the hall, and this after notice to the superintendent of the building. There is also a basis for an inference that the darkness caused the fall.

At common law, an owner of a building does not owe a duty to his tenants to provide the common ways with artificial light, in the absence of defective conditions, or conditions of peculiar danger, that may call for special warning (Hilsenbeck v. Guhring, 131 N. Y. 674; Sheehan v. East 98th Street Corp., 242 N. Y. 262). No such conditions are shown to have been present here. If the plaintiff is to prevail, the omission to provide a light must be found to have been a breach of a statutory duty.

We are told that such a duty has been imposed by article 8, section 159, of the Building Code of the city of New York. The difficulty is that this article does not apply to office buildings generally, but only to office buildings erected after the date of its enactment (Building Code, § 151). When the defendant’s office building was erected, the record does not inform us. In the absence of such evidence, there is no basis for charging him with a violation of the ordinance.

A new trial being necessary, there is need to state the rule that will govern liability if the ordinance antedates the erection of the building. “ Provision shall be made for the adequate lighting by artificial fight of all stairways, hallways and other means of exit required by this article ” (§ 159, subd. 2). The defendant insists that this requirement is sufficiently complied with when the owner supplies appliances suitable for fighting. The plaintiff insists that in addition, by reasonable implication, there is a duty of reasonable care in keeping the appliances lighted whenever fights are necessary during usual business hours (cf. DeMilt v. Hart, 235 N. Y. 464). We think the defendant’s reading of the ordinance is too narrow for acceptance. The conclusion becomes the clearer when we read subdivision 2 in the fight of the other subdivisions of the same section, subdivisions 1 and 3. Subdivision 1 is to the effect that all exits from floor areas accommodating more than fifty persons shall be plainly marked by approved exit signs and red lights.” Clearly there is here a duty of continuing obligation, and not one finally discharged at the moment of construction. Subdivision 3 has the caption exits to be kept clear,” which is followed by the direction that no doorway, hallway, passageway, stairs, or other means of exit, required by this article, shall be obstructed or reduced, except as to hand-rails, beyond its required width in any manner whatsoever.” Clearly, once more, the obligation is continuing. We are satisfied that subdivision 2 shares the quality of the other subdivisions with which it is associated. The building is to be safe, not only at its opening, but afterwards. The mandate is not confined to the process of construction; it is directed also to the use.

What we hold is not inconsistent with Stacy v. Shapiro (212 App. Div. 723), where the building was a tenement. Article 8 of the Building Code is without application to tenement houses, factories, theatres or private residences (Building Code, § 151). Artificial lights in tenement houses are subject to a special rule (Tenement House Law, § 76; Cons. Laws, ch. Gl).

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.

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

Judgments reversed, tic.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    Victory Electrical Supply Co., Inc., Respondent, v. F. A. D. Andrea, Inc., Appellant.
    (Argued April 1, 1930;
    decided May 6, 1930.)

      George W. Tucker and Charles E. Francis for appellant.

      Ralph A. McClelland and Charles F. Murphy for respondent.
    The first cause of action was sustained by the evidence both as to the contract alleged and the damages sustained, presenting a question of fact for the jury. (Adams v. Fitzpatrick, 125 N. Y. 124; Brown v. Actors’ Fund, 103 Misc. Rep. 578; 190 App. Div. 908; Stevens v. Amsink, 149 App. Div. 220; Buffalo & N. Y. City R. R. Co. v. Dudley, 14 N. Y. 336; Underwood v. New Netherland Bank, 150 N. Y. Supp. 487; New York Law of Contracts, vol. 2, pp. 1279, 1604; Jones v. City of New York, 57 App. Div. 403; Breed v. Rosedale Terrace Co., 216 N. Y. 246; Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205; Dickinson v. Hart, 142 N. Y. 183; Greenwald v. Gotham Silk Hosiery Co., 126 Misc. Rep. 299; Hogan v. Rosenthal, 127 App. Div. 312; Candia & Co. v. Rubin, 209 App. Div. 357.) The order of June 28, 1926, in conjunction with the contract of August 13, 1923, and the continued similar business of the parties was sufficient proof of the fourth cause of action. (Hogan v. Rosenthal, 127 App. Div. 312; Candia & Co. v. Rubin, 209 App. Div. 357.)
   Crane, J.

The plaintiff has recovered judgment on two causes of action, both of which are for breach of contract to deliver goods.

The defendant is a manufacturer of radio receiving sets and allied products, known to the trade as FAD A.” The plaintiff was a wholesaler, and one of the several authorized distributors of the defendant’s radio products in the metropolitan district. The distributor could not sell to any retailer, but was confined to those who were licensed by the defendant to purchase and to handle its product. The distributors, however, work up this market among the retailers and procure licenses for them as well as orders for the merchandise. A two-year written contract was made April 13, 1923, between the plaintiff and the defendant for the purchase and distribution to these licensed retailers of FADA radios and parts. Business was carried on apparently with satisfaction and success after the expiration of the written contract, but under the same arrangements and conditions until June 1, 1926, when a new contract, partly oral and partly written, was made for one year, or up to May 30, 1927. The terms and conditions of the 1923 contract, as slightly modified, were adopted as the contract for 1926-1927.

On July 20, 1926, the defendant notified the plaintiff that it no longer could permit it to continue as one of the distributors of its products, terminated the relationship and broke its contract.

The plaintiff then brought suit, alleging in the first cause of action the facts, as herein stated, and demanding damages. This first 'cause of action is broad enough in its allegations to cover any and all damage arising out of the breach. The plaintiff alleges in the eleventh paragraph of the complaint that it had secured and had placed with the defendant many orders for FAD A products. The evidence under the first cause of action showed that the plaintiff had secured franchise applications from fifty-nine dealers and had obtained orders for FADA merchandise of the cost price of $23,976, and the sales price to retail dealers of $31,968. On this cause of action the jury awarded the plaintiff a verdict of $7,500. In our judgment the evidence as to the making of the contract of June 1, 1926, was sufficient to create a question of fact which this court cannot review. The recovery on the first cause of action must be affirmed.

The fourth cause of action requires further analysis. Although the plaintiff under the first cause of action could have recovered, as heretofore stated, all of its damage arising out of the breach of the contract, it apparently confined the proof to the profits on such orders as it had obtained from licensed customers. There was nothing to prevent the plaintiff from proving under this cause of action the damages arising from orders which it had placed with the defendant, although the plaintiff had not as yet sold the goods to retailers. The defendant was liable to the plaintiff for the profits on all orders under the contract which it had accepted and had subsequently refused to fill. This is the usual and customary way of proving damage in a contract case. The damage covers not only the loss of profits on undelivered goods which the purchaser has resold, but also the loss of profits on goods which the defendant has agreed to deliver, and which the purchaser can dispose of in the market.

The fourth cause of action, however, deals with a single order, so called, given the 28th day of June, 1926, for products to be manufactured during the coming months, according to new models, amounting to cost price to the plaintiff of $29,439.90, dealers’ price $39,247.20. The defendant never acknowledged this as an order, and claims that it was a mere estimate obtained from its distributors as a guide for its factory in the manufacturing of its radios, the purpose being to obtain some measure for the output of the factory. An examination of the evidence leads us to conclude that in this the defendant is correct, and that the plaintiff has failed to offer evidence sufficient to raise a question of fact.

On examination before trial, Charles M. Sherwood, the sales manager for the metropolitan district, New York, testified regarding this alleged order: “ I told them, as I tell all distributors, at the opening of a season, to try and anticipate their requirements over a specified period, or unspecified as the case might be, and place an order with the house entirely on quantities, which they could use, which are subject to revision or cancellation and so forth, and so on, if the season progressing shows that those particular items or some items are not moving as we expect they might. * * * The F. A. D. Andrea Company were just preparing to go into a schedule of manufacturing. We had no models out, as I remember; we only had pictures and general conversation as to what the line was to be. Anticipating what the factory could produce in a stated period of time, we went to the distributors, to try and anticipate what they thought they would need to complete their dealers’ orders over a like period. It was not any immediate proposition; it was all future stuff.”

At the trial, Sherwood testified: It would' be necessary to try to anticipate what the general requirements might be covering a period of notice enough simply to get the factory in production.” As to the order or estimate given by the plaintiff'in response to his request, he says that it was an estimate on the part of the plaintiff as to what they might be able to do in the next several months.

This order, or estimate, is dated June 28, 1926, and has the form of an order, except that there is no shipping date. Addressed to the defendant, it begins by saying, Kindly Deliver by our Truck. Shipping Date (Blank).” The number and kind of items of merchandise thereafter follow together with the words, We reserve the right to cancel all or any part of this order if goods are not delivered on specified date. Mail invoice at once covering this order.”

No invoice was ever sent to the plaintiff, and no goods under this so-called order were demanded, and no shipping dates or directions given. The items therein referred to were not in existence; they were to be manufactured later. The amount called for is significant, the cost to the dealer being $29,439.60, and the dealer’s price $39,247.30. The total amount of merchandise purchased by the plaintiff from the defendant in the years commencing July 28, 1925, to July 28, 1927, was cost price, $87,346.53. This one order, therefore, was for about one-third the amount of sales for two years, exclusive of orders for goods on hand. Customarily, the orders had been given monthly, and the amount varied up to as high as $2,000 in the dull season, and higher at other times. Never, however, had any monthly order or any previous order reached such a high figure as approximately $30,000.

With this background to give color and meaning to the business expressions of these business men, we turn to the testimony of John H. 'Avazian, president of the plaintiff, manager and principal stockholder. He testifies regarding this conversation with Sherwood: Q. Is it not a fact that you handed this Exhibit (being the above alleged order) which you have just had in your hand to Mr. Sherwood in response to his request for some kind of an estimate as to what you thought the plaintiff might be able to do in the way of doing business for a period of several months from that time? A. At bis request, yes.

Q. There never has been a time between August 13, 1923, when the plaintiff and the defendant first started to do business together, that an order was placed by the plaintiff with the defendant for anything like the amount of merchandise listed on the Exhibit (order in question) at one time? A. At one time, no.”

We appreciate that it is impossible to deal with a question of evidence in an opinion without leaving it somewhat fragmentary and unsatisfactory. We can only quote enough to give reasons for our decision, and yet not omit anything which would point in the opposite direction, removing the question from our jurisdiction. We are confined to the question, Does the evidence raise an issue of fact? If there be a substantial dispute on the evidence, we are foreclosed by the Constitution from reviewing the merits of the dispute. Every case is not as simple as the plain “ yea ” upon the one side, and the nay ” upon the other. Conversations, letters, documents, lead to scrutiny and examination and to fair judgment of their meaning. Men differ in their opinions, as is apparent from the disagreement among the judges in some cases. After careful review, however, of the evidence in this case, the extracts which we have given above lead us to the conclusion that the so-called order of June 28, 1926, was intended as a mere estimate, and not as an order; that it was not given as a direct binding order for goods under the contract, and was not received and understood as such by the defendant. The evidence of the plaintiff’s president, and the action of the plaintiff thereafter, together with the extraordinary amount of goods specified, indicate this to be so.

We, therefore, are of the opinion that the plaintiff failed to make out a case as to the fourth cause of action. It should have been dismissed.

One judgment was entered for the recovery upon the two causes of action in the sum of $15,000. The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulates in writing within thirty days to reduce the amount of the judgment by $7,500, in which case the judgment as so modified should be affirmed, without costs in the Appellate Division or in this court.

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

Judgment accordingly.


author: Caedozo, Ch. J.

text:
    Alf Holding Corporation, Respondent, v. American Stove Company, Appellant.

      (Argued March 27, 1930;
    decided May 6, 1930.)

      Margaret M. Wardell and William W. Robison for appellant.
    The trial court erred in holding that the gas ranges were fixtures within the provisions of section 67 of the Personal Property Law and that because the conditional sale contract was not filed under the provisions of that section before they were affixed to the realty, it was void as to the plaintiff. (Madfes v. Beverly Development Corp., 251 N. Y. 12; Cohen v. 1165 Fulton Avenue Corp., 251 N. Y. 24.)

      Joseph P. Tolins and I. Ilenry Kutz for respondent.
    The plaintiff is a purchaser from a buyer under a conditional bill of sale without notice of the conditional nature of the buyer’s title and before the filing of the conditional sale agreement by the conditional seller in accordance with the statute, and, therefore, has obtained good title as against the conditional seller. (Madfes v. Beverly Development Corp., 251 N. Y. 12; Cohen v. 1165 Fulton Avenue Corp., 251 N. Y. 24; Lloyd’s First Mortgage Corp. v. Lombard, 227 App. Div. 400.)
   Caedozo, Ch. J.

Plaintiff, the owner of an apartment house, brings this action for an injunction to restrain the removal of eighty-three gas ranges installed in the apartments under contracts of conditional sale.

Gas ranges are not fixtures within section 67 of the Personal Property Law (Cons. Laws, ch. 41). As to this any doubt there once was has been removed by decisions recently announced (Madfes v. Beverly Dev. Corp., 251 N. Y. 12, and Cohen v. 1165 Fulton Ave. Corp., 251 N. Y. 24). Not being fixtures, they do not come into the plaintiffs ownership as an incident annexed by law to ownership of the land. To overcome the title of the conditional vendor, the plaintiff must be able to build its title to the ranges upon a basis more secure than the doctrine of accession. It must show itself a purchaser of the chattels from the conditional vendee by a title independent of title to the land. If such a,purchase has been made, the reservation of ownership will not aid the conditional vendor unless the contract has been filed in accordance with the statute (Cohen v. 1165 Fulton Ave. Corp., supra; Pers. Prop. Law, § 65).

We think a purchase of the chattels, apart from title to the building, is a reasonable, if not a necessary, inference from the evidence before us. The plaintiff had a contract with the conditional vendee whereby the latter was to complete the building then partially constructed, and finish it “ in a fashion similar to buildings of the same type in said location.” There is no denial that fulfillment of that covenant made it necessary to supply the building with ranges and like fittings, without which apartments of that order would be unsuitable for tenants. In return for these improvements, the plaintiff was to make payments to the builder in installments, and at the end to deliver a conveyance to be secured by a mortgage in the form in use by the Title Guarantee and Trust Company. On December 18, 1926, all the advances had been made except $5,000. The plaintiff’s representative then visited the building, and found the gas ranges delivered and most of them installed. So at least it seemed to him, though in fact a few of the ranges were delivered a week later. Satisfied through this inspection that the promised improvements were substantially complete, he made out a' check to the builder for $4,350, having reduced the promised payment of $5,000 by $650, the value of fighting fixtures discovered to be missing. This deduction in itself is convincing evidence that the payments were not limited to fixtures in the proper sense, but were understood to include chattels commonly attached to buildings of that order. There are other signs of that intention to be gathered from the wording of the contract, but it is needless to enlarge upon them. The builder became bankrupt December 31, 1926. The contract of conditional sale was filed for the first time on January 3, 1927. The plaintiff before the fifing had become the purchaser of the chattels without notice of any provision reserving title to another (Pers. Prop. Law, § 65).

The judgment should be affirmed with costs.

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

Judgment affirmed.


author: Per Curiam.

text:
    Hattie V. Kessler, Respondent, v. The Ansonia, Appellant.
    (Argued April 2, 1930;
    decided May 6, 1930.)

      Robert J. Sykes, Paul Bonynge and Daniel A. Dorsey for appellant.
    There is no evidence tending to establish either negligence or breach of duty on the part of the defendant. (Cohen v. Cotheal, 156 App. Div. 784; 215 N. Y. 659; Stackpole v. Wray, 74 App. Div. 310; Idel v. Mitchell, 158 N. Y. 134.) In the absence of proof of affirmative negligence, the lease exempts the defendant from liability for the alleged damages. (Lewis Co. v. Metropolitan Realty Co., 112 App. Div. 385; 189 N. Y. 534; Pratt, Hurst & Co., Ltd., v. Tailer, 114 App. Div. 574; 186 N. Y. 417; Lowy & Feffer, Inc., v. Mor-ro Realty Corp., 223 App. Div. 621; Rothberg Co. v. Landeker, 140 N. Y. Supp. 1025; Hirsch v. Radt, 228 N. Y. 100; Cohen v. Cotheal, 156 App. Div. 784; Employers’ Liability Assur. Corp., Ltd., v. Wagner, 220 App. Div. 123; Kramer v. Stone, 176 App. Div. 549.)

      Emanuel Sustick for respondent.
    The proof is adequate that the defendant was guilty of affirmative negligence and of a failure to remedy defects when called to its attention. (Lipp v. Otis Bros. & Co., 28 App. Div. 228; 161 N. Y. 559; Rothberg Co. v. Landeker, 140 N. Y. Supp. 1025.)
   Per Curiam.

The plaintiff, under a written lease, occupied an apartment in a building owned by the defendant. In a living room of the apartment she had stored valuable furniture, paintings and rugs. The room was isolated from the remainder of the apartment by doors which were at all times closed. On a certain morning, a pipe, supplying steam to a radiator in the living room, burst, with the result that steam, escaping in great volume, did serious damage to the personal property stored. In the absence of any explanation, it was the reasonable inference, arising from the explosion, without further proof, that the steam pipe was defective, and, therefore, that the defendant was negligent. A repairman, sent to the apartment by the management, reported to the plaintiff that he could do nothing ‘‘ as the pipes are old and rusty.” Nothing was done, although the defendant had been given timely warning and knew of the defective piping.' Therefore, the clause of the lease exempting the defendant from liability for damage caused by the leakage of steam did not apply. That clause means simply “ that the landlord is not to be liable for damages caused by wear and tear, or inherent defects, or the action of the elements, although by the exercise of active vigilance he might have prevented such damages; but it does not exempt him from his liability to repair actual defects, when called to his attention, or from acts of affirmative negligence.” (Per Mr. Justice Lehman in Drescher Rothberg Co. v. Landeker, 140 N. Y. Supp. 1025.)

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Cardozo, Ch. J.

text:
    Manhattan Taxi Service Corporation, Respondent, v. Checker Cab Manufacturing Corporation et al., Appellants.

      (Argued April 2, 1930;
    decided May 6, 1930.)

      Samuel H. Kaufman and Sylvester Pindyck for Checker Cab Manufacturing Corporation, appellant.
    The plaintiff has no cause of action under section 80-e of the Personal Property Law against the defendant Checker Cab Manufacturing Corporation. (Rapp v. Mabbett Motor Car, Inc., 201 App. Div. 283; Lynn Morris Plan v. Gordon,

      146 N. E. Rep. 685; Commercial Credit Co. v. Neel, 107 So. Rep. 639; Commercial Credit Co. v. National Credit Co., 255 Pac. Rep. 104; Commercial Credit Co. v. Coover, 129 Atl. Rep. 187; Koch v. Fox, 71 App. Div. 288.)

      Emanuel J. Freiberg and Henry C. Burnstine for Hugo Hoffman Credit Corporation, appellant.
    The sale was a sale at public auction. (Ackerman v. Rubens, 167 N. Y. 405; Earle v. Gorham Mfg. Co., 2 App. Div. 460; Tinkom v. Purdy, 5 Johns. 345; National Bank v. Sprague, 20 N. J. Eq. 159; Stief v. Hart, 1 N. Y. 20; Shimer v. Mosher, 39 Hun, 153; Sherman v. Slayback, 58 Hun, 255; Harrison v. Hall, 239 N. Y. 51; Barrett Mfg. Co. v. Van Ronk, 229 N. Y. 90; Coe v. Cassidy, 72 N. Y. 133; Holliday v. McGraw, 106 Misc. Rep. 661.)

      Nathan Kelmenson for respondent.
    The alleged public auction should be declared void as a matter of law on the ground that the property was not within the view of the bidders. (Civ. Prac. Act, § 706; Stief v. Hart, 1 N. Y. 20; Strickland v. Hare & Chase, 217 App. Div. 196; Stonebridge v. Perkins, 141 N. Y. 1; Welch v. Woodruff, 20 N. Y. St. Repr. 840; Sherman v. Slayback, 58 Hun, 255; Warring v. Loomis, 4 Barb. 484; Sheldon v. Soper, 14 Johns. 352.)
   Cardozo, Ch. J.

Plaintiff bought from the defendant the Checker Cab Manufacturing Corporation, fourteen taxicabs under contracts of conditional sale, the price to be paid in monthly installments, secured by promissory notes. These promissory notes the conditional vendor sold to the defendant the Hugo Hoffman Credit Corporation, adding its own indorsement. At the same time it assigned the bills of sale, and guaranteed payment in accordance with the contracts. The plaintiff, the buyer, paid more than fifty per cent of the purchase price of the cabs, and thereafter made default. The Credit Corporation gave notice of this default to the Checker Corporation, which paid the overdue installments according to its guaranty. Thereupon the Checker Company retook possession of the cabs for the buyer’s breach of the condition. The seizure was .followed by a resale in the name of the Credit Corporation, the owner of the notes. A notice of such sale, signed by the Credit Corporation, was published in a newspaper, posted at public places, and mailed to the buyer at its last known place of business. The notice was to the effect that the fourteen cabs, with forty-four others, would be sold at public auction at a stated date at room 805, No. 1767 Broadway, in the borough of Manhattan, city of New York, the office of the signer. The sale was held at the appointed time. The cabs were not present, within the view of those attending. They were miles away, at a garage in Long Island City. There was nothing in the public notice whereby expectant bidders were informed of their location or given an opportunity to inspect them. The fifty-eight cars, i. e., the fourteen bought by the plaintiff and forty-four others, were offered in a single lot. No one was present at the sale except an officer of the Credit Corporation, who bid $500 for each cab and bought them at that price. A large deficiency resulted.

Section 79 of the Personal Property Law (Cons. Laws, ch. 41) makes a resale compulsory whenever a conditional seller has retaken possession of his goods, and the buyer at the time of the retaking has paid at least half the purchase price. The sale must be within thirty days and must be one at public auction. Section 80-e provides that in the event of the failure of the seller to resell the goods retaken in compliance with section 79, “ the buyer may recover from the seller his actual damages, if any, and in no event less than one fourth of the sum of all payments which have been made under the contract, with interest.”

The plaintiff sues under the statute for one-fourth of the payments made pursuant to the contract. At the trial the defendants had a verdict. The Appellate Division reversed upon the law and granted a new trial, the basis of the reversal being this, that the resale conducted as described was not a sale at public auction within the meaning of the statute.

We think plainly it was not. The general rule is that upon a sale of personal property at public auction, the property must be at hand and within the view of those attending (Stief v. Hart, 1 N. Y. 20, 25; Sheldon v. Soper, 14 Johns. 352; Strickland v. Hare & Chase, Inc., 217 App. Div. 196; Shimer v. Mosher, 39 Hun, 153,155; Sherman v. Slayback, 58 Hun, 255; Warring v. Loomis, 4 Barb. 484). The statute makes express direction to that effect when there is a sale upon execution (Civ. Prac. Act, § 706; Code Civ. Proc. § 1428; 2 R. S. [1st ed.] p. 367, § 23 ;Stonebridge v. Perkins, 141 N. Y. 1, 5). We do not mean to say that in respect of other sales the requirement of view and presence is so absolute as to admit of no exception. The need for some exceptions and their range must depend upon considerations of policy and fairness that cannot be formulated with precision in advance of the event. At times the thing to be sold may be too bulky to be brought within the view of bidders, as, for example, upon a sale of a ship (Ackerman v. Rubens, 167 N. Y. 405), or the rolling stock of a railroad. At times inspection may be useless, as upon a sale of bonds or shares of stock. Always, however, the sale must be so made as to be consistent with the fundamental purpose of an offering at public auction. This means that whenever for some special reason the chattel to be sold is not to be present in. the auction room and its nature is such that inspection by a bidder can have any possible utility, the notice of sale must state the place where the chattel is located, and give opportunity to view it. Nothing of the kind was done in auctioning these cabs. In the office of a credit corporation, on an upper floor of an office building, fifty-eight vehicles, including the fourteen in controversy, were offered for sale without statement, either then or in advance, of the make or condition, or the time or place for view. Such a sale is a public auction in name, and in name only. It is of the essence of an auction that there shall be full and free opportunity for competition among bidders. So true is this that any agreement unfairly restrictive of that opportunity is against public policy and void (Hopkins v. Ensign, 122 N. Y. 144, 150). It is idle to look for bids unless the bidders know what they are buying. The only bidder at this sale, indeed the only person present, was the conditional vendor in whose behalf the sale was made. There would be cause for surprise in view of the form of the notice, if there had been a bid by any one else.

We think the plaintiff was at liberty to ignore a performance so farcical and futile, and recover a quarter of its payments, with interest, as if no sale had been attempted. The judgment is erroneous, however, in imposing liability not only on the Credit Corporation, but on the Checker Company as well. By section 61 of the statute, “ ‘ seller ’ means the person who sells or leases the goods covered by the conditional sale, or any legal successor in interest of such person.” When the Checker Company sold and assigned to the Credit Corporation the bills of sale and notes, the latter corporation became the legal successor in interest,” and thereafter was the seller ” within the meaning of the statute. On this seller devolved the statutory duty to resell at public auction, and in default of such resale to return the statutory proportion of payments theretofore received. The fact is unimportant that in the retaking of the cabs the Checker Company co-operated with the Credit Corporation, or even acted on its own initiative. No doubt its guaranty of payment supplied it with an interest in regaining the chattels conditionally sold and thus diminishing its loss. The interest did not avail to revest it with its title as conditional vendor, which it had already assigned to another upon the transfer of the notes (Rapp v. Mabbett Motor Car Co., Inc., 201 App. Div. 283; Lynn Morris Plan Co. v. Gordon, 251 Mass. 323). It was then without greater rights than any “ stranger to the transaction ” (Lynn Morris Plan Co. v. Gordon, supra). A different question would be here if the assignment had been found, upon the basis of sufficient evidence, to-be a coyer or a sham. Of this there was neither proof nor claim. On the contrary, the plaintiff, far from impeacliing the assignment, stated it in the complaint, and counts upon it even now as charging the assignee with the duties of an owner. For like reasons we are not concerned with considerations that might be pertinent if the plaintiff were complaining of a tortious interference with ownership or possession. The cause of action is not one for conversion, on the theory of an officious retaking by a seller who has parted with his title. The cause of action assumes the legality of the taking, and charges the omission of a statutory duty in failing to resell thereafter. The liability must be confined to that defendant on whom the duty is imposed.

As to the defendant Hugo Hoffman Credit Corporation, the order of the Appellate Division should be affirmed, and judgment absolute ordered against said appellant upon the stipulation, with costs in all courts.

As to the defendant Checker Cab Manufacturing Corporation, the order of the Appellate Division should be reversed, and the judgment of the Trial Term affirmed, with costs in the Appellate Division and in this court.

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

Ordered accordingly.


text:
    Rose Cherubino, as Committee of the Estate of Frank Cherubino, Respondent, v. James Meenan et al., Appellants.
    (Argued April 8, 1930;
    decided May 6, 1930.)

      Joseph F. Hanley and Leo M. Brimmer for appellants.
    The trial court erred by admitting in evidence a traffic regulation of the Pohce Commissioner of the city of New York, which was invalid because the Pohce Commissioner had no power to change by pohce regulation the common law as to the right of way between pedestrians and vehicles by giving pedestrians the right of way at street crossings. (Castro v. New York Rys. Corp., 224 App. Div. 623; Baker v. Close, 204 N. Y. 92.)

      James A. Cray and William S. Butler for respondent.
    The Legislature may require that the Pohce Commissioner shall make such rules and regulations for the conduct of vehicular traffic in the use of the pubhc streets, squares and avenues as he may deem necessary. (People ex rel. Devery v. Coler, 173 N. Y. 103; Castro v. New York Rys. Corp., 224 App. Div. 623; People ex rel. Cavanagh v. Waldo, 205 N. Y. 589; Wormser v. Brown, 149 N. Y. 163; People ex rel. Leiberman v. Van DeCarr, 175 N. Y. 440; 199 U. S. 552; McCutcheon v. Terminal Station Comm., 217 N. Y. 127; Matter of Manuel v. Board of Regents, 250 N. Y. 173.)
   Crane, J.

The ruhng made on the trial of this case brings up for review the extent of the power of the Pohce Commissioner of the city of New York to make traffic rules and regulations. That the Legislature may confer such power upon municipal authorities is well established (Dillon, Municipal Corporations [5th ed.], vol. 2, § 574, p. 903); and that this power may be conferred upon a department of a city government, as well as given to its legislative assembly, is also recognized. (People ex rel. Lieberman v. Vandecarr, 175 N. Y. 440; Matter of Mandell v. Bd. of Regents, 250 N. Y. 173; Wormser v. Brown, 149 N. Y. 163; People ex rel. Cavanagh v. Waldo, 72 Misc. Rep. 416; 149 App. Div. 927; 205 N. Y. 589; People v. New York Edison Co., 159 App. Div. 786; People ex rel. Cox v. Special Sessions, 7 Hun, 214.)

The charter of the city of New York, therefore, must determine for us the nature and extent of the Commissioner's authority over the streets.

By section 315, the police department is empowered to “ regulate, direct, control, restrict and direct the movement of all teams, horses, carts, wagons, automobiles and all other vehicles in streets, bridges, squares, parks and public places, for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health, and to that end the police commissioner shall make such rules and regulations for the conduct of vehicular traffic in the use of the public streets, squares and avenues as he may deem necessary, the violation of which rules and regulations shall be a misdemeanor punishable by not less than two or more than thirty days’ imprisonment, or by a fine of not less than five or more than fifty dollars, or both.”

Similar power is conferred by section 43 upon the Board of Aldermen, subject to a like power over the streets and highways, given by section 242 to the Board of Estimate and Apportionment. These three departments of the city government must naturally work in harmony, the lowest in the grade being the Police Commissioner, who can make no rules and regulations inconsistent with the action of the other two, or with any statute of the State.

Acting under section 315, the Police Commissioner made a regulation which is referred to as subdivision b, article II, section 6, Traffic Regulations, reading as follows: “ Pedestrians, where no Police Officer is present and no traffic light control system is in operation, shall have the right of way on crossings and vehicles must slow down and stop, if necessary, to permit pedestrians on crossings to pass.”

In Baker v. Close (204 N. Y. 92) this court said that the right of passage is common to all, and both footmen and drivers are bound to exercise reasonable care for their own safety and the safety of others upon the street. * * * At * * * street crossings both pedestrians and drivers are required to exercise that degree of prudence and care which the conditions demand. It is impossible to formulate any more precise definition of these relative rights and duties.” To what extent this police regulation has modified this law, or whether it has modified it at all, is difficult to determine. (Metzger v. Cushman’s Sons, Inc., 243 N. Y. 118.) At common law it was equally the duty of an approaching automobilist to slow down and stop, if necessary, to permit pedestrians on crossings to pass. The court seldom, if ever, charged the jury in these words, rather leaving it to twelve men to say whether in the exercise of reasonable care, the vehicle should have slowed down and stopped under all the circumstances of the case. Every crossing accident differs; speed, surroundings, relative distance from the meeting point, all play an important part in determining reasonable care, and, as stated in the Baker case, the best the law can do is to say to each party that in crossing he must use reasonable care to look out for those exercising a like right. Any interpretation of this traffic regulation which would require all vehicles to slow down or stop every time a person was on any part of a street crossing would jam traffic and be unreasonable.

There is a feeling, however, that this regulation has varied the common-law rule and made the duty more onerous for the vehicle driver. No doubt this was the intention of the Police Commissioner. Counsel in this case have assumed that the regulation required an automobilist to give way, slow up or stop whenever a pedestrian was crossing on a crosswalk, if necessary to enable him to get across the street; in other words, that the foot passenger has the right of way. Upon the trial of this case, which grew out of a crossing accident, the plaintiff introduced the regulation, and the judge charged the jury that proof of the violation was some evidence of negligence.

Assuming, therefore, that this rule has relaxed the care which the pedestrian must take, and increases the responsibility of the motorist, we come to the question whether the Commissioner had the power under section 315 of the charter to make any such rule. The control of traffic by policemen, signal lights, signs, direction posts and safety zones are familiar to us all, and have as a rule been wisely and efficiently enforced throughout the cities of this State. Necessity has called for such action upon the part of the police authorities, and such power is to be found in most of the city charters. Highway commissioners have similar control outside of the municipalities. Most of these devices notify the driver and the pedestrian on the spot what to do and where to go. In one instance, the policeman raises his hand — physical evidence of the power of the law. Where the policeman is not stationed, there is the red and green light, or the sign post, or disk, indicating one-way traffic, or the direction to be taken. In the absence of any of these instrumentalities to show the public what the law requires, can the Police Commissioner adopt a rule having the force of an ordinance? The Legislature may confer such power upon the Police Commissioner, provided the rule is reasonable, the same as it has done in conferring like power upon the health -department, building department or the Board of Aider-men. (See above cited cases.) It may delegate its inherent power over these local matters to that instrumentality in the city government which it considers to be the most efficient and appropriate.

After the language of Mr. Justice Gaynor, at the February, 1905, Special Term, in Peace v. McAdoo (46 Misc. Rep. 295), judicial but not prophetic, and the opinion of the Appellate Division in the same case (110 App. Div. 13), from which two justices dissented, the charter of the city, section 315, was amended, giving the Police Commissioner the right to make rules and regulations (Laws of 1905, ch. 621, to take effect May 26, 1905; again amended by Laws of 1914, ch. 455). Such rules do not apply to the government of the force, as these are covered by section 300 of the charter, and a violation of the rules under section 315 is made a misdemeanor. Violation of a departmental regulation would result in discipline or dismissal of the officer, not in fine or imprisonment, as stated in section 315.

This rule in question was, therefore, within the powers conferred upon the Police Commissioner. It is not unreasonable if rightly interpreted and applied; neither is it such a radical change in a common-law right as to require an act of the Legislature and not an ordinance. (Thousand Island Park Assn. v. Tucker, 173 N. Y. 203, at p. 210; Town of Fulton v. Norteman, 60 W. Va. 562; Maryland v. Mott, 61 Md. 297.) It is a regulation for the proper use of the street at highway crossings.

No question is raised as to the making or adoption of this rule by the Commissioner, or of its validity, if within his powers. No specific provision of the charter, which I can find, requires the publication of such rules, although the custom is to publish them once in the City Record the same as other regulations having the effect of ordinances. They are also published for distribution in pamphlet form. In the absence, however, of a statutory or charter provision directing that ordinances be published before they take effect, no publication is necessary. (Dillon, Municipal Corporations [5th ed.], vol. 2, § 603, p. 945.) This point, however, we will reserve for future consideration, should it arise, as counsel in this case only raised objection to the application of the rule to the facts of the case and has not questioned the sufficiency or method of its adoption. No point was made of publication or notice. (

Castro v. New York Railways Corp. (224 App. Div. 623) has not been cited for reference as it is under review in this subsequent litigation.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: O’Brien, J.

text:
    Hamilton Employment Service, Inc., Appellant, v. New York Telephone Company, Respondent.
    (Argued April 8, 1930,
    decided May 6, 1930.)

      E. Crosby Kindleberger for appellant.
    The furnishing by a telephone company of correct directories of its subscribers is an important part of its service, and errors and omissions which injuriously affect its subscribers entitle them to recover damages from the telephone company.
      (Masterson v. Chesapeake & Potomac Tel. Co., 299 Fed. Rep. 890; Jones on Telegraph & Telephone Companies, § 256; Baldwin v. Chesapeake & Potomac Tel. Co., 156 Md. 552; Schwanke, Inc., v. Wisconsin Tel. Co., 227 N. W. Rep. 30; Webster v. Nebraska Tel. Co., 17 Neb. 126; California Fireproof Storage Co. v. Brundige, 248 Pac. Rep. 669.) The defendant telephone company not affording its subscribers a choice of rates is not entitled to escape liability for its negligence by regulations or contract. (Kilthan v. International Mercantile Marine Co., 245 N. Y. 361; Union Pacific Co. v. Burke, 255 U. S. 317; Lawrence L. Co. v. Compagnie Generale Transatlanticque, 18 Fed. Rep. [2d] 930; Transmarine Corp. v. Levitt & Co., 25 Fed. Rep. [2d] 275; The Merauke, 31 Fed. Rep. [2d] 974; Philippine Ref. Corp. v. U. S., 33 Fed. Rep. [2d] 974; Straus & Co., Inc., v. Canadian Pac. Realty Co., 227 App. Div. 316; Adams Express Co. v. Croninger, 226 U. S. 491; Southern Express Co. v. Byers, 240 U. S. 612; Weld v. Postal Tel. Cable Co., 199 N. Y. 88; Kerr Steamship Co. v. Radio Corp., 245 N. Y. 284; Western Union Tel. Co. v. Esteve Bros. & Co., 256 U. S. 566; Western Union Tel. Co. v. Czizek, 264 U. S. 281; Western Union Tel. Co. v. Priester, 276 U. S. 252.) The regulation of the telephone company is unreasonable and unconstitutional. (People ex rel. Delaware & Hudson R. R. Co. v. Stevens, 197 N. Y. 1; Matter of New York City Elec. Corp. v. Public Service Comm., 227 App. Div. 18; Avent v. United States, 266 U. S. 137; Missouri v. Public Service Comm., 262 U. S. 276.)

      Irving W. Young, Jr., N. H. Eglesion, Edward F. Snydstrup and Charles T. Russell for respondent.
    The terms and conditions of the service contract and respondent’s rules and regulations are binding on the appellant if they are reasonable, and having been duly filed with the Public Service Commission they are presumed to be reasonable until the Commission determines to the contrary. (Kerr Steamship Co. v. Radio Corp., 245 N. Y. 284; Primrose v. Western Union Tel. Co., 154 U. S. 1; Weld v. Postal Tel. Cable Co., 199 N. Y. 88; Mitchell Coal Co. v. Pennsylvania R. R. Co., 230 U. S. 247; Morrisdale Coal Co. v. Pennsylvania R. R. Co., 230 U. S. 304; Metzger v. N. Y. State Rys., 168 App. Div. 187; Loomis v. Lehigh Valley R. R. Co., 208 N. Y. 312; Murray v. New York Tel. Co., 170 App. Div. 17; 226 N. Y. 590; Postal Tel. Co. v. Warren, 251 U. S. 27; Gardner v. Western Union Tel. Co., 231 Fed. Rep. 405; 243 U. S. 644; Czizek v. Western Union Tel. Co., 272 Fed. Rep. 223; 264 U. S. 281.)
   O’Brien, J.

For several years plaintiff was a subscriber to defendant’s telephone service in New York city. It occupied a main office in Church street and a branch in Madison avenue with separate numbers assigned to it by the telephone company. During those years plaintiff’s numbers appeared correctly listed in defendant’s directory. In the volume issued for December, 1928, the number for its main office was omitted and the one for the branch office incorrectly listed. The mistakes do not appear other than unintentional. As a result of these omitted and incorrect listings, plaintiff expended moneys in advertising in newspapers, issuing circulars and employing solicitors in order to communicate with its customers and it brings this action to recover damages for the breach of contract in failing to publish the correct numbers. In the absence of reasonable contract stipulations limiting liability for omissions and errors, defendant might perhaps be hable for breach of contract. Courts in other jurisdictions have so held or, at least, intimated. (Masterson v. Chesapeake & Potomac Tel. Co., 299 Fed. Rep. 890; Baldwin v. Chesapeake & Potomac Tel. Co., 156 Md. 552; Schwanke v. Wisconsin Tel. Co., 227 N. W. Rep. 130.) Telephone companies are, no more than telegraph companies, insurers, but they are bound to exercise adequate diligence. (Weld v. Postal Telegraph-Cable Co., 199 N. Y. 88.)

As part of the contract of service, appears a condition or regulation as follows: “No liability for damages arising from errors or omission in the making up or printing of its directories shall attach to the company, except in the case of charge listings, in connection with which its liability shall be limited to a refund at the monthly rate for each listing for the time an error or omission continues after reasonable notice in writing to the company.” Unless this condition is reasonable, it is not binding upon plaintiff. The preparation and delivery of a directory is not a primary part of the business of a telephone company. It is wholly subordinate to the main transaction of transmitting messages. A directory may be compared to a railroad time table. Courts do not hold a carrier to the same degree of liability for mistakes in time tables as for negligence in operation of trains. The principle of Weld v. Postal Telegraph-Cable Co. (199 N. Y. 88, 98) seems to support the proposition that the regulation at bar in so far as it does not seek immunity from gross negligence or willful misconduct, is reasonable. While holding that a telegraph company is without power to limit its liability for gross negligence or willful misconduct, this court citing many precedents has gone on record to the effect that those who are not insurers “ have the power to limit their liability in cases where mistakes occur through no fault on their part, or for such mistakes of their employees as will occur through ordinary negligence in spite of the most stringent regulations or the most vigilant general oversight.” The complaint before us alleges negligence without characterizing it as gross or stating facts from which gross negligence could be inferred. Perhaps the reason for defendant’s errors will never be known. Certainly, in the absence of an allegation of gross negligence or willful misconduct, nothing worse will be inferred than ordinary negligence such as some unaccountable mistake by an employee who could not be entirely controlled by any regulation however stringent. In the crowding and rush of preparing a volume containing hundreds of thousands of names and numbers, complete freedom from error is practically impossible. In view of the language of the limiting regulation, the right to make reasonable regulations and the absence of an allegation of gross negligence or willful misconduct, the dismissal of the complaint must be upheld.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    The Irvmor Corporation, Respondent, v. Charles Rodewald, Appellant.
    (Argued April 8, 1930;
    decided May 6, 1930.)

      Frederick W. Ritter and Henry Koch for appellant.
    The instrument in writing upon which the plaintiff relies is void as a contract, note or memorandum because it is not signed at the bottom of such writing and, therefore, is not subscribed as required by the Statute of Frauds. (Real Property Law, § 259; Bisgeier v. Keller, 122 Misc. Rep. 705; James v. Patten, 6 N. Y. 9; Coe v. Tough, 116 N. Y. 273; Herubin v. Malackowsky, 113 Misc. Rep. 100; Leask v. Horton, 39 Misc. Rep. 144; Matter of Griffin, 56 Misc. Rep. 21; Landeker v. Co-operative Building Bank, 71 Misc. Rep. 517.) The writing upon which the plaintiff relies is merely a receipt and was not intended as a contract or a memorandum of a contract. (Belbird Realty Corp. v. Wolfson, 221 App. Div. 67; 248 N. Y. 615.)

      David M. Palley for respondent.
    The memorandum was subscribed at the bottom or end thereof. (Davis v. Shields, 26 Wend. 341; Velie v. Osgood, 8 Barb. 130; James v. Patten, 6 N. Y. 9; Tallman v. Franklin, 14 N. Y. 584; Doughty v. Manhattan Brass Co., 101 N. Y. 646; Wright v. Weeks, 25 N. Y. 153; Peck v. Vandemark, 99 N. Y. 30; Coe v. Tough, 116 N. Y. 273; Marks v. Cowdin, 226 N. Y. 138; Le Long v. Siebrecht, 196 App. Div. 74; Straus & Co. v. Felson, 216 App. Div. 431; Dickson v. Conde, 148 Ind. 279.) The Statute of Frauds does not define or describe the character of the paper in which there shall be set forth a memorandum of the terms of the contract. If a written memorandum containing all the terms of the oral contract exists, then the oral contract may be enforced. (Hagedorn v. Lang, 34 App. Div. 117; Spencer Turner Co. v. Robinson, 55 Misc. Rep. 280; Belbird Realty Corp. v. Wolfson, 221 App. Div. 67.)
   Cardozo, Ch. J.

The complaint is for specific performance; the defense, the Statute of Frauds.

The defendant is the owner of real estate in Astoria, Long Island. He employed Haas, a broker, to find a willing buyer, naming $30,000 as the price. A few days later Haas brought the land to the notice of the plaintiff, and made in its behalf an offer of $25,000, which the defendant said he would accept. A formal contract was to be prepared afterwards at the plaintiff's place of business. In the meantime, the defendant signed his name to the following memorandum:

April 12, 1926.
“ Received from Charles A. Haas twenty five dollars as deposit on property Astoria Avenue, property to be three hundred and seventy six feet frontage on Astoria Avenue and running to a depth of about three hundred feet more or less. Price $25,000, twenty five thousand dollars, payable as follows: $2500 on signing of contract, $9500 on taldng title, and balance first mortgage for five years standing. Contract to be for four months."

After an adjournment of the date of closing, the defendant, finding a better bargain, backed out of his agreement and refused to sign a contract. Judgment for specific performance has been given and affirmed.

We think the memorandum is insufficient to satisfy the statute. For present purposes we assume .that the defendant, the seller, was correctly found to have subscribed the memorandum, at the end (300 West End Ave. Corp. v. Warner, 250 N. Y. 221), though even this is disputed and may not be wholly free from doubt. The assumption does not help the buyer, for the memorandum, even if subscribed, is still lacking in essentials. Nowhere in the writing is there a description of any one who is to assume the obligations of a buyer. Haas is not stated to be the buyer, and was never understood to be one. He was a broker, working for a commission which, indeed, in another action he is trying to collect. He paid the “ deposit " with the idea, no doubt, that he would thereby clinch the bargain. He had no thought that in so doing he was taking upon himself as agent for an unnamed principal the duty of a purchaser. The most that can be said is that the memorandum on its face leaves his relation to the transaction equivocal or doubtful. The doubt, if any, is dispelled when we read what was written in the setting of what was said and done (Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N. Y. 305, 313; N. E. D. Holding Co.,Inc., v. McKinley, 246 N. Y. 40,45). The inference is then inevitable that Haas was not a principal, either actual or apparent, nor subject as between himself and the seller to the obligations of a principal. From beginning to end, he was a broker and no more.

There is a settled rule of law that a note or memorandum of a contract for a sale of land must identify by name or description the parties to the transaction, a seller and a buyer (Mentz v. Newwitter, 122 N. Y. 491; Ward v. Hasbrouck, 169 N. Y. 407; Grafton v. Cummings, 99 U. S. 100; Williston on Sales, vol. 1, §§ 102,105a; American Law Institute, Restatement of the Law of Contracts, § 203). If this is done, the memorandum does not fail of its effect though one who is described as principal or who assumes a principal’s obligation is in truth an agent only. The authority of the agent may be snown by parol, and t ie principal for whom he acts, except indeed in cases where there is a contract under seal, may sue and be sued as if his name had been disclosed (Dykers v. Townsend, 24 N. Y. 57; Langstroth v. Turner Cypress Lumber Co., 162 App. Div. 818; 220 N. Y. 706). Essential it remains, however, that the agent shall bind himself as principal, if the writing does not identify the principal behind him. The memorandum may be adequate though the agent is described as agent “ provided the form of the contract purports to bind him personally ” (Williston on Sales, § 105a, p. 197; Ibid, § 102). So at least we may assume. The memorandum is inadequate where by its terms the principal is not identified, and the agent, though his name is on the paper, is not there as a contracting party (Willis-ton on Sales, supra; Lovesy v. Palmer, L. R. [1916], 2 Ch. 233; McGovern v. Hern, 153 Mass. 308; Mertz v. Hubbard, 75 Kan. 1; Grafton v. Cummings, supra; Mentz v. Newwitter, supra; 23 A. L. R. 932 and cases there cited).

The principles thus summarized are decisive of this case. We must beware of the confusion of thought that is inevitable if we are not careful to distinguish between a purpose to contract and an authority to sign. If Haas in the case at hand had expressed a purpose to contract, had identified himself in the memorandum as a party assuming the obligation of a buyer, there would be little trouble in extending the binding force of his engagement to the principal behind him, known or unknown. The difficulty is, however, that no such purpose was expressed or even at any time conceived. Haas did not describe himself as a buyer in the body of the writing. He did not sign it in any form, either as principal or as agent. A signature; though unnecessary (300 West End Ave. Corp. v. Warner, supra) would have tended to identify him as one of the contracting parties (Dykers v. Townsend, supra). He did not put himself forward in any such relation. There was no moment of time at which that agent was * * * responsible for any contract whatever as his own (Younger, J., in Lovesy v. Palmer, supra, p. 243), Not for a moment was there representation or understanding that his relation to the bargain was other than that of a broker at work for a commission. On the face of the writing there is no agreement with any one (Rodliff v. Dallinger, 141 Mass. 1, 6; Kelly A. B. Co. v. Barber A. P. Co., 211 N. Y. 68, 71). There is nothing more than an offer lanced into the void.

We have dwelt upon the omission to give the name of a vendee. The imperfection is emphasized by others which confirm the impression that something less is here than the note of a perfected bargain. Foremost among these tokens is the provision for a formal contract. The provision is not decisive that there are terms of agreement to be settled in the future (Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209). It is none the less a circumstance pointing in that direction (Brown v. N. Y. C. R. R. Co., 44 N. Y. 79, 86; Ridgway v. Wharton, 6 H. L. Cas. 238). Its significance may become controlling where there is confirmation in surrounding circumstances (Belbird Realty Corp. v. Wolfson, 221 App. Div. 67; 248 N. Y. 615; N. E. D. Holding Co., Inc., v. McKinley, supra). We see no reason to believe that this fragmentary memorandum, prepared by a mere broker and silent as to a vital matter, the identity of the buyer, was a definitive adjustment of all the details of the bargain.

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

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

Judgments reversed, etc.


text:
    Jay T. McCoy, Respondent, v. American Express Company, Appellant, Impleaded with Others.

      (Argued April 9, 1930;
    decided May 6,1930.)

      William L. Wemple for appellant.
    There was no pledge of the property to plaintiff’s assignor because transfer of possession is necessary to create a pledge. (Titusville Iron Co. v. City of N. Y., 207 N. Y. 203.) The goods were in the constructive possession of the agent. Possession of the agent is possession of the principal; the principal has the right to resume possession of her goods, without liability. (Stanton v. Hawley, 193 App. Div. 559; Hale v. Omaha Nat. Bank, 64 N. Y. 550; Husted v. Ingraham, 75 N. Y. 251.)

      Jacob K. Javits and Benjamin A. Javits for respondent.
    The transfer to plaintiff’s assignor of the rugs and carpets gave the latter a sufficient pledge thereof for the amount of his loan. (Markham v. Jandon, 41 N. Y. 235; Schouler on Bailments, p. 198; Greenwood v. Spring, 54 Barb. 375; Duryee v. Lester, 75 N. Y. 442.) The act of the defendant-appellant in delivering the rugs and carpet's amounted to a conversion. (Marine Bank v. Fiske, 71 N. Y. 353; Story on Agency, p. 527; Lawson on Bailments, p. 114; Casey v. Cavaroc, 96 U. S. 467; South & C. A. C. Co. v. Panama R. R. Co., 237 N. Y. 287; Judson on Interstate Commerce, p. 269; American Express Co. v. United States, 212 U. S. 522; Adams Express Co. v. New York, 232 U. S. 14; United States v. Adams Express Co., 229 U. S. 381; Hutchinson on Carriers [3d ed.], § 80; McEntee v. N. J. Steamboat Co., 35 N. Y. 34.)
   Cardozo, Ch. J.

The plaintiff, suing as assignee in the right of one George H. Burr, brings this action to recover damages for the conversion of chattels in contravention of a special property in the subject-matter of a pledge. The existence of a pledge is the hinge on which the controversy turns.

In 1919, Olive Waite, the owner of rugs and other chattels in Paris, delivered to William G. Massarene a power of attorney empowering him to take possession of the chattels, and to sell or otherwise dispose of them in her behalf. The chattels were subject to attachments which it was necessary to discharge. In order to lift the lien, Massarene, upon his arrival in Paris in May, 1919, applied to George H. Burr, plaintiff’s assignor, for a loan of 25,000 francs, offering as security his own note for $5,000, and rugs belonging to his principal. The rugs were in a warehouse, where they had been placed by Mrs. Waite or by some one acting in her behalf. Massarene did not take them out of the warehouse and deliver them to Burr. He did not deliver to Burr any document of title, or any order on the warehouse whereby possession could be acquired. He did no more than promise that the rugs would be held as security for the loan, that in the event of a sale in Paris, he would pay the debt out of the proceeds, and that in default of such a sale he would ship the rugs to the United States in his own name by the American Express Company, and hold them until payment. On the faith of this promise, Burr, having inspected the rugs in the warehouse, made the loan of 25,000 francs, receiving from Massarene the latter’s promissory note for $5,000 payable on demand.

About a fortnight later Massarene caused the rugs to be taken from the warehouse, and shipped them to New York by the defendant, the American Express Company. The bill of lading issued by the defendant described William G. Massarene as the consignor and William G, Massarene, attorney, as the consignee, and directed the goods to be placed in bond upon their arrival at the port. In a consular invoice made out at the same time Massarene, acting as agent, declared that the rugs were part of the household effects of Mrs. Waite and had been used in her Paris residence for a year and upwards, thus making it possible later to have them entered free of duty. They arrived at the port in August, 1919, and since no one appeared to claim them or to make entry at the Customs House, the Collector of Customs placed them in a bonded warehouse, where they remained until May, 1920. At that time Mrs. Waite made oath to the customs officers that the goods were household effects, owned and in use by her or her immediate family for over a year, and they were entered free of duty. At or about the same time she paid to the American Express Company the freight and storage charges, and, claiming ownership of the goods, made demand for a delivery. There was no surrender of a bill of lading, but this was unnecessary, for the only one issued was a “ straight ” bill of lading, and not a bill to order.” The carrier took the risk, however, that the consignee named in the bill, William G. Massarene, attorney (described in the consular invoice as attorney for Mrs. Waite), was not in fact her attorney, but had some independent right or title (Furman v. Union Pacific R. R. Co., 106 N. Y. 579; cf. Personal Property Law, Bills of Lading, §§ 198,199; Cons. Laws, ch. 41). To guard against those or kindred possibilities, the carrier exacted a bond of indemnity, and upon receiving it made delivery in response to the demand. Four years later, this action was begun. The defendants named were three, the express company, Mrs. Waite, and Massarene, but the last named was not summoned. The plaintiff had judgment against the two defendants served. The canier alone appeals.

The action being for conversion, the plaintiff, to prevail, must show that through the act of the carrier in transferring possession of the rugs to the general owner, Mrs. Waite, there was a violation of a possession then held by Burr, the plaintiff’s assignor, or of a right on his part to the present enjoyment of possession (Clements v. Yturria, 81 N. Y. 285, 290; Thompson v. St. Nicholas Nat. Bank, 113 N. Y. 325, 333; Smith v. Smalley, 19 App. Div. 519, 520; Byrne v. Weidenfeld, 113 App. Div. 451, 452). In brief there must be proof that Burr, either personally or by an agent, was the holder of a pledge. It is not enough that he may have been entitled to an equitable lien which by a judgment of a court of equity could be specifically enforced (Walker v. Brown, 165 U. S. 654; Husted v. Ingraham, 75 N. Y. 251, 257). If he had such a lien, it continued to be enforoible after the rugs had been surrendered into the possession of the general owner just as fully as before. To charge the carrier with damages on the basis of a conversion there must be proof of something more. The disseisin, which .is the essence of conversion, is not a wrong against the owner in respect of his ownership. It is an infringement of the right to control or of the right to possession, which is usually an incident of ownership, but not always (Street, Foundations of Legal Liability, vol. 1, p. 250, also pp. 231, 232, 233; Pollock, Torts [13th ed.], pp. 371, 372; 7 Holdsworth, History of the Laws of England, pp. 403, 421, 424, 430). A pledgee sues in trover because possession, actual or constructive, is an accompaniment of a pledge. What is spoken of as his special property is nothing more than his “ possessory right acquired under the bailment ” (Street, supra, pp. 253, 254; Holmes, The Common Law, p. 242). There may be wrongs to property interests without violation of a possessory right; there cannot be that specific form of wrong which is known as conversion.

We are brought back to the question, was Burr the holder of a pledge? The rule is fundamental that there is no pledge without delivery (Casey v. Cavaroc, 96 U. S. 467; Security Warehousing Co. v. Hand, 206 U. S. 415; Buffalo German Ins. Co. v. Third Nat. Bank, 162 N. Y. 163, 170; Third Nat. Bank v. Buffalo German Ins. Co., 193 U. S. 581, 588; Titusville Iron Co. v. City of N. Y., 207 N. Y. 203; Ryttenberg v. Schefer, 131 Fed. Rep. 313, 323; Dublin City Distillery, Ltd., v. Doherty, 1914 A. C. 823, 842, 852). Delivery of possession is a matter of something more than words alone. Possession is not changed by the promise of the owner that he will hold the thing thereafter for the use of the pledgee (Casey v. Cavaroc; Security Warehousing Co. v. Hand; Buffalo German Ins. Co. v. Third Nat. Bank, supra). Indeed, a pledge once accomplished may be lost if the chattel is put back without restriction in the hands of the pledgor, though the result will be different if it is returned for a temporary or special purpose (Hickok v. Cowperthwait, 210 N. Y. 137, 143; North Western Bank, Ltd., v. Poynter, 1895 A. C. 56; Matter of Allester, Ltd., [1922] 2 Ch. 211). On the other hand, distinctions have been drawn between a retention of possession by the owner, the maker of the pledge, and retention by a third person, though an agent for the owner, if he agrees with the owner’s authority or consent that thereafter his possession will be in behalf of the pledgee (Sussman v. Hamlet, 12 Pick. 76; Philadelphia Warehouse Co. v. Winchester, 156 Fed. Rep. 600, 610; Dunn v. Train, 125 Fed. Rep. 221; Bush v. Export Storage Co., 136 Fed. Rep. 918; International Stevedoring Co. v. Waterhouse & Co., 129 Wash. 451; Williams, Personal Property [18th ed.], p. 75; 35 Harv. L. Rev. 318). An agent has custody, but not possession in the proper sense (Holmes, The Common Law, pp. 232, 233; Pollock & Wright on Possession in the Common Law, p. 56). If an agent of a pledgor is agent also for the pledgee, his custody is the possession of the one for whom he holds. We must determine whether within the meaning of these principles there was delivery of possession by Massarene to Burr.

At the making of the loan and while the rugs remained in Paris, Burr had no possession either in person or by an agent. He had not even the promise of possession. He had nothing but a promise of security, a promise that was equivalent between the parties to an equitable hen. The rugs were to be kept in a warehouse in the name of the pledgor where they had been before the loan. There was no promise by the warehouseman to Burr to hold possession for his use. There was no delivery of any order or of any document of title whereby Burr was to be placed in a position to go to the warehouse and exact possession for himself, though even this might have been insufficient without the warehouseman’s assent (Rummell v. Blanchard, 216 N. Y. 348, 353; Selliger v. Kentucky, 213 U. S. 200, 205; Union Trust Co. v. Wilson, 198 U. S. 530, 535, 536; Hallgarten v. Oldham, 135 Mass. 1, 9, 10; Dublin City Distillery, Ltd., v. Doherty, supra, p. 847; Hastings v. Lincoln Trust Co., 115 Wash. 492). The mere assurance by Massarene that the rugs, though left in the warehouse in the name of the pledgor, would, if taken out and sold, be deemed to be security for the debt, did not amount to a delivery, either actual or constructive (Wrightson v. McArthur & Hutchisons, Ltd., [1921] 2 K. B. 807).

If the rugs were not in Burr’s possession while they were in storage in the warehouse, the question next to be determined is whether they came into his possession or in that of any agent for his use when they passed from the warehouse to a carrier, the American Express Company. There was no promise by Massarene that Burr should have possession or any right to possession upon the shipment of the rugs or at any time thereafter. The value ($20,000) was so greatly in excess of the amount of the loan that a transfer of possession to the lender might have been an injustice to the owner. Indeed, it was of the essence of the scheme that the owner through her agent should have a continuing right to sell, and in connection with a sale to make delivery to a buyer. The promise was merely this: that Massarene in forwarding the rugs, would take the bill of lading in his own name, and hold the rugs or the substituted proceeds until the loan had been repaid. The promise was ineffective to clothe the promisee with any right to possession that could lawfully have been honored by the carrier. On the basis of such a promise Burr would be powerless to compel delivery to himself if the rugs were still intact and in Massarene's possession. Still less was he in a position to compel delivery, without the production of an order or of any document of title, while the rugs were with the carrier, an independent bailee having a possession of its own.

The action is not framed upon the theory that there has been a loss or impairment of an equitable right. Such loss or impairment, if shown, would not sustain a remedy in trover (Husted v. Ingraham, supra, at p. 259; Altman v. Weyand, 66 App. Div. 353, 357). The case having been tried upon the theory of a conversion, the judgment in trover must be supported by the same proof that was necessary under the common law ” (Walmsley v. Atlas S. S. Co., Ltd., 168 N. Y. 533, 540). The action is framed upon the theory that at the time of the supposed conversion the plaintiff’s assignor had a right to the immediate possession; that Massarene, being a mere agent, had in truth no possession, but only an agent’s custody; and so that the act of the carrier in withholding possession from the the agent, the nominal consignee, was a wrong to the possession of the principal, and, therefore, a conversion. If Massarene was more than a mere agent subject to Burr’s orders, if he had a possession of his own which he was entitled to maintain in opposition to Burr’s commands, the wrong to him was not a conversion as to Burr, if it be thought to be a wrong at all. A conversion it was not, for there was lacking the possessory right without which conversion is impossible.

The remedy in trover failing, the question is left whether some other remedy applies. For the moment, and provisionally, we ignore the form of the complaint and the allegations of conversion. We consider merely whether the action may be sustained as one upon the case to recover damages for the infringement of an equitable right. The theory of the action will then be that there has been an impairment of a lien or of some other equitable interest through the act of the carrier in surrendering the rugs into the possession of the general owner instead of delivering them to Massarene, the person named as consignee. The beneficiary of a trust will thus be suing for the damage wrought to him through a wrong done to his trustee. If all this be taken to be permissible, and the obstacles are many, the final difficulty remains that when once we part with the theory of a technical conversion and an infringement of possession, there is no evidence of damage. The rugs when delivered to the owner were subject to an equitable lien in favor of the plaintiff as fully as if left with Massarene. For all that appears this equitable hen was still a charge upon them, or upon the substituted proceeds, when the action was begun and even at the trial (Husted v. Ingraham, supra, at pp. 258, 259; Hale v. Omaha Nat. Bank, 64 N. Y. 550, 556). Indeed, there is nothing to show that it has ever been contested. Failing a conversion, the wrong, if any, was a nominal one, a substitution of trustees, without ensuing damage, or, at least, any that is proved (Husted v. Ingraham; Hale v. Omaha Nat. Bank, supra).

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

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

Judgments reversed, etc.


text:
    Henry W. Hooey, Appellant, v. Airport Construction Company et al., Respondents.

      (Argued April 11, 1930;
    decided May 6, 1930.)

      James A. Leary and A. W. Pitkin for appellant.
    The defendant Tobin & McKenna, Inc., was negligent. (Shannahan v. Empire Engineering Corp., 204 N. Y. 543; Curran v. L. C. & M. R. R. Co., 211 N. Y. 60; Dick v. Steel & Masonry Contr. Co., 153 App. Div. 651; Drummond v. Norton Co., 156 App. Div. 126, 213 N. Y. 670; Pasquini v. Lowery, 63 Hun, 632; Vincett v. Cook, 4 Hun, 318; Haack v. Brooklyn Labor Lyceum Assn., 93 App. Div. 491; Uggla v. Brokaw, 117 App. Div. 586; Coughtry v. Globe Woolen Co., 56 N. Y. 124; McGlone v. Angus, 248 N. Y. 197; Hollenback v. Hand, 189 Fed. Rep. 929; Bishof v. Leahy, 54 App. Div. 619; Smith v. Brady, 136 App. Div. 665; Murphy v. Rochester Tel. Co., 208 App. Div. 392.) Defendant Airport Construction Company, because of its interference and invitation to plaintiff, is jointly hable. (Flanagan v. Ley & Co., 241 N. Y. 607; McGlone v. Angus, 248 N. Y. 197; Murphy v. Rochester Tel. Co., 208 App. Div. 392 ; 240 N. Y. 629; Hollenback v. Hand, 189 Fed. Rep. 929; Silverman v. Binder, 130 App. Div. 581; De Lee v. Pardy Constr. Co., 249 N. Y. 103; Hawke v. Brown, 28 App. Div. 37; Jacoby v. Browning, 105 Misc. Rep. 312.)

      Jacob I. Goodstein for Airport Construction Company, respondent.
    No cause of action whatever was made out against the defendant Airport Construction Company. (Besner v. Central Trust Co., 230 N. Y. 357; Jacoby v. Browning, 105 Misc. Rep. 312; Silverman v. Binder, 130 App. Div. 581; Joyce v. Convent Ave. Constr. Co., 155 App. Div. 586; De Lee v. Pardy Constr. Co., 249 N. Y. 103.)

      Thomas J. P. Cawley and John W. MacDonald for Tobin & McKenna, Inc., respondent.
    Plaintiff proved no negligence against defendant Tobin & McKenna, Inc. (Bishof v. Leahy, 54 App. Div. 619; Cochran v. Sess, 168 N. Y. 372; Hardie v. Boland Co., 205 N. Y. 336; Loudon v. Railroad, 162 N. Y. 380; Wolf v. Am. Tract Soc., 164 N. Y. 30; Rush v. Bauland Co., 82 App. Div. 507.)
   Cardozo, Ch. J.

In June, 1928, an airport was in course of construction for the city of Albany. The defendant Airport Construction Company was the general contractor for the construction of the hangars. Its superintendent was on the scene during the progress of the work. To a subcontractor, the defendant Tobin & McKenna, Inc., was assigned the building of the walls. Other subcontractors, roofers, carpenters, manufacturers of sash, had their own allotted tasks.

On June 7, the south wall of hangar No. 2 had been carried by the subcontractor to the level of the window sills. On June 8, by 11 a. m., the brick piers had been built between the windows, and between the windows and the door. The masons then gave way until the sash was set in place. They left their tools, bricks and mortar on the spot, for they would have to return at a later stage and construct the brick sills.

The plaintiff, who was employed by the subcontractor for the sash, began his work at the wall the morning of the next day. The wall was eight inches thick, about fifty feet long and nine feet high. It had neither roof nor rafter nor partition to bind it to the hangar of which it was to form a part. Freshly built, it had been left standing in the open country, swept by heavy winds without braces or supports. Hardly had the plaintiff began the placing of the sash before the piers toppled over and buried him below. He suffered injuries for which he sued. The trial judge dismissed the complaint. The Appellate Division affirmed by a divided court.

The falling wall is evidence that there was negligence on the part of some one. There is a custom by which walls of such dimensions, if exposed to winds or other strains, -are sustained while still “ green ” by the support of wooden braces. Either that device or something else was manifestly necessary. The only question is on whom the duty to supply it lay.

We think the general contractor was subject to the duty, whatever may be found to be the liability of others. The undertaking to build the hangars carried with it an attendant obligation to build them well and safely within the limits of the care and skill that are proper to the calling (American Law Institute, Restatement of the Law of Torts, § 254). If the contractor would shift the incidence of the duty, and the liability for non-performance, to the shoulders of another, the least it should do is to prove the terms of the new contract, the extent of delegation. Till then, it is still the entrepreneur, the master of the enterprise. The record does not tell us anything about the terms of the subcontract beyond the fact that the subcontractor had undertaken to build the walls. There is no evidence that it undertook as part of its specifications to provide the necessary guards and braces during the progress of the work, a service which would have involved, for so the record shows, the employment of a carpenter. There is no evidence that such a service is an implied of customary incident of the work of a mason when employed as a subcontractor only. The general contractor is indeed in this dilemma. If it did not make provision, expressly or by implication, that the necessary bracing should be provided by the mason, it was subject to a continuing duty to protect the wall itself (Burke v. Ireland, 166 N. Y; 305; Sheridan v. Rosenthal, 206 App. Div. 279). If it did make such provision, it knew by its superintendent, who was continuously on the job, that protection had been omitted, in which event negligence might reasonably be inferred from the failure to do anything by warning or otherwise to neutralize the danger (Caspersen v. La Sala Bros., Inc., 253 N. Y. 491). In brief, the burden is on the contractor, when once the negligent condition has been proved, to accept responsibility for the conduct of an enterprise admittedly its own, or, if responsibility is to be escaped, to show how and why it was shifted to some one else. Escape from responsibility through the delegation of duty to another is a defense to be proved, not a privilege presumed.

The question is a closer one whether the mason subcontractor was also in default. We cannot say that it was in default with reference to any duty expressly assumed, for we have not seen its contract. We cannot say that it was in default with reference to any duty assumed by implication, for the record does not advise us as to the apportionment of duties according to the custom of the trade. A different question would be here if after doing its own work, it had left the unprotected wall without reasonable ground for the belief that the general contractor would supply the necessary bracing either by an order to the carpenters or in some other fitting way (Ryan v. Feeney & Sheehan Bldg. Co., 239 N. Y. 43; Hardie v. Boland Co., 205 N. Y. 336). If such belief was lacking, the plaintiff had the burden to make the fact apparent. So far as the record shows, the subcontractor might reasonably assume, when its masons stepped aside, that the general contractor, there at hand upon the job, would not fail in the discharge of duties incidental to the enterprise.

As to the defendant Tobin & McKenna, Incorporated, the judgment should be affirmed with costs.

As to the defendant Airport Construction Company, the judgment should be reversed and a new trial granted with costs to abide the event.

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

Judgment accordingly.


text:
    Olaf Caspersen, Appellant, v. La Sala Brothers, Inc., Defendant, and Omaha Realty Company, Inc., Respondent.
    (Argued April 7, 1930;
    decided May 6, 1930.)

      Mansfield Ferry for appellant.
    The defendant owed the plaintiff a duty to use reasonable care for his protection. (DeLee v. Pardy Constr. Co., 249 N. Y. 103; Besner v. Central Trust Co., 230 N. Y. 359; Kenny v. Hall, 85 Misc. Rep. 439; Alexander v. City of New York, 194 App. Div. 161; Shanahan v. Crestonia Constr. Corp., 207 App. Div. 680; Ward v. Hill, 125 App. Div. 587; Thomas v. Solvay Process Co., 216 N. Y. 265; Newall v. Bartlett, 114 N. Y. 399.) There was evidence of a violation of duty which should have gone to the jury. (Sackheim v. Pigueron, 215 N. Y. 62; Thomas v. Solvay Process Co., 216 N. Y. 265; Faber v. City of New York, 213 N. Y. 411; Sundheimer v. City of New York, 178 N. Y. 495; Hughes v. Harbor & Suburban Building & Savings Assn., 131 App. Div. 185.) The trial court erred in excluding testimony which tended, to show notice to the defendant .of a continuing and inherently dangerous condition in the building under its control, and the ordinary and usual precautions taken by other contractors in similar situations. (DeMilt v. Hart, 235 N. Y. 464; Bassett v. Fish, 75 N. Y. 303; Egelston v. New York, Chicago & St. Louis R. R. Co., 205 N. Y. 579; Shannahan v. Empire Engineering Corp., 204 N. Y. 543; 1 Wigmore on Evidence [2d ed.], § 461.)

      Walter G. Evans and Grattan B. Shults for respondent
    The owner or general contractor for the erection of a building owes no duty of active vigilance to protect the employees of one contractor, from the negligence of another, and is only liable for some affirmative act of negligence. (Moore v. Wills, 250 N. Y. 426; Engel v.
      Eureka Club, 137 N. Y. 100; Murphy v. Altman, 28 App. Div. 472; Callan v. Pugh, 54 App. Div. 545; Hogan v. Arbuckle, 73 App. Div. 591; Doremus v. Auerbach, 176 App. Div. 512; 223 N. Y. 709; Sartirana v. N. Y. C. Nat. Bank, 139 App. Div. 597; Joyce v. Convent Ave. Constr. Co., 155 App. Div. 586; Silverman v. Binder, 130 App. Div. 581; Duggan v. National Constructors & Engineers, 223 App. Div. 163; Phillips v. Roth, 160 App. Div. 792; Hexamer v. Webb, 101 N. Y. 377.) The trial court was correct in excluding testimony that debris had fallen down the shaft on other occasions. (Wooster v. Broadway & 7th Ave.,72 Hun, 197; Zucker v. Whitridge, 205 N. Y. 50; Warner v. N. Y. C. R. R. Co., 44 N. Y. 465; Flanagan v. Brown, 211 App. Div. 694.)
   Cardozo, Ch. J.

Plaintiff, a servant of the Otis Elevator Company, was installing an elevator in a building then in course of construction. Beside the elevator well was a shaft for a stairway. The shaft was not visible, however, on the ground floor where the plaintiff was at work, except by lifting up one’s eyes and looking to the floors above. There was nothing to mark its presence to the casual observer. Far up in the shaft, on the t nth or eleventh floor, masons, working on a scaffold, were using tiles and bricks. One of the bricks, falling from the scaffold, struck the plaintiff on the head while he stood beneath the shaft, intent upon his work. In this action for damages, two defendants have been joined. One, La Sala Brothers, Incorporated, a subcontractor for the mason work, was the employer of the bricklayers. The other, Omaha Realty Company, Incorporated, the owner of the building, was in substance a general contractor, maintaining general supervision through a superintendent on the scene. Evidence was excluded that bricks had fallen down the shaftway on previous occasions. Evidence was excluded also that protective devices such as screens or warning signs were customary safeguards. There was a verdict against the subcontractor, and a dismissal of the complaint against the owner. From the affirmance of the dismissal, this appeal has been allowed.

We think the owner of the building, acting as general contractor, was under a duty to the plaintiff to use reasonable care in maintaining the approaches to the elevator in a condition of reasonable safety, and is answerable in damages if the duty was ignored. Liability is not defeated by the fact that the plaintiff was a servant of a subcontractor, and not a servant of the owner. He had come into the building in furtherance of the owner’s business, and was using ways and approaches necessary or suitable to enable him to go forward with his work. In such circumstances the duty of protection is independent of the relation of servant and employer. This was so at common law (Coughtry v. Globe Woolen Co., 56 N. Y. 124.) It is so to-day under the statute (Employers’ Liability Law [Laws of 1921, ch. 121], § 2; Cons. Laws, ch. 74; Labor Law, § 200; Cons. Laws, ch. 31: Hess v. Bernheimer & Schwartz Brewing Co., 219 N. Y. 415, 418). “ If an employer enters into a contract,

written or verbal, with an independent contractor to do part of such employer’s work, or if such contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contractor’s contract with the employer, such contract or subcontract shall not bar the liability of the employer for the injuries to the employees of such contractor or subcontractor, caused by any defect in the condition of the ways, works, machinery, or plant, if they are the property of the employer or are furnished by him, and if such defect arose, or had not been discovered or remedied, through the negligence of the employer, or of some person intrusted by him with the duty of seeing that they were in proper condition ” (Employers’ Liability Law, supra). The defendant is not chargeable with the negligence of the masons, the servants of the subcontractor. It is chargeable with its own negligence in fa Ing to guard the ways against perils unknown to the worker. The precedents are decisive (DeLee v. Pardy Constr. Co., 249 N. Y. 103; Mortensen v. Magoba Constr. Co., 248 N. Y. 577; Flanagan v. Ley & Co., 241 N. Y. 607; McNamara v. Eastman Kodak Co., 220 N. Y. 180, 183; Hess v. B. & S. B. Co., supra; Garland v. Townsend, 217 Mass. 297).

We are not unmindful of the fact that dangers must often be tolerated in a building in process of erection, though needless and so intolerable if permitted in the finished structure. Very often they are obvious, and, if not obvious, inevitable. In the striving after safety, owner or contractor is not required to go beyond the bounds of what is practicable and reasonable (Murphy v. Altman, 28 App. Div. 472, 474; Doremus v. Auerbach, 176 App. Div. 512, 516; 223 N. Y. 709). This does not mean, however, that there will be enjoyment of a like immunity where the dangers are obscure to the worker and easily corrected. Reasonable men might not unreasonably say that it was a peril of this order that laid the plaintiff low.

We think there was error in the dismissal of the complaint. We think there was error also in the exclusion of testimony affecting the measure of the risk and the means available to avoid it.

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.

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

Judgments reversed, etc.


text:
    Morris Plan Company of New York, Respondent, v. Globe Indemnity Company, Appellant.
    (Argued April 7, 1930;
    decided May 6, 1930.)

      Robert H. Elder and Otho S. Bowling for appellant.
    Plaintiff did not acquire the notes by purchase. (Morris

      Plan Co. v. Osnato, 123 Misc. Rep. 428.) Plaintiff did not acquire the notes as collateral to a loan. (Hale v. Burlington, C. R. & N. Ry. Co., 13 Fed. Rep. 203; Pontiac Buggy Co. v. Skinner, 158 Fed. Rep. 858; McCormick v. Falls City Bank, 57 Fed. Rep. 107.)

      R. Randolph, Hicks and ThomasF. Compton for respondent.
    The plaintiff acquired these notes by purchase under the terms of the bond. (Belloni v. Freeborn, 63 N. Y. 383; McGowan v. Hover, 45 Misc. Rep. 138; Martin v. Strachan, 1 Wils. K. B. 66; 2 Rev. Rep. 552; Stamm v. Bostwick, 122 N. Y. 48; McCartee v. Orphan Asylum Soc., 9 Cow. 437; Kinne v. Kinne, 45 How. 61; City of Enterprise v. Smith, 62 Kan. 815; Bergstrom v. Ritz Carlton Restaurant & Hotel Co., 171 App. Div. 776.)
   Per Curiam.

We think the forged notes were not acquired by purchase within the meaning of the contract.

In view of the statement in the borrower’s application for a loan that he was offering “ as security therefor ” a note signed by himself and comakers, we think the notes so offered, which are shown to have been forged, were acquired by the lender as collateral security.

We are not unmindful of the fact that upon the argument of the appeal the counsel for the respondent abandoned the contention that the notes were collateral, and took his stand upon the ground that they had been acquired by purchase. Even so, there has been no abandonment of the contention that the notes are within the purview of the defendant’s bond. Our duty does not require us to reject a contention sound in its ultimate conclusion because the path that we follow is different from the one marked out for us in the argument of counsel.

The judgment should be affirmed with costs.

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

Judgment affirmed.


text:
    John J. Holmer, Respondent, v. Elizabeth Holmer, Appellant. Elizabeth Holmer, Appellant, v. John J. Holmer, Respondent.
    (Argued April 10, 1930;
    decided May 6, 1930.)

      Charles P. Robinson for appellant.
    The findings of fact are insufficient to support the conclusions of law that the husband is entitled to a separation from his wife and that he be not required to support ber. (Mirizio v. Mirizio, 242 N. Y. 74; Avarett v. Avarett, 189 App. Div. 250; 232 N. Y. 519; McNulty v. McNulty, 119 App. Div. 150; Wawhinney v. Millbrook Woolen Mills, 231 N. Y. 290.)
    No appearance for respondent.
   Per Curiam.

The findings in action No. 1, so far as they are supported by the evidence, do not sustain the conclusion of law that plaintiff therein is entitled to a judgment of separation against the defendant. It follows that in action No. 2 defendant was not justified in abandoning plaintiff and !that plaintiff is entitled to a judgment of separation and separate maintenance against the defendant (New York Const, art. VI, § 8).

In action No. 1, the judgment should be reversed and the compláint dismissed, with costs in all courts.

In action No. 2, judgment of separation and separate maintenance and support ordered in favor of the plaintiff, with leave to apply without notice to the Special Term for directions for the support of the plaintiff.

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

Judgments accordingly.


author: Lehman, J.

text:
    Morris Iser, Appellant, v. Herbert Marks Building Corp., Inc., et al., Defendants, and Alvin B. Steele et al., Respondents.
    (Argued March 26, 1930;
    decided May 6, 1930.)

      Max J. Le Boyer and Charles Cooper for appellant.
    The exaction of $6,480 as a bonus for a loan of $2,160, for a. period of nine months, shocks the conscience of a court of equity, and to give respondent Hurwitz priority as against the appellant for the bonus charge is grossly inequitable. (Lehnert v. Notlim Realty Corp., 251 N. Y. 340; Anglo-American S. & L. Assn. v. Campbell, 13 App. D. C. 581; Penn. Steel Co. v. Title Guarantee & Trust Co., 193 N. Y. 37; Claypool v. German Fire Ins. Co., 32 Remy, 540; Joralemon v. McPhee, 31 Col. 26.) • The determination of the Appellate Division is erroneous in increasing respondent’s lien for the reason that such increased sum then included $6,480 which was not advanced and $3,500 which concededly had never been advanced on the strength of the building loan mortgage. (Lehnert v. Notlim Realty Corp., 251 N. Y. 340.)

      Benjamin Berger for Meyer Hurwitz, respondent.
    The bond and mortgage and the building loan agreement assigned to the respondent Hurwitz were valid liens to the extent of the sum of $12,400 and accrued interest and prior in Hen to that of the appellant’s mortgage. (Lehnert v. Notlim Realty Corp., 251 N. Y. 340; Penn. Steel Co. v. Title Guar. & Trust Co., 193 N. Y. 37; Lowenfeld v. Wimpie, 139 App. Div. 67; 203 N. Y. 646; Hardin v. Hyde, 40 Barb. 435; Farmers & Mechanics Bank v. Smith, 61 App. Div. 315; Hubbell v. Blakeslee, 71 N. Y. 65; Farr v. Nichols, 132 N. Y. 327; Agawam Bank v. Strever, 18 N. Y. 502; Simons v. First Nat. Bank, 93 N. Y. 269; Merchants’ Nat. Bank v. Hall, 83 N. Y. 338; Hyman v. Hauff, 138 N. Y. 48.)
   Lehman, J.

The plaintiff’s consolidated mortgage is subordinate to the lien of the defendant Hurwitz for advances made pursuant to the building loan agreement and mortgage for $54,000, executed and filed before the plaintiff’s mortgage. The building loan agreement provides that the first advance of $8,640 shall be made at the time of the execution of the agreement. Other advances were to become due at later stages of the progress of the work, but the lender might at his option make any advances before they were due. At the time of the execution of the instruments the lender delivered checks to the order of the borrower aggregating the sum of $8,900. The largest check, for the sum of $6,840, was immediately indorsed and delivered to the lender and retained by the lender as a bonus for the agreement to make the building loan.

The lender stipulated for the payment of that bonus. The borrower agreed, as it had a right to do. Part of the moneys secured by the mortgage were used for the payment of the bonus. Nothing in the building loan agreement or mortgage forbade, expressly or by implication, such use of the moneys advanced. The lien for advances made in accordance with its terms is superior to the lien of a subsequent mortgagee, who takes with notice of the prior mortgage and building loan agreement. (Hyman v. Hauff, 138 N. Y. 48; Pennsylvania Steel Co. v. Title Guarantee & Trust Co., 193 N. Y. 37.) A different question was presented in Lehnert v. Notlim Realty Corp. (251 N. Y. 340). There the priority of hen for advances made under a building loan agreement and mortgage depended not upon the terms of the agreement between borrower and lender but upon the terms of a subordination agreement executed by a prior mortgagee. We held only that the terms of the subordination agreement did not cover particular advances. Here the Appellate Division correctly held that the plaintiff’s mortgage was subordinate to the lien of the defendant Hurwitz for the entire sum of $8,900 advanced at the execution of the mortgage.

The Appellate Division erroneously found that an additional sum of $3,500 was also advanced pursuant to the mortgage. That sum was never advanced pursuant to the mortgage. It had been loaned by Hurwitz long before the mortgage was executed. When the mortgage was thereafter assigned to Hurwitz it did not cover any moneys previously loaned by the assignee, and the owner of the premises could not at that time agree to extend its protection to cover a prior unsecured loan.

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

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

Judgment accordingly.