text:
    John Hendrickson, Appellant, v. Samuel J. Hodkin et al., Defendants, and Park East Operating Corporation, Respondent.
    Argued October 7, 1937;
    decided December 7, 1937.

      Eugene L. Bondy and Norman Winer for appellant.
    The plaintiff proved a good cause of action against the defendant-respondent as a joint tort feasor with its codefendants. (McQuade v. Stoneham, 263 N. Y. 323; Tandy v. Prudential Ins. Co., 240 App. Div. 709; 263 N. Y. 541; Martindale v. State, 269 N. Y. 554; Schloendorff v. New York Hospital, 211 N. Y. 125; Robertson v. Towns Hospital, 178 App. Div. 285; Green v. Biggs, 167 N. C. 417; Wetzel v. Omaha Hospital Assn., 96 Neb. 636; Tulsa Hospital Assn. v. Juby, 71 Olda. 105; Vannah v. Hart, 228 Mass. 132; Sanatorium v. Scruggs, 121 Miss. 330; Meyer v. McNutt Hospital, 173 Cal. 156; Hornstein v. Podwitz, 254 N. Y. 443; County Plains Corp. v. Nosband Corp., 234 App. Div. 588; Green v. Davies, 182 N. Y. 499.)

      Leo Fixler for respondent.
    Dismissal of the complaint by the Appellate Division was proper. (Brown v. Shyne, 242 N. Y. 176; Schmidt v. Merchants’ Dispatch Transp. Co., 270 N. Y. 287; Stern v. Great Island Corp., 250 App. Div. 115; Karpeles v. Heine, 227 N. Y. 74; Corwin v. N. Y. Erie R. R. Co., 13 N. Y. 42; Matter of Brown v. St. Vincent’s Hospital, 222 App. Div. 402; Matter of Renouf v. N. Y. C. R. R. Co., 254 N. Y. 349; Schloendorff v. N. Y. Hospital, 211 N. Y. 125; Phillips v. Buffalo Gen. Hospital, 239 N. Y. 188; Mills v. Society of N. Y. Hospital, 242 App. Div. 245; 270 N. Y. 594.)
   Hubbs, J.

The respondent Park East Operating Cor-

poration is a private hospital operated for profit. The question involved relates to the duty which it owed to appellant, a patient. Appellant, a truck driver, had a sore on his lower lip for which he had received treatment at various hospitals, but it continued to trouble him. He heard of the defendant Bigley, who had been a chauffeur and also sold ointments to cure skin diseases. In 1933 Rigley returned to Ireland, his native country. On his return to New York he brought back an old remedy for the cure of cancer which had been used in his family for two hundred years; also Irish newspaper accounts of cures made by the use of the salve. Rigley arranged a meeting with appellant at the home of a man named Smith. He showed appellant Irish newspapers containing accounts of cures made by the use of the salve. He stated that he had cured a cancer on Smith’s face and showed him a bottle which he said contained the cancer removed from Smith’s face. He told appellant that the sore on his Up was just a crab and said he could cure it in thirty-one days. It does not appear that Smith ever suffered from a cancer. Two other meetings took place at which Rigley tried to" persuade appellant to try the cure. At the third meeting appellant’s brother, who was expected to furnish the money to pay for the treatment, was present, and he told appellant he would not be a party to the matter unless a doctor approved and supervised the treatment. Appellant then told Rigley that he insisted upon having a doctor. A doctor, who was a relative of appellant, was called in, but he advised against any treatment except at a hospital and under a physician’s supervision. Later Rigley telephoned appellant that he had secured a doctor and thereafter he took appellant to the office of the defendant, Dr. Hodkin, whom appellant had never met before. The doctor, after giving appellant a superficial examination, told him that it was a very serious case and that a cure would cost $10,000. Later he reduced the amount to $3,000. The doctor and appellant’s wife talked over the telephone with appellant’s brother. Some kind of an arrangement was made, and on March 22,1933, appellant was taken to respondent’s hospital. There is expert testimony from hospital physicians that at the time the small superficial cancer on appellant’s lip had been cured by the treatment which he had received at' the other hospitals where he had been treated, and that he was only suffering from the after effect of the radium treatment which he had received. Appellant expected to be taken to Wyckoff Hospital, but while on the way in an automobile was told by Rigley that Dr. Hodkin had made arrangements' at Park East Hospital. Rigley at the same time told him certain papers would have to be signed as a mere formality. Upon entering the hospital appellant found Dr. Hodkin there, who introduced Rigley to Sidney Goodwin, the superintendent and executive manager of the hospital, as the man who has the cure.” Appellant signed, without reading, certain papers which he was assured were mere formalities to reheve Rigley in case of any unusual accident and had nothing to do with the treatment. Appellant was placed in bed and Rigley, in the presence of Dr. Hodkin, proceeded to grind an arsenic compound and make a paste. He said, The quicker I get that plaster on the better.” Dr. Hodkin lined out on appellant’s chin where the plaster should be placed and told Rigley, This is where you want to put the stuff on.” Rigley said, No, I don’t want it that way. I want it my way.” The doctor said, All right, go ahead,” and left the room. He did not return for over two weeks.

After he left, Rigley scratched appehant’s chin until the blood came and then applied the paste and fastened it on with a bandage. During the time the hospital nurse was in the room and Rigley told her he was not a doctor. Referring to the paste, Rigley told her that it contained white arsenic and herbs; that it was the most powerful poison in the world, but that his herbs controlled it. When Rigley left he gave the nurse his telephone number and told her to call him if it began to hurt. Rigley’s name and telephone number were written on a hospital record. In two or three days appellant commenced to suffer pain and his face commenced to swell. Rigley put new skin on the lip where the abrasion was in an effort to stop the flow of saliva. He told the nurses to administer aspirin and whisky in case of pain, and they did so. Rigley was present most of the time, “ in and out all day long.” He told the nurse how to put the bandage back on if it fell off. Every day Rigley brought as many as eight or ten people into the room, took off the bandage' and demonstrated his treatment, gave a talk on his cure, exhibited pictures of Smith, and clippings from the papers in the presence of the nurse. After appellant had been in the hospital two or three weeks, Dr. Hodkin came into his room with Mr. Goodwin and a hospital doctor. He said, “ I will show you this * * * and see how he is progressing.” He took the outer bandage off and pulled down a part of the bandage with the paste on. He said, “ I don’t know a darn thing about this * * * this is all new to me.” The hospital physician asked him, “ Didn’t you have that analyzed or looked into? ” He replied, “ No. It is his secret. The only one that knows anything about it is him [Rigley].” He said he could not have it analyzed because there are herbs in it and you could not find out what the herbs are. The herbs nobody can find out. He is the only one that can get it.” Mr. Goodwin, the superintendent, said: “We will have to play along with him [Rigley]. If everything comes out all right, we will be all taken care of.” One night appellant suffered a hemorrhage and the nurse telephoned Rigley. On one occasion when appellant had a hemorrhage a house physician was called in to stop it. The paste was allowed on appellant’s face for twenty-one days, although medical experts testified that it should never be allowed to remain on over eighteen hours. Appellant remained in the hospital fifty-nine days, at the end of which period his hospital bill was in arrears, and Goodwin, the superintendent, insisted upon his leaving. When appellant left the hospital the flesh had been eaten away from the lip and chin. There was no lip or chin left, and his teeth fell out. It is not necessary to give the horrible details of his condition. Medical experts testified that the treatment administered by Rigley was a competent producing cause of his condition.

The foregoing is a statement of the facts which the jury might have found. There were issues of fact which were resolved by the jury in appellant’s favor. As the reversal was upon the law we are bound by the facts which the jury might have found.

The evidence introduced by the appellant, if believed by the jury, as we must assume that it was, justified the jury in finding that the hospital admitted appellant knowing that the purpose of his being there was for an improper treatment by a layman, the man who has the cure,” as stated by Dr. Hodkin when he introduced Rigley to Mr. Goodwin, the superintendent; that the hospital records showed that Rigley actually personally treated appellant; that nurses, hospital physicians and the superintendent and executive manager knew, during the period that appellant was in the hospital, that appellant was being treated by Rigley, not under the supervision of a doctor; that the superintendent, Goodwin, knowing all about what was going on, stated, We will have to play along with him. If everything comes out all right, we will be all taken care of.” The superintendent knew that the paste being applied was a secret preparation, its contents known only to Rigley.

Goodwin, the superintendent, knew or should have known that Rigley was engaged in the commission of a crime and that the hospital, in affording its facilities for pay, was aiding and abetting him in the performance of such criminal act. (Education Law [Cons. Laws, ch. 16], § 1263.)

Private, non-charitable hospital corporations operated for profit are liable for the torts of their executive officers committed within the general scope of their authority.

Professor Harper, in his Law of Torts, referring to the liability of private corporations for tort, says: “ Corporatians commit torts by the same people who effect and consummate their legitimate activities. For the most part, a corporation is hable, as an individual, for tort committed by its servants or agents acting within the scope of their service or agency quite as it is liable on its contracts properly executed and entered into by its agents.” (§ 293 and cases collated.)

A corporation is hable for a slander uttered by its superintendent while engaged in the corporation’s business (Tandy v. Prudential Ins. Co., 240 App. Div. 709; affd., 263 N. Y. 541); for assault (Genga v. Director General of Railroads, 243 Mass. 101); for false imprisonment (Jacques v. Childs Dining Hall Co., 244 Mass. 438), and for various other torts.

The doctrine of ulti a vires has no apphcation. If it had, ah corporations would be exempt from hability for torts as torts are not authorized by corporations’ charters or by-laws. (Hannon v. Siegel-Cooper Co., 167 N. Y. 244.)

The question always is whether the tort was committed by a representative of the corporation while engaged in the business in which he was employed by the corporation. The same principle applies to a private hospital corporation engaged in business for profit. It owes a duty to its patients.

It is the duty of the owner of a sanitarium conducted for private gain to use reasonable care and diligence not only in treating but in safe-guarding a patient, measured by the capacity of the patient to provide for his own safety.” (Robertson v. Towns Hospital, 178 App. Div. 285, 287. Cf. Tulsa Hospital Association v. Juby, 22 A. L. R. 333, and note, where many cases are collated.)

In the case at bar the basis of liability is not the negligence of the doctor or nurse in charge, but the wrongful conduct of the executive manager and superintendent acting within the scope of his authority in affording foi pay the use of the hospital and its facilities for the purpose of the commission of acts which constitute a tort and a crime in violation of a duty owed a patient. (Cf. Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 132, 134.) The majority of the Appellate Division based its decision that a recovery could not be sustained upon the ground that the only fault was that of the doctor and nurse. In that we think that court erred. Rigley and Dr. Hodkin have not appealed. Rigley was arrested, plead guilty to a charge of unlawfully practicing medicine based on his conduct in this case, and was sentenced to one year in jail.

We have not overlooked various other questions urged by the respondent, but have reached the conclusion that none of them as a matter of law justify the reversal by the Appellate Division.

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.

Crane, Ch. J., O’Brien, Loughran and Rippey, JJ., concur; Lehman and Finch, JJ., dissent.

Judgments reversed, etc.


source: Caselaw Access Project

author: Crane, Ch. J.

license: Public Domain

text:
    George H. Brick et al., Doing Business under the Firm Name of Brick & Ballerstein, Respondents, v. Cohn-Hall-Marx Company, Appellant.

      Argued November 16, 1937;
    decided December 7, 1937.

      Milton C. Weisman and Melvin A. Albert for appellant.
    The complaint was properly dismissed by the Special Term as outlawed by the Statute of Limitations applicable to contracts. (Carr v. Thompson, 87 N. Y. 160; Koerner v. Apple, 198 App. Div. 540; Pamozzo v. Carborundum Co., 7 Fed. Supp. 317; Model Building & Loan v. Reeves, 236 N. Y. 331; People v. Straus & Co., 155 Misc. Rep. 610; New Amsterdam Casualty v. National Union Fire Ins. Co., 266 N. Y. 254; Rogers v. Decker, 131 N. Y. 490; Keys v. Leopold, 241 N. Y. 189; Dumbadze v. Lignante, 244 N. Y. 1; Wood v. Young, 141 N. Y. 211.)

      Eugene L. Bondy and Norman Winer for respondents.
    The complaint sets forth a good cause of action for damages in fraud and deceit, against which the appropriate Statute of Limitations (subdivision 5 of section 48 of the Civil Practice Act) has not run. (Wardell v. Fosdick & Davis, 13 Johns. 325; Ward v. Wiman, 17 Wend. 193; Whitney v. Allaire, 1 N. Y. 305; Heidenreich v. Doushkess, 134 N. Y. Supp. 472; Graham v. Shay, 61 Ore. 133; Osborn v. Will, 183 Minn. 205; Dutchess Co. v. Harding,
      49 N. Y. 321; People v. O’Brien, 209 N. Y. 366; Walter v. Belding, 55 App. Div. 215; Schaffner v. Supply Co., 80 W. Va. 111) Lord Electric Co. v. Barber Asphalt Paving Co., 226 N. Y. 427; Ganley v. Troy City Nat. Bank, 98 N. Y. 487; Lightfoot v. Davis, 198 N. Y. 261; Schmidt v. Merchants’ Dispatch Co., 270 N. Y. 287; Hulbert v. Clark, 128 N. Y. 295; House v. Carr, 185 N. Y. 453; Lamb v. Clark, 22 Mass. 193; Abrams v. Roseth Corp., 249 App. Div. 413; Continental Ins. Co. v. Mercadante, 222 App. Div. 181.) Misrepresentation inducing a plaintiff not to sue until the Statute of Limitations has run is actionable fraud. (Jacobs v. McGurk, 242 App. Div. 612; 267 N. Y. 601; Mills v. Mills, 115 N. Y. 80; Middleton v. Twombly, 125 N. Y. 520; Wood v. Young, 141 N. Y. 211; Abrams v. Roseth Corp., 249 App. Div. 413; Desmaris v. Peoples Gas Light Co., 79 N. H. 195; Cockrill v. Hall, 65 Cal. 326; Clark v. Amos, 144 Kans. 115; Ott v. Hood, 152 Wis. 97; Clinckett v. Casseres, 205 App. Div. 710; Hobaica v. Byrne, 216 App. Div. 307.)
   Crane, Ch. J.

On the 13th of May, 1924, the plain-

tiffs and the defendant entered into a contract regarding royalties to be paid upon the use of a certain package for marketing bolts of cloth. Both parties claimed patent rights, and the agreement was made to permit the use of the package pending patent litigation. The agreement provided for payment as follows:

“First. The first party agrees to pay to the second party N/N per package for each package of bolted cotton or other goods described in said application sold or otherwise disposed of by said corporation, and N/Ñ per package for each package sold or otherwise disposed of by any of its allied and/or subsidiary firms or corporations, and one-half of all sums of money received from all persons, firms and corporations to whom or to which licenses shall be granted to use such invention, and first party agrees to pay to the second party said amount, but it is agreed that the said one-half of the receipts to be paid to the second party by the first party shall not be less than 7YÍ per package for each package used. * * *

Third. The first party agrees to keep accurate books and records showing clearly the number of said packages which shall be sold or otherwise disposed of by the first party and its allied and/or subsidiary corporations or businesses, which books shall be open to the inspection of the second party and their accountants, and the first party further agrees to render to the second party every three months, when payments shall be made as aforesaid, verified statements showing the number of packages sold or disposed of by it and /or by its affiliated and /or allied corporations and businesses during said period.

The first party further agrees to exhibit to the second party all contracts made by the first party for the use by others of said package and all licenses which shall be granted by it, and shall also render verified statements each three months showing the sums of money received by it for said manufacture and/or use of said package during said period, and shall also at the time of making payments as hereinbefore provided pay to the second party the sums due to the second party by reason of any and all licensing agreements relating to said package.

Fourth. The first party further agrees to use the said package for the purpose of merchandising and marketing its bolted cotton goods so long as there is in its opinion a reasonable market therefor.”

On December 28, 1925, this agreement was modified in an unimportant detail.

The plaintiffs in this action sue the defendant for moneys due on this contract since April of 1929, claiming that the defendant kept false books, rendered false statements and made sales for which it did not account. The complaint alleges that the plaintiffs became entitled to receive under the contracts aforesaid, in addition to royalties actually received, royalties on at least 232,402 packages, to wit, the sum of at least $17,430.15.

As this action was not commenced within the six-year Statute of Limitations the plaintiffs have brought action as in fraud, alleging that the books of the defendant contained false and fraudulent entries and that the defendant falsely and fraudulently represented to the plaintiffs that it had fairly and justly paid all that was due under the contract and had accounted for all the sales that were made, and that the plaintiffs did not discover the falsity of these facts until February of 1936. The claim is that the Statute of Limitations does not begin to run upon this claim of fraud until the fraud has been discovered. Section 48 of the Civil Practice Act reads:

The following actions must be commenced within six years after the cause of action has accrued:
“ 1. An action upon a contract obligation or liability express or implied, except a judgment or sealed instrument. * * *
“ 5. Any action to procure a judgment on the ground of fraud. The cause of action in such a case is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud.”

The question certified to this court is the following:

Did the cause of action alleged in the amended complaint herein accrue within the time limited by law for the commencement of an action thereon? ”

The basis of the action is the contract. The claim of the plaintiffs is based upon the contract; in other words, if the defendant owes the plaintiffs any money it is because of the agreement which it made to pay royalties upon sales which were made. Even though the defendant may have falsely stated the amount of the sales and rendered false .statements, the fact remains that its liability on the actual amount of sales depends upon the contract. Whether the defendant deliberately refused to make payment, thus breaching its contract, or whether through neglect it made false statements, or whether it deliberately made false statements, the action of the plaintiffs is founded and based upon the contract, without which they would have no claim at all. The falsity of these statements and the fraud of the defendant according to the allegations amounted to a breach of the contract and were no more or less a breach of the contract than if the defendant had deliberately refused to pay or had neglected to pay. The only purpose which serves the plaintiffs in pleading the fraud is to avoid the Statute of Limitations; that is to say, the plaintiffs, within the six years, would have had the same right to recover with or without the allegations of the fraud. The fraud element is added merely to take the case without the six-year statute. This does not change the nature of the action, however, in our judgment, from an action upon contract to an action upon fraud within the meaning and purpose of this Statute of Limitations (§ 48). To say that the complaint is framed in fraud and not upon contract may be true in theory, but in applying the Statute of Limitations we look for the reality, and the essence of the action and not its mere name. Whatever we may call this action, it is, so far as the Statute of Limitations is concerned, an action upon the contract and within the six-year statute.

If there were fraud extraneous to the contract, lulling the plaintiffs into the belief that the money had been paid or would be paid, a different situation might arise. The plaintiffs in such a case would have a cause of action for the damages caused by the fraud in inducing them to let the Statute of Limitations arise. For instance, if before the statute expired the defendant had assured the plaintiffs that it had already sent a check or had paid, and the plaintiffs, relying upon such assurance, let the time elapse in which suit could be brought, we would then have an instance of extraneous fraud not in any way growing out of the contract. Such is not this case.

The rule here stated is merely an application of the decision in Carr v. Thompson (87 N. Y. 160), wherein, under similar facts, this court said: “An allegation of fraud was in no sense essential to its [cause of action] perfect and correct statement; it could stand without it; omitting every such allegation it could still successfully defy a demurrer; it cannot be said to be founded on fraud, when that element is not essential; the proof of fraud becomes only necessary as the fit answer to a possible defense ” (p. 165).

The Appellate Division relied upon the case of Jacobs v. McGurk (267 N. Y. 601), where this same question arose. It is unfortunate that in that case no opinion was written; and no blame whatever attaches to the Appellate Division for having followed the ruling of the court. The fact, however, is that the point was not raised or considered in this court, as no ruling or exception permitted us to pass upon it.

The order of the Appellate Division should be reversed and the judgment of the Special Term dismissing the complaint affirmed, with costs in this court and in the Appellate Division. The question certified should be answered in the negative.

Lehman, O’Brien, Herbs, Loughran, Finch and Rippey, JJ., concur.

Judgment accordingly.


author: Hubbs, J.

text:
    Thompson-Starrett Company, Inc., Respondent, v. American Mutual Liability Insurance Company, Appellant.

      Argued November 18, 1937;
    decided December 7, 1937.

      Dickinson S. Talley, Jeremiah F. Connor and Desmond T. Barry for appellant.
    The Appellate Division should have construed the indorsement in connection with the policy to which it was attached. (Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519; Boylhart v. Dimarco & Reimann, Inc., 270 N. Y. 217; Berla v. Zambetti, 235 App. Div. 464; Rosenberg v. Schwartz, 260 N. Y. 162; Dudar v. Milef Realty Corp., 258 N. Y. 415; Matter of Garelick v. Rosen, 274 N. Y. 64; American Cereal Co. v. London Guarantee & Accident Co., 211 Fed. Rep. 96.) By its language, the indorsement did not cover the accident. (Bird v. Beckwith, 45 App. Div. 124; Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36; Dudar v. Milef Realty Corp., 258 N. Y. 415.) The indorsement was not for the benefit of respondent. (Fosmire v. National Surety Co., 229 N. Y. 44.) Respondent, by its acts, construed the indorsement against its present claim. (Wirth & Hamid v. Wirth, 240 App. Div. 413; 265 N. Y. 214; Porter v. Pennsylvania R. R. Co., 217 App. Div. 49; Bevin v. Steers, 218 App. Div. 502; 245 N. Y. 508; Long Island Coach Co. v. Hartford Acc. & Indemnity Co., 223 App. Div. 331; 248 N. Y. 629.) There was an estoppel. (Matter of Burmester v. DeLucia, 263 N. Y. 315; Hessler v. North River Ins. Co., 211 App. Div. 595; Boby v. Central Ins. Co., 120 N. Y. 510.)

      J. G. Fink and Harry N. French for respondent.
    The loss was clearly within the express terms of the indorsement. (Lo Galbo v. Columbia Casuatly Co., 234 App. Div. 510; Standard Oil Co. v. United States, 264 Fed. Rep. 66; Westinghouse, Church, Kerr & Co. v. Long Island R. R. Co., 160 App. Div. 200 ; 216 N. Y. 697; Messersmith v. American Fidelity Co., 232 N. Y. 161; Cass v. Realty Securities Co., 148 App. Div. 96; 206 N. Y. 649; Matter of Garelick v. Rosen, 274 N. Y. 64; Creem v. Fidelity & Casualty Co., 141 App. Div. 493; 206 N. Y. 733; Eddy v. London Assur. Corp., 143 N. Y. 311; Howe v. Mill Owners Mut. Fire Ins. Co., 241 App. Div. 336; Killian v. Metropolitan Life Ins. Co., 251 N. Y. 44; Gerka v. Fidelity & Casualty Co., 251 N. Y. 51; Paskusz v. Philadelphia Casualty Co., 213 N. Y. 22; Schumacher v. G. E. C. & I. Co., 197 N. Y. 58; Benedict v. Ocean Ins. Co., 31 N. Y. 389.) The plaintiff is entitled to recover upon the contract of insurance as a third party beneficiary. (Rector v. Teed, 120 N. Y. 583; F. N. Bank of Sing Sing v. Chalmers, 144 N. Y. 432; Hamilton v. Hamilton, 127 App. Div. 871; Seaver v. Ransom, 224 N. Y. 233; Ultramares Corp. v. Touche, 255 N. Y. 170; Thompson-Starrett v. Otis Elevator Co., 271 N. Y. 36; Dudar v. Milef Realty Corp., 258 N. Y. 415; Post & McCord, Inc., v. N. Y. Mun. Ry. Corp., 187 App. Div. 167; 230 N. Y. 540; Long Island R. R. Co. v. American Bridge Co., 175 App. Div. 170; 225 N. Y. 692; McClare v. Massachusetts Bonding & Ins. Co., 266 N. Y. 371; Graybar Electric Co. v. Seaboard Surety Co., 157 Misc. Rep. 275; Fredenburg v. Fredenburg, 159 Misc. Rep. 525; Hastings v. Westchester Fire Ins. Co., 73 N. Y. 141; Firemen’s Fund Ins. Co. v. Pennant Finance Carp., 124 Misc. Rep. 369.) The claim of estoppel and that plaintiff has construed the indorsement against its present claim is without merit. (Brown v. Gallaudet, 80 N. Y. 413; Rosenberg v. Slotchin, 181 App. Div. 137; Geiler v. Littlefield, 148 N. Y. 603; Wills v. Investors

      Bankstocks Corp., 257 N. Y. 451; Pagel, Horton & Co. v. Harmon Paper Co., 236 App. Div. 47.)
   Hubbs, J.

The respondent was the general contractor engaged in erecting a building. It entered into a- subcontract with the Gurney Elevator Company for the installation of the elevators. In that contract the Gurney Company covenanted to indemnify and save harmless the respondent general contractor against liability by the following provision of the subcontract:

Article XV. Sub-Contractor shall indemnify and save harmless the Owner, Architect and Contractor against any and all claims and demands for damages to the property of any person, firm or individual and for personal injuries (including death) arising out of or caused, in whole or in part, by the execution of the Work, or caused, in whole or in part, by any fault or neglect of Sub-Contractor or its agents, servants and employees, whether the damages or injuries be sustained by any employee of Sub-Contractor, Contractor, Owner or Architect, or otherwise, and whether said claims or demands arise or are made under any provision of any workmen’s compensation act or other law or statute, or otherwise.”

That subcontract was dated August 3, 1929. On April 1, 1929, the appellant insurance company issued to the Gurney Company, the subcontractor, a contractor’s contingent liability policy. The Gurney Company apparently subcontracted some of the work to be performed under its subcontract with the respondent, the general contractor. On August 8, 1929, the Gurney Company caused to be issued by the appellant, and attached to its policy a contingent liability indorsement which reads:

“ In consideration of the above stated additional premium, it is hereby agreed that the policy to which this endorsement is attached is extended from 12:01 a. m. August 8th, 1929, to cover the liability of the ThompsonStarrett Company, Contractor and The N & L Realty Corporation, Owner against loss from the liability imposed upon the aforesaid for damages on account of bodily injuries including death resulting therefrom suffered by any person or persons as a result of accidents occurring during the installation of elevators by the Gurney Elevator Company, Inc. at 30 Pine Street, New York, N. Y., it being agreed that the Thompson-Starrett Company, Contractor and the N & L Realty Corporation, Owner have no employees engaged in the installation work. * * *
Nothing herein contained shall waive, vary, alter or extend any provision or condition of the undermentioned policy other than as above stated.”

This action is based on that indorsement. An employee of the Gurney Company named Burke, while working in the elevator shaft, was struck by a brick negligently dropped by an employee of the respondent. He recovered a judgment against the respondent for $35,000 which was subsequently settled and paid by it. Over five years after the accident happened to Burke, and about three years after the trial of the Burke case, this action was commenced to recover from appellant insurance company $25,000, the maximum amount of liability of the insurance company under its policy and indorsement, and also the expense of defending the Burke case. Thus far the respondent has succeeded on the theory that the indorsement constitutes a complete contract of insurance between itself and appellant insurance company or that the language of the indorsement has the effect of abrogating the provision of the policy, viz., that it covers only the contingent liability of the respondent, the insured, for negligence of its subcontractors.

It is a familiar rule that in construing an indorsement to an insurance policy the indorsement and policy must be read together and that the policy remains in full force and effect except as altered by the words of the indorsement. (Matter of Garelick v. Rosen, 274 N. Y. 64.) If an indorsement extends the term of a policy beyond the expiration day or hour specified in the policy, the time of expiration specified in the policy must give way to the stated time of expiration contained in the indorsement, as the indorsement has the effect of expressly changing that provision of the policy. That and nothing more was decided in Matter of Garelick v. Rosen (supra).

It is equally true that if an indorsement attached to a policy expressly provides that it is subject to “ all the terms, limitations and conditions of the policy,” the policy and indorsement must be read together and an indorsement in such a case does not abrogate or nullify any provision of the policy unless so stated in the indorsement.

The insured Gurney Elevator Company was insured by the policy against contingent liability for damages, that is, liability for damages growing out of the fault of its subcontractors for which it would not be primarily liable. After the indorsement became effective, it had the same protection and no other. The indorsement had no greater effect than to give the respondent the same protection which the policy gave the insured, that is, the policy as- stated in the indorsement is extended ” to cover the liability of respondent. Under the expressed terms of the policy it did not afford any protection to the insured, the Gurney Company, for its own negligence or the negligence of its own employees. It was not intended to and did not constitute a general coverage. By its terms it only protected the insured from a secondary liability growing out of the negligence of its subcontractors. Under the indemnity clause of the subcontract between the general contractor, the respondent, and the Gurney Company, the latter company was liable to the respondent for any damage caused it by the negligence of the subcontractors of the Gurney Company. The policy did not protect the Gurney Company, the insured, against such liability to its general contractor. It was to protect against such secondary liability that the indorsement was procured.

It happens not infrequently that a general contractor or owner may become liable for the negligence of a subcontractor. The indemnity clause contained in the contract was inserted to protect the general contractor from such liability. (Cf. Boylhart v. DiMarco & Reimann, Inc., 270 N. Y. 217.)

Being liable to the general contractor, the insured sought by the indorsement to protect itself from such liability. If doubt there be as to the construction given to the documents, such doubt should be removed when the acts of the parties and the interpretations which they place upon the contracts are considered. When respondent was sued by Burke, it called upon the Gurney Company to protect it under the indemnity agreement contained in the subcontract. That company in turn called upon the appellant to protect it under the policy and indorsement in question. The appellant and the Gurney Company each denied liability, the Gurney Company on the ground that the indemnity agreement did not protect the general contractor from liability growing out of the negligence of its own employees (Cf. Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36), and the appellant upon the ground that the policy and indorsement did not make it hable for the same reason as the policy and indorsement only protected against secondary liability growing out of the negligence of a subcontractor of the Gurney Company, the insured.

Under the indemnity agreement, the Gurney Company was under no obligation to procure insurance to protect the respondent. It was obligated to procure insurance to protect itself under the Workmen’s Compensation Law (Cons. Laws, ch. 67) and from liability against claims for damage. It is hardly reasonable to suppose that it intended voluntarily to obligate itself to pay premiums on a policy which it was under no duty to furnish.

No demand was made by the respondent upon the appellant that it defend the Burke case or that it pay the judgment recovered therein. It did demand of the Gurney Company that it defend the case under the indemnity agreement and the Gurney Company in turn notified the appellant of such demand and stated that if it suffered any loss it would look to appellant for reimbursement. The appellant paid $1,797 for medical expense for Burke under its workmen’s compensation policy. About three years after the accident to Burke, and after the action had been commenced by Burke against respondent, the appellant commenced an action to recover from the respondent the $1,797 it had paid out under its workmen’s compensation policy for Burke’s medical expenses. The respondent settled the action by the payment of the full amount claimed although it had a perfect defense if its present contention is correct that the appellant is hable to it under the indorsement. It is thus apparent that neither the respondent nor appellant during that period understood that the indorsement evidences an intent or had the effect of making the appellant liable to the respondent for damages caused it by the negligence of its own employee. The respondent could not have had any intent as to the purpose or effect of the indorsement as it did not know about it until months after it was issued.

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

Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur.

Judgment accordingly.


author: Finch, J.

text:
    John E. Rosasco Creameries, Inc., Appellant, v. Henry Cohen et al., Copartners under the Firm Name of Cohen Dairy Company, Respondents.
    Argued October 23, 1937;
    decided December 7, 1937.

      James Marshall, J. N. Wasserman, R. J. Schosberg and Joseph J. Cella for appellant.
    The plaintiff’s failure to procure a dealer’s license did not render unenforcible its claim for milk sold and delivered to the defendants. (Sajor v. Ampol, Inc., 275 N. Y. 125; Fosdick v. Investors Syndicate, Inc., 266 N. Y. 130; Watters & Martin, Inc., v. Homes Corp., 136 Va. 114; Warren People’s Market Co. v. Corbett & Sons, 114 Ohio St. 126; Mahar v. Harrington Park Villa Sites, 204 N. Y. 231; Matter of Birner v. Santa Lucia Wineries, Inc., 155 Misc. Rep. 722; Harris v. Runnels, 12 How. [U. S.] 79; Adams Express Co. v. Darden, 286 Fed. Rep. 61; Timmerman v. Morrison, 14 Johns. 369; O’Connor v. Francis, 42 App. Div. 375; Stake & Co. v. Roth, 91 Misc. Rep. 45; Roman v. Lobe, 213 App. Div. 162; Pratt v. Short, 79 N. Y. 437; Sinnott v. German-American Bank, 164 N. Y. 386; Furlong v. Johnston, 209 App. Div. 198; 239 N. Y. 141; Doherty v. McAuliffe, 74 Fed. Rep. [2d] 800; Brustein v. New Amsterdam Casualty Co., 255 N. Y. 137; Schieffelin v. Lahey, 243 N. Y. 102; Matter of Meyer, 209 N. Y. 386.) The general rule that a contract made in violation of an exercise of the police power is void does not apply. (Schnaier v. Navarre Hotel & Importation Co., 182 N. Y. 83; Putnam v. Siravo, 140 App. Div. 194; Fox v. Smith, 197 N. Y. 527; Silinsky v. Lustig, 118 Misc. Rep. 298; Murray v. Doud, 167 Ill. 358; Griffith v. Wells, 3 Den. 226; Christophersen & Kiaer, Inc., v. U. S. Navigation Co., 121 Misc. Rep. 778.)

      Isador Goetz for respondents.
    Where the statute, requiring the license, was enacted for the protection of the public and expressly prohibits under penalty, and there is nothing in the language which indicates an intent to limit its scope to the exaction of the penalty, or to grant that a contract may be lawful, and there is nothing in the subject-matter to justify a presumed intent on the part of the lawmakers to relieve the wrongdoer from the ordinary consequences of a forbidden act, the contract made without having procured the required license creates no right of action which a court will enforce. (Miller v. Ammon, 145 U. S. 421; Sturm v. Truby, 245 App. Div. 357; Griffith v. Wells, 3 Den. 226; Swing v. Dayton, 124 App. Div. 58; 196- N. Y. 503; Sprague v. Webb, 168 App. Div. 292; Adler v. Zimmerman, 233 N. Y. 431; Johnston v. Dahlgren, 166 N. Y. 354; Bendell v. DeDominicis, 251 N. Y. 305; Fox v. Dixon, 58 Hun, 605; Accetta v. Zupa, 54 App. Div. 33.) Where a license is required in connection with any business in the exercise of the police power of the State and for the promotion of the general welfare, the unlicensed person engaged in that business may not recover for goods sold and delivered. (Segal v. Chemical Imp. & Mfg. Co., 205 App. Div. 220; Griffith v. Wells, 3 Den. 226; Johnston v. Dahlgren, 166 N. Y. 354; Bronold v. Engler, 194 N. Y. 323; Adler v. Zimmerman, 233 N. Y. 431; Ferdon v. Cunningham, 20 How. Pr. 154; Fox v. Dixon, 58 Hun, 605; Best v. Bauder, 29 How. Pr. 489; Accetta v. Zupa, 54 App. Div. 33; Bloom v. Saperski, 8 Misc. Rep. 311; Schnaier v. Grigsby, 132 App. Div. 854; 199 N. Y. 577; Brightman & Co. v. Tate, [1919] 1 K. B. 463.) .
   Finch, J.

The plaintiff, a milk dealer, brought this action to recover approximately $11,000 as the agreed and reasonable value of milk sold and delivered to the defendants, who are also milk dealers. The answer admits the sale and delivery of milk, the quantity thereof, and the failure to pay, but denies the allegations concerning the agreed and reasonable value of the milk. As an affirmative defense, it alleges that the plaintiff was not licensed as a milk dealer in accordance with the Agriculture and Markets Law (Cons. Laws, ch. 69) during the period when it sold the milk to the defendants. The lack of license is admitted in the reply of the plaintiff. The defendants assert two counterclaims. The first is for damages for an alleged breach of an oral contract, which, it is asserted, provided that the plaintiff would sell and deliver, and defendants would purchase all milk required by the defendants in connection with their business up to a total of 10,500 forty-quart cans per month. By the second counterclaim, the defendants seek to recover a sum of money alleged to have been overpaid to the plaintiff. The reply of the plaintiff denies allegations of the counterclaims, and pleads in bar the claim urged by the defendants of the illegality of the transaction. It also relies on the Statute of Frauds as a defense to the first counterclaim.

At Special Term a motion to strike out the affirmative defense was granted, and a motion by the defendants to dismiss the complaint was denied. Subsequently Special Term granted summary judgment in favor of the plaintiff and dismissed the counterclaims. Appeals were taken, and both appeals were decided at the same time. The Appellate Division, one justice dissenting, reversed the order striking out the first aflSrmative defense, and dismissed the complaint on that ground. The Appellate Division also reversed the summary judgment, stating in its opinion that the dismissal of the complaint required this in so far as the summary judgment granted aflSrmative relief to the plaintiff, and that the affidavits presented issues of fact in so far as they applied to the counterclaims.

The primary issue for decision is whether a dealer in milk, which makes sales while unlicensed, may recover the agreed price or the reasonable value of milk sold to another dealer. The contention that the failure to obtain a license renders the claim unenforcible is based on section 257 of the Agriculture and Markets Law, which reads as follows: «

§ 257. Licenses to milk dealers. No milk dealer shall buy milk from producers or others or deal in, handle, sell or distribute milk unless such dealer be duly licensed as provided in this article. It shall be unlawful for a milk dealer to buy milk from or sell milk to a milk dealer who is unlicensed, or in any way deal in or handle milk which he has reason to believe has previously been dealt in or handled in violation of the provisions of this chapter. The commissioner may by official order exempt from the license requirements provided by this article, milk dealers who purchase or handle milk in a total quantity not exceeding three thousand pounds in any month, and /or milk dealers selling milk in any quantity in markets of one thousand population or less. * * * ”

Illegal contracts are generally unenforcible. Where contracts which violate statutory provisions are merely malum prohibitum, the general rule does not always apply. If the statute does not provide expressly that its violation will deprive the parties of their right to sue on the contract, and the denial of relief is wholly out of proportion to the requirements of public policy or appropriate individual punishment, the right to recover will not be denied. (See Williston on The Law of Contracts, vol. 3, § 1789; vol. 5 [2d ed.], § 1630. Cf. American Law Institute, Restatement of the Law of Contracts, §§ 548, 600.)

In Sajor v. Ampol, Inc. (275 N. Y. 125) the lower courts held that the plaintiff could rescind his subscription to the defendant’s stock on the ground that the failure to comply with the statutory requirement which prohibited the sale of securities to the public without first filing a notice with the Department of State, rendered the sale null and void. In reversing, this court, in an opinion by Chief Judge Crane, said: “ The notice, requiring the name of the dealer, his business or post office address, the State of incorporation and other like matters, in no way affected the plaintiff’s purchase. Such a statement had no relation whatever to his transaction. Its purpose was to inform the Attorney-General and the State authorities of the stock business carried on by dealers and of the place where such business was to be conducted. * * * The statute does not make sales void or voidable or unenforceable when such notice has not been filed. Such is the requirement of many of the States of the Union which have similar statutes. Our statute has an omnibus provision relating to the violation of any provision of article 23-A of the General Business Law, making the violation a misdemeanor punishable by a fine of not more than $500, or imprisonment of not more than one year, or both (§ 359-g, subd. 2). This penalty provided for the violation is the exaction which the law makes, and no other. We should not read into the provisions of the statute that which other State legislators have found it necessary to insert, in order to reach the transactions between the parties. Our Legislature * * * did not intend to make void or voidable any and every contract made with a corporation dealer, otherwise valid, simply because it had failed to comply with the many administrative provisions of this law. Such has been our ruling in cases like Fosdick v. Investors Syndicate, Inc. (266 N. Y. 130); Merchants’ Line v. B. & O. R. R. Co. (222 N. Y. 344); Mahar v. Harrington Park Villa Sites, (204 N. Y. 231); Warren People’s Market Co. v. Corbett & Sons (114 Ohio St. 126); Pangborn v. Westlake (36 Iowa, 546); Winters v. Lindsay (52 Cal. App. 93); Walters & Martin, Inc., v. Homes Corp. (136 Va. 114); Escalle v. Mark (43 Nev. 172) ” (pp. 130, 131).

Of like tenor is Fosdick v. Investors Syndicate, Inc. (266 N. Y. 130) where the defendant had failed to comply with the Banking Law (Cons. Laws, ch.2), which prohibits a foreign corporation from doing the business of an investing company in this State without first obtaining a license. We held that, despite this failure to obtain a license, a purchased from the defendant could not recover back installment payments made on account of the purchase.

The reasoning of both these cases is applicable to the case at bar. The statute involved does not expressly provide that contracts made by unlicensed milk dealers shall be unenforcible, although it does make a violation of the so-called milk control law a misdemeanor punishable by a fine of not less than $25 nor more than $200 or by imprisonment for not less than one month nor more than six months, or both. In the case at bar, if the contract is declared unenforcible, the effect will be to punish the plaintiff to the extent of a loss of approximately $11,000 and permit the defendants to evade the payment of a legitimate debt. Nor was the statute enacted for the purpose of protecting dealers such as the defendants. The primary purpose of the statute is to protect producers and the consuming public. Little danger to the public health is involved by the sale of milk by unlicensed dealers, the statute itself providing that dealers who have less than 3,000 pounds of milk a month and those selling milk in any quantity in markets of 1,000 population or less, may be exempted from its requirements. This distinguishes the case at bar from those involving health and morals. (Adler v. Zimmerman, 233 N. Y. 431; Johnston v. Dahlgren, 166 N. Y. 354; Accetta v. Zupa, 54 App. Div. 33.)

We have here a statute which provides that milk dealers shall not sell milk unless duly licensed.. The statute imposes penalties for its violation by way of fine and imprisonment, but it does not expressly provide that contracts made by milk dealers shall be unenforcible. Nothing in this statute reveals an implied intent to deprive unlicensed dealers of the right to recover the reasonable value of the milk sold by them, and where the wrong committed by the violation of the statute is merely malum prohibitum, and does not endanger health or morals, such additional punishment should not be imposed unless the legislative intent is expressed or appears by clear implication.

The judgment of the Appellate Division dismissing the complaint should be reversed, and the order of the Special Term striking out the separate defense affirmed, and the matter remanded, with costs to abide the event.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Rippey, JJ., concur.

Judgment accordingly.


author:
Finch, J. Lehman, J. Rippey, J.
      Hubbs, J.

text:
    Isaac Goldfinger, Respondent, v. Philip Feintuch, as President of Butcher Union Local No. 174, Appellant.

      Argued October 12, 1937;
    decided December 7, 1937.

      William Karlin and Leo Greenfield for appellant.
    The trial court’s findings of fact were amply justified by the evidence and should not have been reversed by the Appellate Division. The Court of Appeals has jurisdiction to review the facts and should reinstate the findings of fact as made by the trial court. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Boyd v. Boyd, 252 N. Y. 422.) The Appellate Division erred in reversing the Special Term upon the law. The activities of the defendant did not constitute an unlawful secondary boycott subject to injunctive restraint. (Auburn Draying Co. v. Wardell, 227 N. Y. 1; Public Baking Co. v. Stern, 127 Misc. Rep. 229; 216 App, Div. 831; Engelmeyer v. Simon, 148 Misc. Rep. 621; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Bossert v. Dhuy, 221 N. Y. 342; Paine Lumber Co. v. Neal, 244 U. S. 459; Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405; Spanier Window Cleaning Co. v. Awerkin, 225 App. Div. 735; Tri-Boro Window Cleaning Co. v. Krat, 241 App. Div. 799; New York Lumber Trade Assn. v. Lacey, 245 App. Div. 262.) The activities of the defendant were lawful and justifiable. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Blumenthal v. Weikman, 154 Misc. Rep. 684; National Protection

      Assn. v. Cumming, 170 N. Y. 315; Sherman v. Abeles, 265 N, Y. 383.) Plaintiff must be denied injunctive relief under section 876-a of the Civil Practice Act. (Aberdeen Restaurant Corp. v. Gottfried, 158 Misc. Rep. 785; Levering & Garrigues Co. v. Morrin, 71 Fed. Rep. [2d] 284; Cinderella Theatre Co. v. Sign Writers Local Union, 6 Fed. Supp. 164; Stanley v. Peabody Coal Co., 5 Fed. Supp. 612.)

      Alfred B. Nathan and Benjamin Lewis for respondent.
    Appellant’s threats to plaintiff, its interference with his business and the picketing of his- store, even in the absence of actual force and violence, were necessarily coercive in effect, and constituted a wrongful interference with plaintiff’s property rights, and, therefore, an illegal secondary boycott. Hence, plaintiff was entitled to injunctive relief restraining the defendant union from picketing his premises and otherwise interfering with his business. (Auburn Draying Co. v. Wardell, 227 N. Y. 1; Dorchy v. Kansas, 272 U. S. 306; Truax v. Corrigan, 257 U. S. 312; Duplex Printing Press Co. v. Deering, 254 U. S. 443; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Bossert v. Dhuy, 221 N. Y. 342; J. H. & S. Theatres v. Fay, 260 N. Y. 315; Wise Shoe Co. v. Lowenthal, 266 N. Y. 264; Remington Rand, Inc., v. Crofoot, 248 App. Div. 356; Grandview Dairy, Inc., v. O’Leary, 158 Misc. Rep. 791; Stuhmer & Co. v. Korman, 241 App. Div. 702; 265 N. Y. 481; Commercial House & Window Cleaning Co. v. Awerkin, 226 App. Div. 734; National House Cleaning Contractors, Inc., v. Bobaluc, 243 App. Div. 699; Gertz, Inc., v. Randau, 162 Misc. Rep. 786; Pacific Typesetting Co. v. Typo. Union, 125 Wash. 273.) The action does not involve a labor dispute within the meaning of subdivision 1G of section 876-a of the Civil Practice Act, and plaintiff, therefore, was not required to establish compliance with the requirements of the statute. (Thompson v. Boekhout, 249 App. Div. 77; 273 N. Y. 390; La Rose v. Possehl, 156 Misc. Rep. 476; United Elec. Coal Co. v. Rice, 80 Fed. Rep. [2d] 1; 297 U. S. 714; Lauf v. Shinner & Co., 82 Fed. Rep. [2d] 68; Scavenger Service Corp. v. Courtney, 85 Fed. Rep. [2d] 825; Duplex Printing Press Co. v. Deering, 254 U. S. 443; American Steel Foundries v. Tri-City C. T. Council, 257 U. S. 184; American Gas Stations, Inc., v. “ John Doe,” 250 App. Div. 227; Scharf v. “ John Doe,” 247 App. Div. 882; Remington Rand, Inc., v. Crofoot, 248 App. Div. 356; Grandview Dairy, Inc., v. O’Leary, 158 Misc. Rep. 791.)
   Finch, J.

W. & I. Blumenthal manufacture kosher meat products which are sold under the name of “ Ukor.” The “Ukor” products are the only non-union-made kosher provisions sold in the city of New York, and the salaries paid by this company range from fifty to seventy-five cents an hour as compared with the union scale of ninety-five cents to one dollar and twenty-five cents an hour. The defendant Butcher Union Local No. 174 endeavored to obtain a union agreement from the manufacturer of Ukor products. When these efforts were unsuccessful the defendant decided to picket the non-union-made products at the retail stores. Among the stores picketed was that of the plaintiff, a dealer in kosher meat products. The defendant placed pickets, sometimes one, sometimes two, in front of the plaintiff’s store, carrying signs which bore the inscriptions in English and Yiddish, “ This store sells delicatessen that is made in a non-union factory,” and “ Ukor Provision Company is unfair to Union labor. Please buy Union-made delicatessen only.”

The important question in this case is whether, assuming that there has been no violence, force, intimidation, breach of the peace, coercion, fraud, or unlawful threat, the act of the defendant in thus picketing the delicatessen store of the' plaintiff is legal. ,

Before coming to this primary question, however, it is necessary for us to ascertain whether there have been other unlawful acts sufficient to justify the injunction issued by the Appellate Division. Upon this record many of the facts are in dispute. It is undisputed that the defendant union appointed a committee consisting of about fifty of its members to carry out the plan of picketing the retail stores where the non-union product was sold. Members of the committee called on the plaintiff. Both Special Term and the Appellate Division have found that this committee threatened the plaintiff that unless he discontinued the sale of Ukor products they would picket and importune customers to cease purchasing such products. There is also evidence that they said that unless he discontinued the sale of the non-union products “ We are going to picket you, we are going to ruin you.” The plaintiff testified that customers were begged not to buy, and those who made purchases were cursed. Another witness testified that on two occasions he heard a picket ask passers-by not to purchase “ scab merchandise.” The police were called and the evidence is in dispute as to whether they admonished the pickets or the storekeeper, but, in any event, the situation remained unchanged. In addition there is evidence that the sales of the plaintiff from his little store, which has been in the vicinity for eight years, have fallen $100 per week, which is a very substantial portion of the total weekly sales and might well constitute irreparable damage to this plaintiff.

As between an employer and an employee the right of a union to picket peacefully is generally conceded. Its purpose must be to persuade, not to intimidate. So long as the pleas of both employer and employee are lawful the courts have not been constituted arbiters of the fairness, justice or wisdom of the terms demanded by either the employer or employees. (J. H. & S. Theatres, Inc., v. Fay, 260 N. Y. 315.) It is only where unlawful acts have been committed that the courts intervene to redress or prevent manifest abuse of the right to picket peacefully with a limited number of pickets. (Nann v. Raimist, 255 N. Y. 307.) Picketing is not peaceful where a large crowd gathers in mass formation or there is shouting or the use of loud speakers in front of a picketed place of business, or the sidewalk or entrance is obstructed by parading around in a circle or lying on the sidewalk. Such actions are illegal, and are merely a form of intimidation. Likewise it is illegal to picket the place of business of one who is not himself a party to an industrial dispute to persuade the public to withdraw its patronage generally from the business for the purpose of coercing the owner to take sides in a controversy in which he has no interest. Nor is it legal to threaten to ruin the custom and trade generally or to accost or interfere with customers at the entrance to the store. Disorderly conduct, force, violence or intimidation by pickets should be sternly suppressed by the police and administrative authorities.

Within the limits of peaceful picketing, however, picketing may be carried on not only against the manufacturer but against a non-union product sold by one in unity of interest with the manufacturer who is in the same business for profit. Where a manufacturer pays less than union wages both it and the retailers who sell its products are in a position to undersell competitors who pay the higher scale, and this may result in unfair reduction of the wages of union members. Concededly the defendant union would be entitled to picket peacefully the plant of the manufacturer. Where the manufacturer disposes of the product through retailers in unity of interest with it, unless the union may follow the product to the place where it is sold and peacefully ask the public to refrain from purchasing it, the union would be deprived of a fair and proper means of bringing its plea to the attention of the public.

An analogous principle has been applied by this court in Bossert v. Dhuy (221 N. Y. 342); Willson & Adams Co. v. Pearce (264 N. Y. 521, affg. 240 App. Div. 718); and in New York Lumber Trade Assn. v. Lacey (269 N. Y. 595). The cases of Auburn Draying Co. v. Wardell (227 N. Y. 1) and Stuhmer & Co. v. Korman (241 App. Div. 702; affd., 265 N. Y. 481) are not in point. In the Wardell case all union members in the city of Auburn, regardless of industry, threatened to withdraw their patronage from any one who dealt with the plaintiff because it refused to require its employees to join a union. In the Stuhmer case the pickets made false statements, obstructed the sidewalks, created disturbances and were guilty of other unlawful conduct which so permeated all the picketing that an injunction would have been warranted whether the picketing was at the store of a retailer or that of the non-union manufacturer.]

We do not hold more than that where a retailer is in unity of interest with the manufacturer, the union may follow the non-union goods and seek by peaceful picketing to persuade the consuming public to refrain from purchasing the non-union product, whether that is at the plant of the manufacturer or at the store of the retailer in the same line of business and in unity of interest with the manufacturer. Such storekeeper may be, as in the case at bar, the sole person required to man his business. If Goldfinger, the delicatessen dealer, had employed any help, legally they could strike or refuse to work for him so long as he sold Ukor products. We have so held in Bossert v. Dhuy {supra). Such employees, having the right to refuse to work for the plaintiff, would likewise have the right to inform the public why they refused to work for the plaintiff. In this respect at least it has been settled that labor may aid its cause. If a union may request its members not to work upon or with materials bought from a non-union shop or call a strike for such reasons, it is difficult to see why, under the law of this State, it may not peacefully state the grievance by placards similar to those used here. In other words, it may, in a proper manner and in a peaceful way,, ask the public to refrain from purchasing products made by non-union labor and. state where the same are sold. The holding by this court that where a shopkeeper is the sole person required to run his business he is, therefore, not subject to picketing by a union which seeks to compel him to employ union labor (Luft v. Flove, 270 N. Y. 640; Thompson v. Boekhout, 273 N. Y. 390), is not authority to prevent peaceful picketing for the purposes in the case at bar. Here, the purpose is legal. There, it was unlawful.

We are thus brought to a consideration of the recently-enacted statute applicable to the issuance of injunctions in labor disputes (Civ. Prac. Act, § 876-a; Laws of 1935, ch. 477). This provides in brief that no injunction shall issue in a labor dispute in the absence of certain enumerated findings which have been found on disputed evidence in the case at bar. Also that the relief granted shall not prohibit certain acts including (subd. 1, par. 5) “ Giving publicity to and obtaining or communicating information regarding the existence of, or the facts involved in, any dispute, whether by advertising, speaking, picketing, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace.”

Whether this statute is merely an expression or an extension of the principles of the common law and equity as applied to labor injunctions and stated in the opinions of this court, need not now be considered. The constitutionality under the Fourteenth Amendment of the United States Constitution of the portions of the statute herein applicable does not seem in doubt. In Senn v. Tile Layers Protective Union (301 U. S. 468) the United States Supreme Court upheld a similar statute, at least in so far as it authorizes peaceful picketing and truthful publicity, the court stating that no one has a constitutional right to a ' remedy ’ against the lawful conduct of another ” (p. 483). (See, also, the State cases cited in note, 46 Yale Law Journal, p. 1064, and on the question of equal protection of the laws, Jones v. Union Guano Co., 264 U. S. 171.) The case of Truax v. Corrigan (257 U. S. 312) was distinguished as involving libelous attacks, abusive epithets, threats and intimidation.

Nor can the plaintiff successfully contend that these portions of the statute herein involved violate the Constitution of New York State. (Matter of Stilwell, 139 N. Y. 337; People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429; Matter of Brock, 245 App. Div. 5. See Matter of Berkovits v. Arbib & Houlberg, Inc., 230 N. Y. 261, 274. Cf. Colson v. Pelgram, 259 N. Y. 370.)

It is urged, however, that section 876-a was never intended to apply to the conduct involved herein; that this case does not involve a “ labor dispute ” within the meaning of that term as used in the statute. Subdivision 10 of that section defines labor dispute. Pertinent portions thereof provide: “ A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft or occupation * * * when the case involves any conflicting or competing interests in a ‘ labor dispute ’ (as hereinafter defined) of ‘ persons participating or interested ’ therein (as hereinafter defined).” (par. a.) The term labor dispute ” is then defined as any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee.” , (par. c.) In view of this definition it cannot be contended that the casé at bar does not involve a labor dispute under section 876-a. Controversy has arisen out of an attempt by the defendant to represent the employees of W. & 1. Blumenthal in fixing the terms or conditions of employment. W. & I. Blumenthal, the defendant union, and the plaintiff are all engaged in the same industry. The only ground that could be advanced for contending that the statute is not applicable is that the plaintiff is not the employer of the men whom the defendant seeks to represent; but the statute expressly provides that it is applicable to parties in the same industry, regardless of whether or not the disputants stand in the relation of employer and employee.”

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

Lehman, J.

(concurring in part). I agree that peaceful picketing of the plaintiff’s place of business by the defendant union for the purpose of inducing the plaintiff’s customers to refrain from buying non-union products of a manufacturer, which are on sale by the plaintiff, is lawful. That is not a secondary boycott.” For that reason the judgment of the Appellate Division should be modified, if not reversed. I agree, too, that the union would be acting unlawfully if it picketed the plaintiff’s place of business in manner calculated to impede or intimidate customers of the plaintiff, or if the union attempted to coerce the plaintiff by other unlawful acts or by threat of injury to his business, except as such injury might result from the use, by the union, of lawful means to achieve a lawful end. (Exchange Bakery & Restaurant, Inc., v. Rif kin, 245 N. Y. 260.) A majority of this court are of the opinion that the plaintiff is entitled to an injunction, at least against such unlawful acts and threats. I do not agree with that conclusion because-, in my opinion, the weight of the evidence sustains the findings of the trial judge that here there were no such wrongs.

The trial court found, after hearing and seeing witnesses, that the picketing was conducted by the defendant union in a peaceful and orderly manner without threats, intimidation, force or violence either against plaintiff or his customers. The Appellate Division has based the contrary finding of violence and intimidation upon evidence given by the plaintiff and a photographer, employed by the plaintiff to take photographs of the picketing. . It is undisputed that on week days there was only one picket in front of the plaintiff's store, and on Saturdays two pickets. The testimony as to threats, violence or disorder upon a few occasions, usually not identified, is vague, consists largely of conclusions, and is contradicted by those accused of wrongdoings. No customer is produced by the plaintiff and no police officer.

Disorderly conduct, force, violence or intimidation by pickets should be sternly suppressed by the police. In this case a majority of the Appellate Division, disregarding the evidence of the witnesses produced by the defendant, and disregarding the findings of the trial judge who heard these witnesses, has chosen to believe the vague and unsatisfactory testimony given by the plaintiff, and to base finding of threats and intimidation upon that evidence. I can find no basis for the conclusion of the Appellate Division that the findings of the trial judge are against the weight of evidence.

The judgment of the Appellate Division should be reversed and the judgment of Special Term affirmed.

Rippey, J.

(concurring in part). I concur in the result reached solely upon the ground that the trial court found upon sufficient evidence that there was complete unity of interest between the plaintiff and the manufacturer. Except for the finding of unity of interest, the facts would establish a secondary boycott and would be illegal. I cannot agree that the plaintiff and the manufacturer were engaged in the same trade or industry. There is no finding of fact to that effect nor is there any evidence upon which such a fact could be found.

Hubbs, J.

(dissenting). I dissent and vote to affirm upon the ground that even if defendant could generally, by publicity, urge people not to purchase the Ukor products, that does not permit the defendant to say to a dealer who does not employ help that they will ruin him and his business and to carry out that threat by picketing his place of business. That is a secondary boycott and I think it is illegal and against public policy.

Our decisions are open and we should take the position that other courts have taken and so hold.

Crane, Ch. J., concurs with Finch, J.; Lehman and Loughran, JJ., concur, except as to the weight of evidence, as stated in a memorandum by Lehman, J.; O’Brien, J., concurs in result on the authority of Wise Shoe Co. v. Lowenthal (266 N. Y. 264); Rippey, J., concurs in result in separate memorandum; Hobbs, J., dissents and votes to affirm in memorandum. .

Judgment accordingly.


text:
    The People of the State of New York, Respondent, v. Harry Klinge, Appellant.
    Argued December 2, 1937;
    decided January 4, 1938.

      George A. Spohr, Jr., and Pasquale E. Conforti for appellant.
    The ordinance is wholly invalid and void. It is an unreasonable, arbitrary, oppressive and capricious exercise of police power and violates the Fourteenth Amendment of the United States Constitution and sections 1 and 6 of article 1 of the New York State Constitution. (City of Buffalo v. Linsman, 113 App. Div. 584; People v. Gilbert, 68 Misc. Rep. 48; Colon v. Lisk, 153 N. Y. 188; Stuart v. Palmer, 74 N. Y. 183; Gilman
      v. Tucker, 128 N. Y. 190; City of Buffalo v. N. Y. C. R. R. Co., 125 Misc. Rep. 801; New State Ice Co. v. Liebmann, 285 U. S. 262; Lawton v. Steele, 152 U. S. 133; People v. Cohen, 272 N. Y. 319; People v. Kuc, 272 N. Y. 72; Matter of Jacobs, 98 N. Y. 98; Cowan v. City of Buffalo, 247 App. Div. 591; N. Y. Sanitary Co. v. Dept. of Health, 61 App. Div. 106; General Baking Co. v. City of Saratoga Springs, 149 Misc. Rep. 92; Virgo v. City of Toronto, 22 Can. Sup. Ct. 447; People v. Wilson, 249 Ill. 195; Chaddock v. Day, 75 Mich. 527.)

      Edwin C. Morsch and Edwin B. Goddin for New York Dugan Brothers, Inc., amicus curiæ.

    The ordinance is void. (City of Buffalo v. Linsman, 113 App. Div. 584; People v. Gilbert, 68 Misc. Rep. 48; People v. Cohen, 272 N. Y. 319; People v. Ringe, 197 N. Y. 143; Wright v. Hart, 182 N. Y. 330.)

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for respondent.
    Section 153 of chapter 23 of article 13 of the Code of Ordinances of the City of New York violates neither the Constitution of the United States nor of the State of New York and it is a reasonable exercise of the police power. (Matter of Wulfsohn v. Burden, 241 N. Y. 288; Waldorf-Astoria Hotel Co. v. City of New York, 212 N. Y. 97; People v. May, 98 Misc. Rep. 561; People ex rel. Van Norder v. Sewer Commission, 90 App. Div. 555; People v. Horowitz, 27 N. Y. Crim. Rep. 237; Biddles, Inc., v. Enright, 239 N. Y. 354; People ex rel. Publicity Leasing Co. v. Ludwig, 219 N. Y. 553; People v. Griswold, 213 N. Y. 92; Adler v. Deegan, 251 N. Y. 467; People v. Nebbia, 262 N. Y. 259; Matter of City of New York Housing Authority v. Muller, 270 N. Y. 333; Matter of Stubbe v. Adamson, 220 N. Y. 459; People v. Gillson, 109 N. Y. 389; People v. Beakes Dairy Co., 222 N. Y. 416; People ex rel. Bryant v. Zimmerman, 241 N. Y. 405.)

      Paul Windels, Corporation Counsel (Paxton Blair of counsel), for City of New York, amicus curiæ.

    The ordinance is directed toward the lessening of obstructions and incumbrances on the public streets in a region where they had become a menace to the public health, safety and general welfare. It is, therefore, constitutional. (Block v. Hirsh, 256 U. S. 135; Schmidinger v. City of Chicago, 226 U. S. 578; Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580; Pacific States Box & Basket Co. v. White, 296 U. S. 176; Blank v. Browne, 217 App. Div. 624; Pugh v. City of Des Moines, 176 Iowa, 593; Village of Wonewoc v. Taubert, 203 Wis. 73; Matter of Rudack v. Valentine, 163 Misc. Rep. 326; 274 N. Y. 615; Matter of Hogg, 70 Tex. Crim. Rep. 161.) The ordinance is not rendered unconstitutional either by the confinement of its operation to particular streets, or by its lack of abstract symmetry. (People v. Sanger, 222 N. Y. 192; Blackmer v. United States, 284 U. S. 421; Matter of Hogg, 70 Tex. Crim. Rep. 161; People v. Beakes Dairy Co., 222 N. Y. 416; State v. Logsdon, 215 Iowa, 1297; Town of Green River v. Fuller Brush Co., 65 Fed. Rep. [2d] 112; Hadfield v. Lundin, 98 Wash. 657; People ex rel. Hofeller v. Buck, 193 App. Div. 262; 230 N. Y. 608; People v. Russell, 49 Mich. 617; City of Duluth v. Krupp, 46 Minn. 435; People v. Kupusinac, 261 Mich. 398; Grafty v. City of Rushville, 107 Ind. 502; Commonwealth v. Gardner, 133 Penn. St. 284; City of Chicago v. Rhine, 363 Ill. 619; Commonwealth v. Fox, 218 Mass. 498; City of New Orleans v. Taranto, 149 La. 864.)
   Hubbs, J.

The judgments should be reversed and the information dismissed upon the ground that chapter 23, article 13, section 153, subdivision 2 of the Code of Ordinances of the City of New York referring to the fifth ward of Queens borough is unreasonable, arbitrary, oppressive and discriminatory. (Cf. People v. Cohen, 272 N. Y. 319; People v. Kuc, 272 N. Y. 72; Matter of Mid-State Advertising Corp. v. Bond, 274 N. Y. 82.)

Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur.

Judgments reversed, etc.


text:
    Helen J. Glaser, Appellant, v. Walter T. Glaser, Respondent.
    Argued November 29, 1937;
    decided January 11, 1938.

      William J. Dawley and J. Gibson Fruin for appellant.
    The marital relation is integrated with the public policy of the State. (Fearon v. Treanor, 272 N. Y. 268; Hanfgarn v. Mark, 274 N. Y. 22; Wade v. Kalbfleisch, 58 N. Y. 282; Maynard v. Hill, 125 U. S. 190; Parker v. Parker, 222 Fed. Rep. 186; Hubbard v. Hubbard, 228 N. Y. 81.) The marital relation constitutes an institution or status, and is a res, which has a situs, and that situs1, is the matrimonial domicile; and the power to dissolve the marital tie is confined to the courts of the matrimonial domicile. (Haddock v. Haddock, 201 U. S. 562; Atherton v. Atherton, 181 U. S. 155; Cheever v. Wilson, 9 Wall. 108; Andrews v. Andrews, 188 U. S. 14; Lister v. Lister, 86 N. J. Eq. 30; Hubbard v. Hubbard, 228 N. Y. 81.) The jurisdiction of the Nevada court to render the decree of divorce is open to inquiry. (Andrews v. Andrews, 188 U. S. 14; Thompson v. Whitman, 18 Wall. 457; Rose v. Himely, 4 Cranch, 241; Burbank v. Ernst, 232 U. S. 162; Olmstead v. Olmstead, 216 U. S. 386; Wisconsin v. Pelican Ins. Co., 127 U. S. 265.) The Nevada court acquired no jurisdiction over the res, the marital status of the parties, which is the subject-matter of this action. (Newburger v. American Surety Co., 242 N. Y. 134; Hartigan v. Casualty Co., 227 N. Y. 175; Fischer v. Fischer, 254 N. Y. 463; Lefferts v. Lefferts, 263 N. Y. 131; Stokes v. Stokes, 198 N. Y. 301; Elterman v. Hyman, 192 N. Y. 113; City of Buffalo v. D.,L. & W. R. R. Co., 190 N. Y. 84; Israel v. Manhattan Ry. Co., 158 N. Y. 624.) Plaintiff’s alleged appearance in the Nevada action did not give the Nevada court jurisdiction to decree the divorce. (Gray v. Gray, 143 N. Y. 354.) Plaintiff’s alleged appearance in the Nevada suit does not estop her from contesting the validity of the Nevada decree. (Stevens v. Stevens, 273 N. Y. 157; Duval v. Wellman, 124 N. Y. 156.)

      William D. Whitney, Frank W. Holmes and T. Roland Berner for respondent.
    In cases in which the defendant appeared in the divorce action in the sister State the decree of the sister State is final and binding. (Kinnier v. Kinnier, 45 N. Y. 535; Jones v. Jones, 108 N. Y. 415; Guggenheim v. Guggenheim, 201 N. Y. 602; Guggenheim
      v. Wahl, 203 N. Y. 390; Tiedemann v. Tiedemann, 225 N. Y. 709; 251 U. S. 536; Pearson v. Pearson, 230 N. Y. 141; Borenstein v. Borenstein, 272 N. Y. 407; Strauss v. Strauss, 122 App. Div. 729; Stewart v. Stewart, 198 App. Div. 337; Richards v. Richards, 87 Misc. Rep. 134; 167 App. Div. 922; Rupp v. Rupp, 156 App. Div. 389; Scheinwald v. Scheinwald, 231 App. Div. 757; France v. France, 79 App. Div. 291; Matter of Pratt, 233 App. Div. 200; 258 N. Y. 577.) The appellant is estopped to attack the Nevada decree. (Starbuck v. Starbuck, 173 N. Y. 503; Hynes v. Title Guarantee & Trust Co., 273 N. Y. 612; Kaufman v. Kaufman, 177 App. Div. 162; Scheinwald v. Scheinwald, 231 App. Div. 757; Schneider v. Schneider, 232 App. Div. 71; Matter of Pratt, 233 App. Div. 200; 258 N. Y. 577; Van Dover v. Van Dover, 247 App. Div. 813; 271 N. Y. 667; Jones v. Jones. 108 N. Y. 415.)
   Crane, Ch. J.

This is an action brought by a wife for a separation. The sole question presented here for determination is the validity of aJNevada divorce heretofore granted the husband.

The parties were married in the city of New York on August 29, 1935. Both parties had been residents of the State of New York, and after their marriage continued to reside there. In November, 1935, the husband left the State of New York and became a resident of the State of Nevada. There he commenced_an action against plaintiff for a divorce, in accordance with the laws of Nevada.

On November 4, 1935, the plaintiff executed and acknowledged a power of attorney wherein she appointed Joseph P. Haller, of Reno, Nevada, her lawful attorney at law and in fact to represent her in the divorce action, with full power and authority to do all acts that may be exercised and done by an attorney. Thereafter the plaintiff appeared in the divorce action by Haller, as her attorney. A decree of the Second Judicial Court of the State of Nevada, dated January 6, 1936, dissolved the marriage between plaintiff and defendant.

The plaintiff alleges in her complaint that the power of attorney was procured from her by fraud and false representations, that she never intended to execute such a document and did not intend to submit herself to the jurisdiction of the Nevada court either by appearance in person or through an attorney. She also alleges that defendant was not an actual and bona fide resident of the State of Nevada at the time he instituted the divorce, that he went there solely to procure the decree and never gave up his residence in the State of New York. These issues have been resolved by the courts below against the plaintiff. It has been found that defendant duly became a resident of the State of Nevada,” and that plaintiff executed the power of attorney voluntarily, understanding the contents and nature of the instrument, and without any false representations on the part of defendant. There is evidence to support these findings, and this court cannot interfere with them.

Plaintiff, however, raises further argument against recognition of this decree. The marriage was performed in this State, both parties were domiciled in this State, and after the decree was rendered the husband resumed his domicile here. Plaintiff charges that the main purpose of her husband in going to the foreign State was to procure the divorce, and she contends that a decree of divorce obtained under such circumstances is invalid, offends our public policy, and should not be recognized here. (Cf. Andrews v. Andrews, 188 U. S. 14.) No legislative enactment expressing such policy is pointed out as in the Andrews case. Plaintiff rests her argument upon the general policy of the State with respect to marriage and divorce, as interpreted by the courts. A sufficient answer to plaintiff’s argument is that our courts have many times recognized such decrees as valid, and have never indicated in any way that any policy of this State was infringed.

In Pearson v. Pearson (230 N. Y. 141) the wife brought an action against her husband to recover the sums which she claimed she had expended out of her separate estate up to the commencement of the action. While the action was pending the husband had obtained a divorce in Nevada on the ground of extreme cruelty. The wife had appeared and defended that action. The substance of the defense here was that the plaintiff had been guilty of extreme cruelty and that defendant had been justified in leaving plaintiff and was relieved from the obligation of supporting her during their separation. This court held that the parties in the Nevada action had litigated the very question at issue in this action, and that the Nevada decree was conclusive on the rights of the parties.

In Ansorge v. Armour (267 N. Y. 492) an action was instituted, by an attorney to recover for legal services rendered in a habeas corpus proceeding instituted for the purpose of obtaining the custody of a child from defendant. Defendant was the father of the child, and had custody pursuant to the terms of a decree of divorce made by a Nevada court. The habeas corpus proceedings were instigated by the wife, and this action was brought against the husband on the ground that the services rendered to the child were necessaries. The foreign divorce had been obtained by the wife upon the appearance of the husband. Referring to that decree this court said: The Nevada court, having jurisdiction of the action and of the parties, gave the custody of the offspring to the father during the week and to the mother over the week-ends-. This decree is, therefore, entitled to full faith and credit in every State in the Union. The wife is bound by it, so is the husband; the courts here cannot review it or set aside its provisions in the absence of fraud; neither can any judge of this State change the custody of the child merely because he does not agree with the action of the Nevada court (p. 498).

Only recently, in Hess v. Hess (276 N. Y. 486), we affirmed a judgment recovered in an action for money due under a decree of divorce rendered in the State of Nevada. The parties had been domiciled here, separated, and entered here into a separation agreement which fixed an allowance for the wife. The husband had appeared in the action in Nevada and filed an answer. The decree in that action provided alimony in accordance with the agreement which was recited. Having jurisdiction of the parties and the plaintiff being domiciled in Nevada according to its laws, the court declared the decree binding.

These decisions followed the law of this State, as decided in earlier cases. (Tiedemann v. Tiedemann, 225 N. Y. 709; Guggenheim v. Wahl, 203 N. Y. 390; Jones v. Jones, 108 N. Y. 415.)

By article VI, section 1, of the Federal Constitution, full faith and credit shall be given in each State to the judicial proceedings of every other State.

The cases in the United States Supreme Court cited in the brief of the appellant’s counsel treat of facts which force the State courts under this section to recognize the decrees of a sister State. None of these cases, however, decide when and under what conditions a State may recognize a foreign decree, although it is not bound to do so under the Federal Constitution. These are matters of State policy over which the United States Supreme Court has no jurisdiction. What is the public policy of a State and where do we look to find it? The decisions of this court have given it a limited legal meaning, for in People v. Hawkins (157 N. Y. 1, at p. 12) this court said: “ The term ‘ public policy ’ is frequently used_in a very vague, loose or inaccurate sense.- The courts have often found it necessary to define its juridical meaning, and have held that a State can have no public policy except what is to be found in its constitution and laws. (Vidal v. Girard’s Exrs., 2 How. [U. S.] 127; Hollis v. Drew Theological Seminary, 95 N. Y. 166; Cross v. U. S. T. Co., 131 N. Y. 343; Dammert v. Osborn, 140 N. Y. 40.) Therefore, when we speak of the public policy of the State, we mean the law of the State, whether found in the Constitution, the statutes or judicial records.”

In Andrews v. Andrews (188 U. S. 14, p. 29) we find a reference to the public policy of Massachusetts regarding these foreign divorces as expressed in its statutes, which read as there quoted:

“ ‘ Sec. 35. A divorce decreed in another State or country according to the laws thereof by a court having jurisdiction of the cause and of both the parties, shall be valid and effectual in this Commonwealth; but if an inhabitant of this Commonwealth goes into another State or country to obtain a divorce for a cause which occurred here, while the parties resided here, or for a cause which would not authorize a divorce by the laws of this Commonwealth, a divorce so obtained shall be of no force or effect in this Commonwealth. ’ 2 Rev. Laws Mass. 1902, ch. 152, p. 1357; Pub. Stat. 1882, c. 146, § 41.”

We have no such statute in this State, and, as we have heretofore recognized these decrees of a sister State, as appears by the above decisions, we must affirm the judgment below, without costs.

The judgment should be affirmed, without costs.

O’Brien, Hubbs, Loughran, Pinch and Rippey, JJ., concur; Lehman, J., concurs in result.

Judgment affirmed.


text:
    W. Spencer Wright, Appellant, v. Tudor City Twelfth Unit, Inc., et al., Respondents, Impleaded with Another.

      Argued December 1, 1937;
    decided January 11, 1938.

      Joseph A. Nickerson and Stanley D. Brown for appellant.
    Washing rubber mats with soap and water on a public sidewalk and leaving them unattended in a slippery condition is inherently dangerous to pedestrians. (Carlock v. Westchester Lighting Co., 268 N. Y. 345; Rohlfs v. Weil, 271 N. Y. 444; Shearod v. 41st & Park Ave. Corp., 254 N. Y. 618; Reilly v. American Meat & Supply Co., 248 N. Y. 536; Huth v. Woolworth & Co., 250 N. Y. 577.) Defendants had knowledge that the inherently dangerous work was being performed on the sidewalk. (Cullings v. Goetz, 256 N. Y. 287.) The cause of the accident was not collateral negligence in a detail of the work but the hazard which is inherent in the work. (Hyman v. Barrett, 224 N. Y. 436; Rohlfs v. Weil, 271 N. Y. 444; Boylhart v. DiMarco & Reimann, Inc., 270 N. Y. 217; Trustees of Canandaigua v. Foster, 156 N. Y. 354; Klepper v. Seymour House Corp., 246 N. Y. 85; Appel v. Mutter, 262 N. Y. 278.)

      H. H. Brown and E. C. Sherwood for respondents.
    Any negligence was that of the servants of an independent contractor; and for their negligence, if any, the defendants were not liable. (Hyman v. Barrett, 224 N. Y. 436; Herman v. City of Buffalo, 214 N. Y. 316; Hexamer v. Webb, 101 N. Y. 377; Schneyer v. Leblang Realty Corp., 248 App. Div. 175; Caldwell v. Wildenberg, 228 App. Div. 557; Rudger v. Mucklon Holding Co., 240 App. Div. 188; Matter of Beach v. Velzy, 238 N. Y. 100; Moore v. Wills, Inc., 250 N. Y. 426; Hull v. Littauer, 162 N. Y. 569.) There were no facts from which a jury could legitimately infer negligence on the part of the men engaged in cleaning the mats. Nor were there any facts to justify a finding that a nuisance was being maintained. (Lyman v. Village of Potsdam, 228 N. Y. 398; Welsh v. Wilson, 101 N. Y. 254; Toomey v. Hotel Chesterfield, 261 N. Y. 647; Cameron v. Purdue Realty Corp., 231 App. Div. 149.)
   Finch, J.

The plaintiff, while proceeding lawfully along the sidewalk, slipped upon a rubber mat lying on the sidewalk and fell, brealdng his right arm. The rubber mat, with other mats and runners, was being cleaned with soap and water on Forty-second street in New York city, in front of the premises owned by the defendant Tudor City Twelfth Unit, Inc., and operated and managed by the defendant Fred C. French Management Co., Inc. These mats and runners were used in the lobby of the defendant’s hotel. The defendant set up as a defense to this action that those who were cleaning the mats were employees of an independent contractor. There was evidence that the defendant had instructed the independent contractor to do the cleaning of the mats between midnight and seven a. m. There was evidence, also, that this work of cleaning mats was done in the basement of the hotel on cold days and on the sidewalk on warm days, and that the work had been done in this manner for about six months. The accident occurred on December 6th.

The trial court charged that ordinarily one who employs an independent contractor is not liable for his negligence, but that an exception exists where the work involves the creation of a dangerous situation, and it reasonably should have been anticipated that such a situation would result from the work. By this charge it was left to the jury to determine whether the work was inherently dangerous, and whether a reasonably prudent man would have anticipated that such work would be dangerous to people passing along the street. The court further charged that whether it was contemplated that this work should be done on the sidewalk was a question for the jury to determine, and in so doing they were to consider the length of time this practice had been followed and the manner in which the mats were cleaned. The judge stressed the necessity for notice, and the jury were told that it would constitute notice so as to establish responsibility if the owner knew that the work was being done in this way, either by being told or having seen it done, or if the owner should have known because of the length of time the practice had been followed. The plaintiff requested the trial court to charge a city ordinance, which provides that owners of buildings must keep the sidewalks abutting the premises free from obstructions and nuisances at all times, but when the trial court remarked that this would necessitate its charging afresh, plaintiff acquiesced in the omission. The jury returned a verdict in favor of the plaintiff. The Appellate Division reversed on the law and facts and dismissed the complaint.

The Appellate Division held that the work of cleaning the mats was not inherently dangerous, that it was a delegable duty and was being done, by an independent contractor for whose negligence the defendants should not be held Hable. It found, also, that proof was lacking that the defendants had notice that the work was being done on the street, and that the place where the mats were cleaned constituted a mere detail of the work.

Although it is contended that those who did the work were not independent contractors, there is sufficient evidence to establish that fact. The general rule applies that one is not hable for the neghgence of independent contractors unless danger is inherent in the work. (Rohlfs v. Weil, 271 N. Y. 444; Boylhart v. DiMarco & Reimann, Inc., 270 N. Y. 217.) This means that the owner is not hable where the danger arises merely because of neghgence of the independent contractor or his employees which is collateral to the work and which is not reasonably to be expected, but that he is hable where, from the nature of the work, danger is readily forseeable. When one undertakes work in a pubhc highway which, unless carefully done, will create conditions which are dangerous to members of the pubhc using the highway, in the usual and ordinary manner, he is under a duty to use requisite care. That duty cannot be delegated.” (Boylhart v. DiMarco & Reimann, Inc., supra, at p. 221.) Although no exception was taken to the failure to charge the apphcable ordinance, it may be noted that the city, by enacting the ordinance which provides that owners, lessees, occupants or persons, in charge of buildings shall keep the sidewalks free from obstructions * * * of every kind,” recognizes that the placing of such obstructions upon the sidewalk creates conditions dangerous to pedestrians. (Sanitary Code, New York Code of Ordinances, ch. 20, art. 4, § 53.) Whether danger is inherent in the work contracted for and should be reasonably anticipated is a question dependent on the facts of each case. In the case at bar it seems clear that work which involved placing mats on sidewalks and cleaning them with soap and water involved danger to pedestrians which a jury might find to be inherent in the work and readily forseeable. The hour at which the work was done would not change the apphcable principle, especially when we consider the locality, namely, so busy a street as Forty-second street, New York city.

The defendants argue that it was not necessary to do this work on the street, that it should have been done in the basement, and that, therefore, the negligence was collateral and a mere detail of the work. But this work had been going on for six months, and there is testimony that it was done on the sidewalk on all warm days and in the basement only when it was cold. What is meant by cold becomes plain when we find the work being done on the sidewalk on the sixth of December. From this the jury could have concluded that the work was being done on the sidewalk the greater part of the time, and that the defendants must have or reasonably should have known of the place where it was being carried on. Thus there was evidence to sustain a finding by the jury that the defendants were aware that the work, which they had delegated to another, was being done in a way from which danger to the public was reasonably forseeable. The charge on this question was fair. We cannot say, as a matter of law, that cleaning of mats with soap and water on the sidewalk of Forty-second street in New York city does not, by the nature of the work, involve danger to pedestrians. We reach the same conclusion whether we regard the work as constituting a nuisance or only negligence.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Rippey, JJ., concur.

Judgments reversed, etc.


author: Per Curiam.

text:
    In the Matter of Western Electric Company, Incorporated, Appellant, against Frank J. Taylor, as Comptroller of the City of New York, Respondent.
    Argued December 2, 1937;
    decided January 11, 1938.

      Homer H. Breland, Craddock M. Gilmour and T. Brooke Price for appellant.
    The enabling act (L. 1934, ch. 873, as amd. L. 1935, ch. 601), as construed by the courts below, is unconstitutional in so far as it attempts to delegate to a municipality the legislative power of" the State to regulate the jurisdiction of the Supreme Court. (People ex rel. Unger v. Kennedy, 207 N. Y. 533; Stanton v. Essex County, 191 N. Y. 428; Adler v. Deegan, 251 N. Y. 467; Schieffelin v. Leary, 219 App. Div. 660; Gennis v. Milano, 135 Misc. Rep. 209; Clarke v. City of Rochester, 28 N. Y. 605; New York Steam, Corp. v. City of New York, 268 N. Y. 137.) The construction placed upon the enabling act by the courts below that the Legislature thereby intended to delegate to a municipality power to regulate the jurisdiction of the Supreme Court is erroneous. (Brolan v. United States, 236 U. S. 216.)

      Paul Windels, Corporation Counsel (Paxton Blair, Oscar S. Cox and Frank J. Derrick of counsel), for respondent.
    The enabling act conferred upon the city the power to qualify the review of the Comptroller’s determinations by requiring the prepayment of the tax and the filing of a bond. (Brewster v. Gage, 280 U. S. 327; Hartley v. Commissioner of Internal Revenue, 295 U. S. 216; First Nat. Bank v. United States, 86 Fed. Rep. [2d] 938; Bullock v. Cooley, 225 N. Y. 566; Continental Casualty Co. v. Shankel, 88 Fed. Rep. [2d] 819; Bull v. United States, 295 U. S. 247; Matter of Lehigh Valley R. R. Co. v. Sohmer, 174 App. Div. 732; Matter of 184 William St. Co. v. Lynch, 240 App. Div. 935; Exchange Oil Co. v. State, 80 Okla. 52.) The delegation of such power to the city and its subsequent exercise of that power do not offend against any provision of the State Constitution. (Cleveland v. City of Watertown, 222 N. Y. 159; Schieffelin v. Hylan, 236 N. Y. 254; Bareham v. City of Rochester, 246 N. Y. 140; Gautier v. Ditmar, 204 N. Y. 20.)
   Per Curiam.

We agree with the courts below that the language of the enabling act impliedly authorized the city to impose the requirement of the deposit of the disputed tax and the posting of a bond as a condition of judicial review of the action of the local taxing authorities. We are also of opinion that the statute does not violate the provisions of the Constitution of the State invoked by the appellant.

The order should be affirmed, with costs.

Crane, Ch. J., O’Brien, Loughran, Finch and Rippey, JJ., concur; Lehman and Hubbs, JJ., dissent on the ground that under the enabling act such power was not conferred upon the city.

Order affirmed.