author: Crane, Ch. J. Rippey, J.

text:
    Edward Johnson et al., Appellants, v. Simon Etkin, as City Clerk and Clerk to the Council of the City of Schenectady, et al., Defendants, and Citizens’ Council for Proportional Representation of Schenectady et al., Respondents.

      Argued October 19, 1938;
    decided October 25, 1938.

      H. E. Blodgett for appellants.
    Plan “ C ” being a general law, cannot be changed, altered or repealed by Local Law under the Home Rule Amendment (N. Y. Const, art. 12) or the City Home Rule Law (Cons. Laws, ch. 76). (People ex rel. Shipston v. Thompson, 187 N. Y. Supp. 395; 196 App. Div. 923; 231 N. Y. 541;
      Matter of Klein v. Dalton, 245 N. Y. 537; Hughes v. Jenss, 258 N. Y. Supp. 515; Cleveland v. City of Watertown, 222 N. Y. 159; Browne v. City of New York, 241 N. Y. 96; Matter of McCabe v. Voorhis, 243 N. Y. 401; People ex rel. Purser v. Cahill, 119 Misc. Rep. 471; Matter of City of New York [Elm St.], 246 N. Y. 72; County Securities, Inc., v. Seacord, 278 N. Y. 34.) The petition containing the Local Law was prematurely filed. (Matter of Bass v. Board of Trustees, 226 App. Div. 165; People v. Norton, 59 Barb. 169; People v. Gardner, 45 N. Y. 812; Hebrew Orphan Asylum v. City of New York, 150 Misc. Rep. 299; Wingate v. Flynn, 139 Misc. Rep. 779; People ex rel. Purser v. Cahill, 119 Misc. Rep. 471.)

      James P. Boyle, William D. Smith and Hyman JSacharoff for Citizens’ Council for Proportional Representation of Schenectady, respondent.
    Under the Home Rule Amendment (N. Y. Const, art. XII, §§ 3, 5), and the City Home Rule Law (§. 19-a, L. 1924, ch. 363, as amd. L. 1937, ch. 479), the proposed Local Law is a valid enactment and permits the legal amendment of Plan “ C.” (Johnson v. City of New York, 274 N. Y. 411; Bareham v. City of Rochester, 246 N. Y. 140; Matter of Mooney v. Cohen, 272 N. Y. 33; Matter of Hood v. Eilert, 275 N. Y. 579.) The effect of the adoption of Plan “ C ” was the same as if the Legislature had enacted such plan as a special law for the city of Schenectady and, therefore, it could be amended as a charter provision, by section 19-a of the City Home Rule Law. (Matter of Mayor of New York [Elm St.], 246 N. Y. 72.)

      Harry G. Coplon for Schenectady Taxpayers’ Association, respondent.
    The Optional City Government Law (L. 1914, ch. 444, as amd.) does not in terms and in effect apply alike to all cities. (County Securities, Inc., v. Seacord, 278 N. Y. 34; Matter of Mayor of New York [Elm St.], 246 N. Y. 72.)

      Arlen T. St. Louis, Corporation Counsel, for Simon Etkin, as City Clerk and Clerk to the Council of the city of Schenectady, et al., defendants.
   Crane, Ch. J.

On November 6, 1934, the city of Schenectady adopted a simplified form of city government, known as Plan C, under chapter 444 of the Laws of 1914, as amended, also known as the Optional City Government Law. Plan C gives to the city six Councilmen and a Mayor to be elected by the voters of the city. Section 25 of this law (McKinney’s Unconsolidated Laws, book 65, p. 85) reads: “ Should any one ot the plans of government provided for in this act be adopted, the same shall continue in force and effect for the period of at least four years after the commencement of the terms of office of the officials elected thereunder, and no petition proposing a different plan shall be presented during a period of three years and six months after such adoption.” Section 38 makes the term of office of the Mayor and members of the Council under any of the plans four years. Section 87 reads: “All the legislative powers of the city, however conferred upon or possessed by it, are hereby vested in a board to be known as the Council of the city of -.’ * * * It shall be for all purposes the common council of the city.” Referring back to section 8, we find that all existing laws are continued in these words, “ Except insofar as any of its provisions shall be inconsistent with this act, the charter of the city, and all special or general laws applicable thereto, shall continue in full force and effect, until and unless superseded by the passing of ordinances regulating the matters therein provided for; but to the extent that any provisions thereof shall be inconsistent with this act, the same are hereby superseded.”

The Councilmen, elected pursuant to Plan C adopted, began their term of office January 1, 1936.

The City Home Rule Law (Laws of 1924, ch. 363, § 11, as amd.), enacted pursuant to article XII of the Constitution of the State, provided that the local legislative body of a city shall have power to adopt and amend local laws in relation to the property, affairs or government of the city relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of all officers and employees of the city, etc. We held in Matter of Mooney v. Cohen (272 N. Y. 33, 37) that the city legislative body, such as the Common Council in the present case, could amend the charter or revise the charter of the city in respect to these matters specified in the Home Rule Law. While this case dealt with a special act of the Legislature, yet we referred to section 20 of the City Home Rule Law which permitted a new charter to be adopted by the local legislative body of a city. This section reads: “ A new charter may be adopted by the local legislative body pursuant to the provisions of this chapter, and subject to the procedure prescribed by this chapter. A new charter may also be adopted in any city pursuant to the provisions of this section.” As this City Home Rule Law was enacted pursuant to power conferred by article XII of the Constitution of the State, known as the Home Rule Amendment, it cannot be inconsistent with the Optional City Government Law, as amended, and the provisions must be harmonized, if possible.

We conclude, therefore, that the Council of the city of Schenectady would have power to amend and modify its charter even though Plan C of the Optional City Government Law was in effect, and could adopt the proportional representation scheme for electing its officials. (Johnson v. City of New York, 274 N. Y. 411.)

The point is raised by the appellant that no local law can operate if it is contrary to an act of the Legislature relating to the property, affairs or government of cities, applying to all cities alike. It is claimed that as the Optional City Government Law gives to all the cities of the State the right to select any one of seven forms of government, that this is a general law within the meaning of the provision (§ 12, subd. 2) of the Home Rule Law. We do not so consider it. The Optional City Government Law is not binding upon all cities; only eight so far have chosen to come within it. It is optional. It may or may not become part of the city charters and is dependent for operation upon the electors of each city. This is not a general law, immediately effective and operative in all cities alike. It may operate in one city when adopted and not in another. Its effectiveness as a law — its force as a law is not general; it would only become general in effect when adopted by all cities in one form or another.

We, therefore, determine that the attempted amendment of the charter of the city of Schenectady by local law does not run counter to section 12, subdivision 2, of the City Home Rule Law.

By chapter 479 of the Laws of 1937, effective May 20, 1937, a new provision was added to the City Home Rule Law, known as section 19-a. Being too long to quote, I may summarize it by saying that a local law amending a city charter may be adopted in a manner therein provided. Qualified electors of a city in number equal to at least ten per centum of the total number of votes cast for Governor at the last gubernatorial election in such city may file in the office of the City Clerk a petition for the submission to the electors of the city of such a proposed local law to be set forth in full in the petition. The City Clerk shall transmit such proposed local law forthwith to the legislative body of the city. If this body fail to pass it or to submit it to the electors at the next general election, an additional petition may be filed with the Clerk signed by five per cent of the qualified voters who did not sign the original petition. Whereupon, the local law must be submitted to the voters at the next general election. The City Clerk must transmit it to the election officers charged with the duty of publishing the notice of such election. This law was complied with by the electors in the city of Schenectady.

On June. 30, 1938, there was filed with the City Clerk a petition, signed by more than ten per cent of the qualified voters, which proposed a local law changing the number of city Councilmen to nine and the method of selecting the Mayor. The terms of these officials were also shortened from four to two years. This proposed local law does not conflict with section 25 of the Optional City Government Law as the present officials will serve the four years under Plan C before the local law will go into effect, if adopted.

The Common Council having rejected the petition, an additional petition containing more than five per cent of the qualified voters was filed pursuant to this new section 19-a of the Home Rule Law, and the City Clerk is now 'required to transmit the proposed local law to the Election Commissioners of the county of Schenectady for submission at the next general election.

The plaintiffs here are taxpayers and they have brought this action to enjoin such submission, claiming, for the reasons above stated, that this proposed local law is or would be, if adopted, unconstitutional and that it also violates section 25 of the Optional. City Government Law in that it has been presented during a period of three years and six months after the adoption of Plan C. As to this latter objection we may say that this period of three years and six months has reference to a petition to change from one of the seven city plans to another, and not to a modification of the charter under the Home Rule Law. Furthermore, Plan C we hold was adopted at the election of November 6, 1934, and the time of three years and six months commenced to run from that date. The plaintiffs say that it commenced to run from the time the officials took office, January 1, 1936, but it will be noted that when the Legislature had reference to such date, it so stated; the four years, for instance, during which the officials shall hold office under Plan C is “ for the period of at least four years after the commencement of the terms of office of the officials elected thereunder.” (L- 1914, ch. 444, § 25.) ' This objection, therefore, made by the plaintiffs regarding the time limit is without validity.1

For these reasons the judgment below should be affirmed, without costs.

Rippey, J.

(dissenting). On June 30, 1938, under the assumed authority of the provisions of section 19-a of the City Home Rule Law (Laws of 1924, ch. 363, as amd. by Laws of 1937, ch. 479) a petition was filed with the City Clerk of the city of Schenectady, for submission to and adoption by the Council of that city of a local law to amend the charter of that city “ to provide for electing the Council by proportional representation, and for that purpose defining the method and manner of nomination, and election of Councilmen, the number of Councilmen, and their terms, and changing the method of selecting the Mayor.” In the event that the Council should not adopt the local law, the petitioners prayed that the question of its adoption be submitted to the electors of the city in the manner provided by the provisions of that section of the City Home Rule Law. The City Clerk transmitted the proposed local law to the Council. Upon the advice of the Corporation Counsel of the city and of the Attorney-General of the State that the proposed local law was in violation of and repugnant to the provisions of the Constitution and statutes of the State, or, at least, of doubtful legality, the Council denied the petition, and refused either to adopt the local law or submit the question of its adoption to the electors. Section 19-a provides for such a contingency. It reads: “If the said legislative body shall fail to pass such local law or to submit it to the electors of the city at the next general election held not less than sixty days after the legislative body votes to submit it, an additional petition filed with the clerk of the city at least two months and not more than four months after the filing of the original petition and signed by qualified electors who did not sign the original petition equal in number to five per centum of the total number of votes cast for governor at the last gubernatorial election in such city may require the submission of the local law at the next general election held not less than sixty days after the filing of such additional petition. When so required the city clerk shall transmit such proposed local law in the form in which it is to be submitted to the election officers charged with the duty of publishing the notice of such election. * * * ” Accordingly, on September 8, 1938, an .additional petition was filed with the City Clerk requiring the City Clerk to submit the proposed local law to the Commissioners of Election of the county and city of Schenectady for submission to the voters at the general election to be held on November 8, 1938. This action is brought to restrain further proceedings by the City Clerk and the election officers and the submission to the voters of the city of the question of the adoption of the local law.

By its terms, no part of the proposed local law may become effective until January 1, 1940, and it cannot be in full force until July 1, 1941. Its validity, if adopted, is now an abstract question and ordinarily would not be considered by the courts. But the power of the electorate to amend the charter in the manner proposed is challenged and is of immediate concern. In the public interest, the petitioners, as taxpayers, ask that the court take jurisdiction and not only consider the validity of the proceedings for the submission but the power of the electors to adopt the local law. The action will lie in the discretion of the court. The question here is one of prudence rather than one of power.” Jurisdiction to determine the validity of a law will be entertained where public interest demands and prudence requires even though the action would otherwise be premature and though abstract questions alone may be involved (Matter of McCabe v. Voorhis, 243 N. Y. 401, 412).

By chapter 444 of the Laws of 1914, the Legislature of the State of New York enacted a law providing for simplified forms of government for second and third class cities of the State known as “ the Optional City Government Law.” By chapter 407 of the Laws of 1935, this law became applicable to all cities of the State. Seven different plans of governmental structure were provided. Each plan was complete in itself. The city of Schenectady adopted on November 6, 1934, one of the authorized plans designated as “ Plan C,” which provided for the election, compensation, terms of office and powers and duties of the Mayor and Counqil, for the number of Councilmen to be elected and for an appointive City Manager whose duties and powers were likewise therein defined. The new plan bécame effective January 1, 1936. A Mayor and a Council, consisting of six Councilmen at Large, were elected in November, 1935, one-half for the term of two years, each expiring on December 31, 1937, and one-half for four years, each expiring on December 31, 1939, as provided in section 38. That section further provided for the election of Councilmen thereafter to take office for terms, respectively, of four years each as the terms of Councilmen might respectively expire. Three Councilmen were elected in November, 1937, in place of those whose terms expired December 31, 1937. The term of the Mayor was at all times to be four years. Thus the terms of three Councilmen expire on December 31, 1941, and of the Mayor and three Councilmen on December 31, 1939. All of these officers were nominated and elected as provided in the general election law.

Section 2 of the proposed local law provides for the election of nine Councilmen by the method of proportional representation as provided in the local law and for the selection of a Mayor from their own number, and section 3 for the shortening of the terms of the Mayor and three Councilmen to be elected in November, 1939 to two years. Section 3 of the proposed local law reads as follows:

“ Section 3. Terms of mayor and council.

“ a. The terms of the mayor and of members of the council of the City of Schenectady shall be two years; provided however that the terms of the councilmen elected in the year one thousand nine hundred thirty-seven shall not be shortened.

“b. The terms of the mayor and councilmen to be elected in the year one thousand nine hundred thirty-nine are hereby shortened to two years and their terms shall end concurrently with the terms of the councilmen elected in the year one thousand nine hundred thirty-seven, at the end of the year one thousand nine hundred forty-one.”

Thus, the proposed local law not only changes and shortens the term of office of officials to be elected under the provisions of the Constitution and laws of the State but additionally provides for a radically different governmental form and structure than now exists in the city. It provides for a form and structure not authorized in terms or effect by the provisions of the Optional City Government Law. It provides for the election of its administrative and legislative officers in a manner not authorized by the Constitution or laws of the State in effect at the time of the enactment of the Optional City Government Law. That law has in no respect been amended in a way to authorize the adoption of the local law in question.

It is asserted by the respondent, Citizens’ Council for Proportional Representation, that Under this local law it will be seen that Plan ‘ C ’ will continue to operate unchanged (except that the terms of office of councilmen and mayor elected in 1939, are shortened to two years), until January 1, 1942 — six years after Plan ‘ C ’ began to operate in Schenectady. This works no change whatever in Plan ‘ C ’ form of government except that there will be eight councilmen and a mayor instead of six councilmen. The structure of the government is not changed and Plan ‘ C ’ continues in operation as before with this difference — that a more representative method of electing the council is afforded; moreover, while the term of the councilmen is reduced to two instead of four years, as under the present provisions of Plan ‘ C,’ this shortening of the term of the councilmen from four to two years in no manner affects councilmen now in office, and the councilmen and mayor to be elected next year have notice of the shortening of the term before they run for office.”

I cannot agree with any such contention. By the express terms of the local law it amends Plan C.” There is no provision in the Optional City Government Law which gives the city the power to amend any one of the plans set up. It had the power to adopt one of the plans named by the Legislature. It could not change the plan or enact any plan. The Legislature enacted the plans. The city could only adopt one of the plans thus enacted. The city may change to another specified plan or reject entirely the one which it has adopted. In section 25 of the act it is provided that “ the same shall continue in force and effect for the period of at least four years after the commencement of the terms of office of the officials elected thereunder, and no petition proposing a different plan shall be presented during a period of three years and six months otter such adoption.” Section 3 of the act provides that any city which shall adopt, in the manner hereinafter prescribed, one of the methods of government provided in this chapter, shall thereafter be governed by the provisions hereof.” It could not amend and continue to operate under Plan C.”

Authority to provide for the structure of city government, if any exists, must be found in the Constitution (Bareham v. City of Rochester, 246 N. Y. 140). By the mandate of article XII of the Constitution of the State of New York and within the authority thereby conferred, the Legislature of the State enacted the City Home Rule Law (Laws of 1924, ch. 363), which took effect on April 25, 1924, and its amendment by section 19-a (Laws of 1937, ch. 479, effective May 20th of that year). It was a general law applicable to all cities alike (Bareham v. City of Rochester, supra). It is no less a general law because it was not immediately effective and operative in all cities ” of the State at the same instant, or because all cities have not taken advantage of and legislated under its provisions in relation to their property, affairs or government and the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of all their officers and employees, or because it is optional by its terms whether any city shall proceed to legislate under it, or because it is not binding upon all cities because only a few have elected to act under the authority which it confers (59 C. J. pp. 734, 735; §§ 320-322, 353). General applicability of a statute must depend not alone upon whether it is general in its terms, but also upon whether it is general in its effect (Matter of Mayor of New York [Elm St.], 246 N. Y. 72).

No less general is the Optional City Government Law (Laws of 1914, ch. 444, as amd. by L. 1935, ch. 407). It is a general law by its express terms (§ 2); it is likewise general in effect. At least four times this court has unanimously held the act to be a general law (Cleveland v. City of Watertown, 222 N. Y. 159; People ex rel. Ferguson v. Traman, 222 N. Y. 586; People ex rel. Shipston v. Thompson, 231 N. Y. 541; Matter of Klein v. Dalton, 245 N. Y. 537). In the first, second and fourth cases Plan C was adopted in the cities of Watertown, Niagara Falls and Long Beach. In the Shipston case a proposal was made for the adoption of Plan F in the city of Niagara Falls. No one involved in this litigation has suggested that it is not a general law. All parties rely upon the previous decisions of this court to the effect that it is a general law. The act has to do with the form and structure of city government generally in all cities of the State. The effect of the act is general. The fact that all second class cities of the State did not elect at the same time or have not heretofore elected to adopt Plan C or any other of the specific plans therein provided or some one or more of the several designated plans does not make the statute special rather than general. Its special or general character cannot be made to depend upon considerations extraneous of the law itself and of the Constitution. If that were not so as to every statute, the generality of its application would depend, not upon the legislative act or the legislative intent, but rather upon the whim and caprice of individuals or of bodies other than the Legislature which enacted it. Under such conditions, every statute would depend upon what was done under it; it would result in confusion in construction and application; the effect of such a rule would be intolerable.

Authority to enact the local law in question must be found in article XII of the Constitution and in the City Home Rule Law enacted by the Legislature of the State for the purposes of carrying out its provisions or it cannot be found at all. A local law, such as the one in question, may be adopted by a city under the provisions of article XII and of the City Home Rule Law (Matter of Mooney v. Cohen, 272 N. Y. 33; Johnson v. City of New York, 274 N. Y. 411) if the provisions thereof are open for use by the city. However, the provisions of the City Home Rule Law are not available to the city of Schenectady for the purposes of enactment of the local law in question. Section 7 of article XII of the Constitution provides, among other things, that “ The provisions of this article shall not affect any existing provision of law; but all existing charters and other laws shall continue in force until repealed, amended, modified or superseded in accordance with the provisions of this article.”

The Optional City Government Law is not expressly repealed by the City Home Rule Law, nor could it be repealed by implication (City Home Rule Law, § 33). On the contrary, it is confirmed by section 36 (Hughes v. Jenss, 268 N. Y. Supp. 515; Matter of McLean v. Boyd, 140 Misc. Rep. 218; Matter of Klein v. Dalton, supra). Section 19-a of the City Home Rule Law conveys no , power to enact. It relates only to matters of procedure.

Furthermore, the Optional City Government Law, being a general law, cannot be superseded or modified by a local law. “A law which affects the State at large is not subject to change by a local law although the State law may affect a city in its ‘ property, affairs or government.’ ” (Per Hubbs, J., in County Securities, Inc., v. Seacord, 278 N. Y. 34, 38.) It is so provided in subdivision 2 of section 12 of the City Home Rule Law.

In view of what has been said above, it is unnecessary to pursue the discussion further or take up other questions that have been raised in this proceeding.

The judgment appealed from and the judgment of the Special Term should be reversed and the matter remitted to Special Term with directions to proceed in accordance with the prayer for relief specified in the complaint, with costs in all courts.

Lehman, O’Brien, Htjbbs, Lotjghran and Finch, JJ., concur with Crane, Ch. J.; Rippet, J., dissents in opinion.

Judgment affirmed.


source: Caselaw Access Project

author: Crane, Ch. J.

license: Public Domain

text:
    Jacob Rueffer et al., Respondents, v. Department of Agriculture and Markets of the State of New York et al., Appellants.
    Argued October 12, 1938;
    decided October 25, 1938.

      John J. Bennett, Jr., Attorney-General (Robert G. Blabey and Henry Epstein of counsel), and Milo R. Kniffen for appellants.
    The statute (Agriculture & Markets Law, Cons. Laws, ch. 69, art. 16-A, as amd. L. 1937, ch. 579) applies to interstate truckers and since the plaintiffs are trucking coal into the State for sale within the State it applies to them. (Connelly v. Department of Agriculture & Markets, 162 Misc. Rep. 73; Pavlick v. Department of Agriculture & Markets, 164 Misc. Rep. 42; Koehler v. Department of Agriculture & Markets, 164 Misc. Rep. 44; Bullock v. Cooley, 225 N. Y. 566; Town of Amherst v. County of Erie, 260 N. Y. 361; United States v. Falk & Bro., 204 U. S. 143; United States v. Safety Car Heating & Lighting Co., 297 U. S. 88.) The last sentence of the separability clause (L. 1937, ch. 579, § 8) does not suspend the operation of the statutory provisions respecting interstate truckers. (South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177; Kelly v. Washington, 302 U. S. 1.)

      Walter Gordon Merritt and Robert R. Bruce

    for New York State Retail Solid Fuel Merchants’ Association, Inc., amicus curice. Section 8 of chapter 579 of the. Laws of 1937 does not suspend the operation of the substantive provisions of article 16-A with respect to interstate truckers of coal, but on the contrary indicates that those provisions are applicable to interstate truckers to the extent permissible under the Federal Constitution and laws. (Rohrer v. Milk Control Board, 322 Penn. St. 257; South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177; Kelly v. Washington, 302 U. S. 1; Mintz v. Baldwin, 289 U. S. 346; Reid v. Colorado, 187 U. S. 137.) The Legislature has the power to adopt inspection laws applicable to persons hauling coal in interstate commerce; and it is, therefore, an unreasonable construction of the statute to say that the Legislature intended those provisions to become operative only when Congress passed an enabling act. (Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345; New Mexico v. Denver & Rio Grande R. R. Co., 203 U. S. 38; Pure Oil Co. v. State of Minnesota, 248 U. S. 158; Mintz v. Baldwin, 289 U. S. 346; Merchants Exchange v. State of Missouri, 248 U. S. 365; Asbell v. Kansas, 209 U. S. 251; Reid v. Colorado, 187 U. S. 137.)

      Harry S. Travis for respondents.
    Article 16-A of the Agriculture and Markets Law in so far as the same was applied to interstate transportation of coal was an illegal application of the law. (New State Ice Co. v. Liebmann, 285 U. S. 262; People v. Buffalo Fish Co., 164 N. Y. 93; People v. Bootman, 180 N. Y. 1; People v. Fargo, 137 App. Div. 727; Michigan Public Utilities Comm. v. Duke, 266 U. S. 570; People v. Ringe, 197 N. Y. 143.)
   Crane, Ch. J.

Article 16-A of the Agriculture and Markets Law (Cons. Laws, ch. 69) provides for the weighing and selling of coal, coke and charcoal. Section 197-a reads as follows:

§ 197-a. Sale of coal and coke. Coal and coke shall be sold by weight. No person shall sell or deliver, or attempt to sell or deliver, or offer to sell or deliver, or start out for delivery less than two thousand pounds by weight to the ton of coal or coke, or a proper proportion thereof in quantities less than a ton, and such coal or coke shall be duly weighed by a licensed weighmaster of the state of New York, on stationary scales, suitable for weighing the tare and gross weights of the vehicles transporting the coal or coke, located in the state of New York which have been tested and sealed by the official charged with such testing. A tolerance at the rate of thirty pounds to the ton shall be allowed for unavoidable wastage and unavoidable variation in scales.”

No delivery of coal is permitted without each lot being accompanied by a weight ticket of a licensed weighmaster of the State of New York, giving the name and address of the purchaser, the seller and the date when weighed, and the full signature of the licensed weighmaster by whom weighed.

Section 197-g is as follows: Every driver of a motor truck bringing coal or coke into the state of New York from outside the state of New York for sale and delivery within the state, shall upon entering the state, proceed forthwith, before delivery of the load of coal or coke, to the nearest available stationary scales suitable for weighing the tare and gross weights of the vehicle, to the place or places of each delivery, to have the coal or coke weighed by a duly licensed weighmaster in accordance with the-requirements of this article.”

A certificate of origin containing certain specified information must also be filed for coal brought into the State by motor truck.

By the Laws of 1937, chapter 579, section 8, in effect May 23, 1937, the following was added to this law: If any clause, sentence, paragraph or part of such sections, as amended or added, as the case may be, by this act shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, or part thereof, directly involved in the controversy in which such judgment shall have been rendered. No provision of such sections shall apply or be construed to apply to foreign or interstate commerce, except in so far as the same may be effective pursuant to the United States constitution and to the laws of the United States enacted pursuant hereto.”

The plaintiffs are engaged in interstate commerce, hauling coal from the State of Pennsylvania into this State, and the plaintiff Rueffer has been granted an interstate carrier’s license by the Interstate Commerce Commission. ^ They have brought this action to enjoin the Commissioner of Agriculture and Markets from enforcing this Jaw as contained in article 16-A, upon the sole ground that it is not applicable to the plaintiffs for the reason that it has not been made effective, pursuant to the United States Constitution, or by any act of Congress. The lower courts have sustained them in this interpretation of the act, the Appellate Division by a divided court. The constitutionality of the act, that is, whether it is an unlawful interference with interstate' commerce, is not questioned or involved on this appeal.

That the State may, under the police power, enforce certain rules and regulations governing the entrance of goods and merchandise into the State, is well established. Inspection of the goods or merchandise to ascertain its kind, quality or weight has frequently been provided for, and rules and regulations ■ are sustained until such time as Congress may act in the matter and supersede them by more uniform laws. If the regulations prescribed by the State are unreasonable or undue interference with interstate commerce, then, of course, they become illegal. Therefore, these provisions of this act, providing for the inspection of coal entering the State to insure its correct weight, and the other matters required, until shown to be unreasonable and without the police, power, are lawful requirements. (Kelly v. Washington ex rel. Foss Co., 302 U. S. 1; South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U. S. 177.) That they are reasonable is not questioned upon this appeal, and the matter is not before us for decision.

We place a different interpretation upon chapter 579 of the Laws of 1937 than has been given by the other courts. The Department of Agriculture has heretofore construed this statute as applicable to interstate truckers, as evidenced by the following cases: Connelly v. Department of Agriculture & Markets ([1937] 162 Misc. Rep. 73); Pavlick v. Department of Agriculture & Markets ([1937] 164 Misc. Rep. 42); Koehler v. Department of Agriculture & Markets ([1937] 164 Misc. Rep. 44); and under date of October 21, 1936, the Attorney-General delivered an opinion that it applied to coal entering the State of New York by motor trucks (1936 Opinions of Attorney-General, p. 265). When, therefore, the Legislature passed this act of 1937, containing the matter in question, it had before it not only the practice but the interpretation of the law. It is clear that the intention was to have it apply to coal coming by trucks over the border; in fact, the act says so distinctly. Many of its provisions would be meaningless unless it were so interpreted.

This new provision of 1937 was an expression of an intention upon the part of the Legislature not to interfere in any way with the plaintiffs’ constitutional rights; that the act was to apply only in so far as it was legal under the Constitution and acts of Congress; that it was a regulation within the police power of the State, having no effect at all if it were contrary to the laws of Congress, or an unreasonable interference with interstate commerce. The words are, No provision of such sections shall apply or be construed to apply to foreign or interstate commerce, except in so far as the same may be effective pursuant to the United States constitution * * This, indeed, is plain, for it is not to be assumed that the United States Constitution was thereafter to be changed to meet the State law. The other words, and to the laws of the United States enacted pursuant hereto,” have the same meaning. The law shall not be construed to apply if it is in conflict with an act of Congress. The Legislature did not expect that Congress would pass a law giving validity to a State law.

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

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

Judgments reversed, etc.


text:
    Ida Siegelbaum, Appellant, v. Victor J. Dowling et al., as Receivers of the Interborough Rapid Transit Company, Respondents.
    Submitted October 24, 1938;
    decided October 28, 1938.

      Henry H. Sternberg for motion.

      James Hess opposed.
   Crane, Ch. J.

In January of 1938 this court decided in Gibbs v. Home Ins. Co. (277 N. Y. 529) that it had no power to dispense with the undertaking on appeal required by section 593 of the Civil Practice Act in a case where the plaintiff desired to prosecute as a poor person. Thereafter chapter 31 of the Laws of 1938 amended section 558 of the Civil Practice Act by providing that A poor person appellant or respondent shall not be required to pay any fees, to furnish an undertaking to perfect an appeal or to print either the record or points on appeal but may submit the same in typewriting with such number of legible copies as shall furnish each appellate judge or justice with one copy thereof.”

A poor person referred to in this section is one who has been allowed to sue or defend as a poor person.

We turn to section 198-a to ascertain the procedure: “Leave to prosecute or defend as a poor person during the progress of an action or special proceeding. Leave to prosecute or defend as a poor person may be granted at any stage of an action or special proceeding including any appeal therein, notwithstanding no leave was applied for or granted to prosecute or defend, as the case may be, prior to or at the commencement of such action or special proceeding.”

A poor person by section 199 shall be a person who is not worth three hundred dollars in cash or available property besides the wearing apparel and furniture necessary for himself and his family.

According to these provisions, a person who has been allowed to sue as a poor person by the courts below is not obliged to give the undertaking required by section 593 of the Civil Practice Act. Where the case is in this court and a party has not been permitted to sue as a poor person, application must be made to this court for an order permitting such person to appear and prosecute or defend as a poor person, and when such order is granted, such poor person has the privileges mentioned in section 558 of the Civil Practice Act which includes the waiver of undertaking.

Application cannot be made to this court to do away with the undertaking on appeal simply because the person is too poor to give the undertaking. The application must be made for leave to prosecute as a poor person upon proof of the facts prescribed by section 199 of the Civil Practice Act.

Attention should be drawn to section 196 regarding the rights of attorneys appearing for poor persons: “ § 196. Leave to sue as a poor person. A poor person whether an adult or infant not being of ability to sue who alleges that he has a cause of action against another person or the right to bring a special proceeding may, by order of the court, prosecute as a poor person and have an attorney assigned to conduct his action or proceeding. The attorney so assigned must act without compensation except that if a recovery is had the court may allow such attorney a reasonable sum for his services and taxable disbursements.”

Also attention should be drawn to section 198 applying to defendant: “ § 198. Leave to defend as a poor person. A defendant in an action or special proceeding involving his right, title or interest in or to real or personal property may petition the court in which the same is pending for leave to defend as a poor person and to have an attorney assigned to conduct his defense.”

The application made in this case to permit an appeal without giving the undertaking on appeal because the plaintiff cannot afford it-should be denied for the reasons here stated.

Lehman, O'Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Motion denied.


text:
    James R. Leal et al., Appellants, v. Westchester Trust Company, in Liquidation under George W. Egbert, as Superintendent of Banks of the State of New York, Respondent.

      Argued October 11, 1938;
    decided November 29, 1938.

      Dorothea Genzlinger for appellants.
    The relationship existing between appellants and respondent was not that of debtor and creditor but that of principal and agent and was fiduciary in character. (Matter of Prudence Co., 10 Fed. Supp. 41; 79 Fed. Rep. [2d] 77; Lafayette Trust Co. v. Beggs, 213 N. Y. 280.) Because the relationship existing between the parties was not that of debtor and creditor there was no obligation upon the appellants to comply with the requirements of sections 72 to 76 of the Banking Law (Cons. Laws, ch. 2) in order to establish their claim. (Matter of Prime, 249 App. Div. 28; Buck v. Westchester Trust Co., 250 App. Div. 877; Matter of Gerbereux, 274 N. Y. 495; Matter of International Milling Co. [Broderick], 259 N. Y. 77.) The Superintendent of Banks, through his agents, servants or employees, was negligent in the discharge of his duties as liquidator and the assets of the bank in his hands are hable for the damages suffered as a result of such negligence. (Matter of Union Bank, 204 N. Y. 313; Lafayette Trust Co. v. Beggs, 213 N. Y. 280; Yokohama Specie Bank, Ltd., v. Chinese Merchants Bank, 219 App. Div. 256; Mechanics & Metals Nat. Bank v. Banque Industrielle, 205 App. Div. 543; Hartmann v. Schnugg, 113 App. Div. 254; 188 N. Y. 617; Barile v. Wright, 256 N. Y. 1; Great Northern R. Co. v. Oakley, 135 Wash. 279; Robinson v. N. Y. & S. I. El. Co., 99 App. Div. 509; Klein v. N. Y. T. & M.

      Co., 155 Misc. Rep. 513; Camp v. Barney, 4 Hun, 373; Cardot v. Barney, 63 N. Y. 281; Bereth v. Sparks, 51 Fed. Rep. [2d] 441; Brown v. Winterbottom, 98 Ohio St. 127; McNulta v. Lochridge, 141 U. S. 327; Cox v. Stone, 146 La. 81; Morris v. Hiler, 57 How. Pr. 322.) There is no defect of parties defendant and respondent is the proper party to be sued. (City of Mount Vernon v. Best Development Co., 268 N. Y. 327; McNulta v. Lochridge, 141 U. S. 327.)

      John Preston Phillips and Gerald Donovan for respondent.
    The complaint does not state facts sufficient to constitute a cause of action against the defendant. (Zuroff v. Westchester Trust Co., 273 N. Y. 200; Matter of Hering, 196 N. Y. 218; McKuskie v. Hendrickson, 128 N. Y. 555; McCluskey v. Cromwell, 11 N. Y. 593; People v. Woodruff, 32 N. Y. 355; Seeley v. Clark, 78 N. Y. 220; Schwarz v. Broderick, 269 N. Y. 610; Matter of Bank of United States, 269 N. Y. 578; Matter of Egan, 258 N. Y. 334; Van Tuyl v. Scharmann, 208 N. Y. 53; Matter of Societa v. Broderick, 260 N. Y. 260; Matter of Prime, 249 App. Div. 28; Matter of International Milling Co. [Broderick], 259 N. Y. 77; County Trust Co. v. Mara, 242 App. Div. 206; 266 N. Y. 540.) The acts of the Superintendent alleged in the complaint do not constitute a cause of action against the defendant, regardless of sections 72 and 76 of the Banking Law. (Varick Springs Corp. v. Bank of United States, 264 N. Y. 297; Ruppert Realty Corp. v. Bank of United States, 156 Misc. Rep. 93; 249 App. Div. 721; 276 N. Y. 629.) If the Superintendent of Banks undertook to make an agreement continuing the agency and control of the premises theretofore managed by the trust company he acted outside of his duties as liquidator and upon his own responsibility, and if any liability arose out of said agreement it was his individual liability. (Meyer v. Lexow, 1 App. Div. 116; Vilas v. Page, 106 N. Y. 439.)
   Crane, Ch. J.

The appeal relates to the sufficiency of the complaint, as it was dismissed upon motion.

The plaintiffs are the owners as tenants in common of No. 617 Van Cortlandt Park avenue, situate in the city of Yonkers, New York. During the month of April, 1933, they appointed the Westchester Trust Company their agent to manage this property, and the company undertook and fulfilled its duties as such agent until the second day of January, 1934, when it was taken over by the Superintendent of Banks for the purposes of liquidation. After these recitals in the complaint, paragraph four becomes important enough to quote in full:

“ Fourth. That Joseph A. Broderick, as Superintendent of Banks of the State of New York, in charge of Westchester Trust Company in Liquidation, as aforesaid, continued the agency and in control of the aforesaid premises until the 13th day of December 1934, when said agency and the powers and duties connected therewith on the part of Westchester Trust Company was terminated by plaintiffs.”

The complaint then continues with a description of this property, as apartments occupied by tenants who quitted. and vacated some time after the Superintendent of Banks took charge. The plaintiff further alleges that through the neglect and carelessness of the Westchester Trust Company in liquidation during the winter months of 1934, the water pipes in the premises, thus left vacant, froze and burst, flooding the cellar, the plumbing system and the heating apparatus, causing damage; that even the windows in the premises were not closed during this period.

We believe this complaint to state a good cause of action. The courts below were of the opinion that section 72 (now § 620, subd. 1) of the Banking Law (Cons. Laws, ch. 2) was applicable and that, as the complaint did not allege compliance therewith, it was defective. This section provides that, when the Superintendent shall have taken possession of a trust company, he shall notify all persons who have claims against the corporation to present the same to him and make proper proof thereof within four months from the date of said notice. He shall cause said notice to be mailed to all persons whose names appear as creditors upon the books of the corporation and shall also cause the notice to be inserted weekly in the newspapers for three consecutive months. He shall have no power to accept any claim presented after the date specified in such notice as the last date for presenting claims.

The Banking Law, by section 76 (now § 625), prohibits the maintenance of any action against the bank while the Superintendent is in possession of its affairs unless the plaintiff alleges and proves that the claim was duly filed, that eighty days have elapsed since the expiration of the time for filing, and that the claim was rejected.

It would seem as if section 72, by its very terms, did not and could not apply to those causes of action arising against the Superintendent of Banks or the bank in liquidation, after the Superintendent had taken possession and was gathering in the assets. These provisions of the Banking Law apply to the creditors existing at the time the Superintendent assumes control. He is to give notice to the creditors whose names appear upon the books, and advertise in the papers for any possible claimants whose names do not appear upon the books. No claim which arose against the Superintendent long after the time to present claims had expired was covered by these sections. The Legislature could not command the impossible. In this case the Westchester Trust Company went into liquidation on the 2d of January, 1934. The cause of action or claim arose about a year later, in October and December of 1934. The complaint, therefore, is not defective in this particular — for failure to allege compliance with the requirements of section 72 of the Banking Law.

The complaint states that the Banking Superintendent continued the agency of the bank, or the contract of employment, regarding the care of this property; continued the control over the apartments by the Westchester Trust Company during the times it was alleged the negligence occurred. This he could legally do in the performance of his duties as liquidator. In order to conserve the assets of the corporation and bring about the best results for creditors, the Superintendent could, in the exercise of good judgment, complete certain undertakings or continue certain employments. That he was not obliged immediately to terminate all activities, close the bank and end all contracts or obligations, is apparent from the authority given him by section 61-a (now § 610). This says that a Superintendent in his . discretion may permit a corporation of which he has taken possession, or which he is operating on a restricted basis, pursuant to regulations promulgated, to resume business in accordance with a plan of reorganization.

The bank was not finally divested of its property when the Superintendent took it over. He had supervision of its affairs. The ordinary functions of the managers of the corporation were suspended, and the liquidator, in the meanwhile, acted in their stead. (Lafayette Trust Co. v. Beggs, 213 N. Y. 280; Isaac v. Marcus, 258 N. Y. 257; City of Mount Vernon v. Best Development Co., 268 N. Y. 327.) The Superintendent was merely managing temporarily the affairs of the company, and his custody was not intended to terminate the corporate existence nor to end its business. (Mechanics & Metals Nat. Bank v. Banque Industrielle de Chine, 205 App. Div. 543, p. 545.) This court, in the Isaac case, said: “ In him [the Superintendent] the Legislature has vested not only broad powers but broad discretion ” (p. 264). Section 69 (now § 618) of the Banking Law confers this power. The Superintendent is authorized, upon taking possession of the property and business of such corporation, to liquidate the affairs thereof and to do all acts and to make such expenditures as in his judgment are necessary to conserve its assets and business.

When the Superintendent assumed control of the Westchester Trust Company, he was faced with a situation which called for the exercise of his best judgment and discretion. To preserve its assets or to afford an opportunity for reorganization, he might very well have considered it advisable to continue in possession of the plaintiff’s property, collect the rents and make the commission. The complaint alleges that the Superintendent did this, continued the agency and the control of the property.

The respondent insists, however, that if the Superintendent of the bank in liquidation was negligent, the action must be against the Superintendent personally and not against him as Superintendent. This all depends upon the nature of the claim. Acts done or expenses incurred in good faith and in the interests of the creditors or the corporation, but resulting in loss, may be allowed out of the assets of the corporation. A receiver, as such, is liable for torts committed by him or Ms employees m the administration of the receiversMp to the same extent as other persons and damages awarded therefor are to be regarded as part of the receiversMp expense. (Robinson v. New York & Staten Island Electric Co., 99 App. Div. 509; Camp v. Barney, 4 Hun, 373; Cardot v. Barney, 63 N. Y. 281; Bereth v. Sparks, 51 Fed. Rep. [2d] 4:41) Great Northern Ry. Co. v. Oakley, 135 Wash. 279.)

The defendant in tMs case is the Westchester Trust Company in liquidation under George W. Egbert, as Supermtendent of Banks of the State of New York. The objection is made that the defendant should be the Superintendent of Banks. TMs is a matter of little consequence as the defendant in reality is the Superintendent of Banks m control of the Westchester Trust Company in liquidation. The Supermtendent may prosecute and defend any and all actions in liquidation proceedings in the name of the corporation. (Banking Law, § 71 [now § 619].) The Banking Law also recognizes that even after the Superintendent has assumed control, and the time to present claims has started to run or even expired, an action may be maintained against the corporation. The form or description of the party defendant is immaterial, provided it be the bank in liquidation or the Superintendent, the liquidator. (See McNulta v. Lochridge, 141 U. S. 327, 332, where it was held to be sufficient if a corporation was sued by name “ in the hands of ” or “ in the possession of ” a receiver.)

The judgments should be reversed, with costs in all courts, and the motion to dismiss the complaint denied, with ten dollars costs. (See 279 N. Y. 789.)

O'Brien, Hubbs, Lottghran and Finch, JJ., concur; Lehman and Rippey, JJ., dissent.

Judgments reversed, etc.


text:
    Ollendorff Watch Co., Inc., et al., Respondents, v. Louis H. Pink, as Superintendent of Insurance of the State of New York, Appellant.

      Argued October 13, 1938;
    decided November 29, 1938.

      John J. Bennett, Jr., Attorney-General (Leonard M. Gardner and Henry Epstein of counsel), for appellant.
    The watch company receives a “ premium ” for each certificate issued to purchasers of its watches. (Herbert v. Shanley Co., 242 U. S. 591; Palmetto Fire Ins. Co. v. Conn, 272 U. S. 295; Barna v. Clifford Country ]Estates, Inc., 143 Misc. Rep. 813; Hunt v. Public Mut. Ben. Foundation, 94 Fed. Rep. [2d] 749.) A promise by an indemnitor to pay money in the event of loss is not an essential of an insurance contract. (People v. Roschli, 275 N. Y. 26; Barna v. Clifford Country Estates, Inc., 143 Misc. Rep. 813; People v. Standard Plate Glass & Salvage Co., 174 App. Div. 501; Attorney-General v. Osgood Co., 249 Mass. 473; Commonwealth v. Provident Bicycle Assn., 178 Penn. St. 636; Commonwealth v. Fidelity Land Value Assur. Co., 312 Penn. St. 425; Ruto v. Italian Burial Casket Co., 104 Pa. Sup. Ct. 288.) The certificates issued by the watch company are contracts of insurance in form and substance. (People v. Roschli, 275 N. Y. 26; State of Ohio ex rel. Duffy v. Western Auto

      Supply Co., 134 Ohio St. 163.) The watch company, by engaging in other activities in addition to the issuance of its watch insurance certificate, is not relieved of the necessity for complying with section 9 of the Insurance Law (Cons. Laws, ch. 28). (People v. Roschli, 275 N. Y. 26; Attorney-General v. Osgood Co., 249 Mass. 473.)

      P. C. Dugan, Otto A. Samuels and William J. Moran for respondents.
    The watch company is not transacting any business of insurance by the delivery of an agreement with the owners of its watches to replace a watch if stolen. ( Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y. 153; Tyler v. New Amsterdam Fire Ins. Co., 4 Robt. 151; Matter of O’Neill, 143 Misc. Rep. 69; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452; Commonwealth v. Provident Bicycle Assn., 178 Penn. St. 636; Stern v. Rosenthal, 71 Misc. Rep. 422; People ex rel. Woodward v. Rosendale, 142 N. Y. 126; People ex rel. Daily Credit Service Corp. v. May, 162 App. Div. 215; 212 N. Y. 561; U. S. Fidelity & Guaranty Co. v. Highway Engineering Co., 51 Fed. Rep. [2d] 894; Matter of Fire Certificate, 39 Pa. County Ct. 163; Cole Bros. & Hart v. Haven, 7 N. W. Rep. 383; Evans & Tate v. Premier Refining Co., 31 Ga. App. 303; Colaizzi v. Pennsylvania R. R. Co., 208 N. Y. 275; State v. Towle, 80 Me. 287.) The question, “ Does the delivery of said certificates and agreements by the Ollendorff Watch Co., Inc., to the owners of its watches violate section 9 of the Insurance Law of the State of New York,” was properly answered in the. negative and the judgment entered accordingly should be affirmed. (Hewin v. City of Atlanta, 121 Ga. 735; People v. Gillson, 109 N. Y. 389; People ex rel. Madden v. Dycker, 72 App. Div. 308; People ex rel. Appel v. Zimmerman, 102 App. Div. 103.) Nothing was regarded as premium by the parties to the agreement to replace a watch. The watch had a sales price and no charge was added thereto for such agreement. (Philpot v. Gruninger, 81 U. S. 570; Fire Ins. Assn. v. Wichham, 141 U. S. 564; McGovern v. City of New York, 234 N. Y. 377; Beck v. Sheldon, 259 N. Y. 208.)
   Crane, Ch. J.

This case was presented to the Appellate Division upon an agreed statement of facts, seeking an answer to this question: “ Does the delivery of said certificates and agreements by the plaintiff, the Ollendorff Watch Co., Inc., to the owners of its watches violate Section 9 of the Insurance Law [Cons. Laws, ch. 28] of the State of New York? ”

Section 9, so far as applicable, provides that no corporation nor any individual shall transact the business of insurance within this State without the certificate of the Superintendent of Insurance certifying under his hand and seal that the corporation or individual has complied with all requirements of law authorizing it to transact insurance business.

The Ollendorff Watch Co., Inc., is a domestic corporation selling watches as well as other merchandise. The agreed statement contains an extract from the certificate of incorporation. Since October, 1930, the company has been delivering a certificate and agreement to the purchaser of a watch, in which the company agrees to replace such watch with a new watch of like quality and value, provided the first watch is lost within one year from the date of purchase in the United States or Canada through burglary or robbery. The agreed statement in paragraph VI reads as follows:

“ VI. That the said plaintiff, Ollendorff Watch Co., Inc., adds no charge to the sales price of its watches for the aforesaid certificates and agreements. The cost of the insurance policy numbered SPL-1889577 is borne by Ollendorff Watch Co., Inc., out of its corporate income from various sources including the sales of watches and is charged on its books as an item of expense incident to the business in which it is engaged.”

The insurance poficy referred to in this paragraph relates to the Travelers Indemnity Company, a Connecticut corporation which insures the Ollendorff Watch Co., Inc., against all losses sustained by reason of these replacement agreements with its customers. Does this constitute carrying on the insurance business by the OHendorff Watch Co., Inc.? This goes further than a guaranty or warranty. For instance, a warranty would relate in some way to the nature or efficiency of the product sold — in this case, that the watch would work or was of a certain make and fineness. A warranty would not cover a hazard having nothing whatever to do with the make or quafity of the watch. A guaranty is an undertaking that the amount contracted to be paid wifi be paid, or the services guaranteed will be performed. It relates directly to the substance and purpose of the transaction.

This contract goes much further. It has nothing whatever to do with the sale of the watch or the contract of sale. It is an extraneous inducement to procure sales. If the watch is stolen the seUer will replace it. In other words, he takes a chance or a risk of theft from his customers ; that is, he insures them for a year against such risk.

. As this transaction presents itself to the mind, it is not so apparent as it would be if the principle were applied to other things. In this day it is not an unusual thing for speculators to put up hundreds of model houses in a development. Could the builder, in selling the house, agree that if it burned down within a year he would rebuild it, repair it or- give another house for it? The fire insurance feature is readily apparent. So with automobiles, is it insurance to contract with the purchaser that if the automobile be stolen or destroyed by fire the seUer wifi replace it? Carrying this out to all classes of bargain and sale, we can see how far the insurance feature may go.

AH insurance law makes one of the elements of insurance the payment of a premium — a consideration. It is said that this is not insurance because the price is the same, whether the certificate be given or not; that the purchaser pays nothing for the insurance; that he pays only the price of the watch. Nevertheless, we have this in the case: The seller insures the risk and pays the Travelers Indemnity Company a premium; in other words, it reinsures at its own expense. This, however, is the payment for insurance by indirection instead of by direct act of the purchaser. The fact that the insurance comes out of the proceeds of all the income of the watch company cannot hide the reality of the transaction. The price which the purchaser of the watch pays is not only for the watch but for everything which the seller gives him. The seller would not give him the insurance if he did not buy the watch. The price he pays for the watch is the inducement for the insurance the same as the certificate of insurance is an inducement for the purchase. That consideration for a bargain may be of this nature, see Herbert v. Shanley Co. (242 U. S. 591); Palmetto Fire Ins. Co. v. Conn (272 U. S. 295); Hunt v. Public Mut. Benefit Foundation (94 Fed. Rep. [2d] 749). The payment of a sum of money is not necessary to constitute the consideration of an insurance contract. (People v. Roschli, 275 N. Y. 26.) While the statutes of New York do not define a contract of insurance, other States have sought to codify the common law. Massachusetts, in its General Laws, chapter 175, section 2, provides: A contract of insurance is an agreement by which one party for a consideration promises to pay money or its equivalent, or to do an act valuable to the insured, upon the destruction, loss or injury of something in which the other party has an interest.”

This is a statement of the common law as it exists in this State of New York, and the agreement here in question falls within it. Interpreting the Massachusetts lay/, the court said, in Attorney-General v. Osgood Co. (249 Mass. 473, 477): Whether this clause in the contracts of the defendant is ancillary to its chief business or is mainly for advertising ends is not relevant in view of the absolute prohibition in G. L., e. 175, § 3, against the making of contracts for insurance except by companies and in the manner authorized by law. This prohibition is sweeping. It is not subject to exceptions.” (See, also, Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452.) The cases cited (Cole Bros. & Hart v. Haven, 7 N. W. Rep. 383, and Evans & Tate v. Premier Refining Co., 31 Ga. App. 303) are in the nature of warranties, and so distinguishable on the present appeal

The judgment should be reversed and judgment granted in favor of defendant. By stipulation, no costs are to be awarded.

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

Judgments reversed, etc.


author: O’Brien, J.

text:
    E. Carlton Foster et al., Appellants, v. George H. R. White, Respondent.

      Argued October 12, 1938;
    decided November 29, 1938.

      Halsey Sayles and Homer C. Pelton for appellants.
    The contract under which defendant was serving at the time of the severance of his relations with the plaintiffs was terminable at will. (White v. United States Gypsum Co., 137 Mich. 596; Schott v. La Compagnie TransAtlantique, 52 Misc. Rep. 236.)

      Eugene J. Dwyer and John E. Sheridan for respondent.
    The new findings of fact made by the Appellate Division were fully justified by the evidence. (Ginsberg v. Friedman, 146 App. Div. 779; Woolsey v. Funke, 121 N. Y. 87; Carthage Tissue Paper Mills v. Village of Carthage, 200 N. Y. 1; Kerr v. Purdy, 51 N. Y. 629; People’s Bank v. Mitchell, 73 N. Y. 406; Adams v. Fitzpatrick, 125 N. Y. 124; Pomerantz v. Polonsky, 103 Misc. Rep. 246.)
   O’Brien, J.

The purpose of this action is to enjoin defendant from practicing as a physician and surgeon in Yates county.

In December, 1932, these parties entered into an agreement whereby plaintiffs, who maintain a medical center-at Penn Yan known as the Foster-Hatch Medical Group, employed defendant as a physician and surgeon. By this agreement defendant contracted that he would not, without the written consent of plaintiffs, practice his profession in Yates county. In reference to this provision, the agreement embraces this vital clause: It is hereby expressly agreed by the said Dr. George White that this is a material and essential part of this contract, and that it is made-for the sole purpose of inducing the said party of the first part [plaintiffs] to enter into these articles of agreement.” August 24, 1935, defendant’s employment with plaintiffs was terminated by them and since that time defendant has practiced his profession in Yates county without the written consent of plaintiffs.

The agreement, by its terms, embraces the period between December 19, 1932, and December 31, 1933, a duration of a few days in excess of one year. No other written contract was ever executed. Defendant violated it.

The theory upon which the Appellate Division has denied relief to plaintiffs is to be found in these two new findings of fact: “ (a) That the written agreement of December 19, 1932, was, by consent of the parties, carried over, extended and continued until August 24, 1935; (b) that the plaintiffs discharged defendant from their employment for an insufficient and invalid reason.” The official referee refused to find as a fact that “ said agreement of December, 1932, was carried over and continued from year to year, and was in full force and effect until the termination of defendant’s employment by the plaintiffs in the third week of August, 1935.”

We think that the weight of evidence is in accord with the referee’s ruling. The contract of December 19, 1932, by its terms, expired December 31, 1933. Although one of the plaintiffs testified at one time during the trial that he was under the impression that the contract of December, 1932, held over from year to year, at another time he testified that it was not his understanding that they were working on the assumption that the contract held over but that subsequent changes were made. Defendant alleges a new contract, not only by the pleading in his answer and in his bill of particulars, but testified directly in respect to negotiations for new formal contracts in January, 1934, and later occasions. The answer alleges that at the expiration of the December, 1932, contract, a new agreement was made in its place and that in August, 1934, a new working agreement was made between these parties. Defendant’s bill of particulars alleges that about January 1, 1934, an oral agreement was made by which the December, 1932, agreement was rescinded, superseded and abandoned.” Defendant testified that in January, 1934, one of the plaintiffs suggested that defendant and other employees should try working under a new agreement for at least six months without signing the proposed contract, that he became a member of a committee and that when he was asked whether he was willing to try the new plan for six months he replied all right.” The evidence does not warrant the conclusion that there was a meeting of the minds that the old contract held over.

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court. (See 279 N. Y. 786.)

Crane, Ch. J., Lehman, Hubbs, Lotjghran, Finch . and Rippey, JJ., concur.

Judgment accordingly.


author: Finch, J.

text:
    In the Matter of Alfred Carr et al., Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants.

      Argued October 4, 1938;
    decided November 29, 1938.

      William C. Chanler, Corporation Counsel (Seymour B. Quel and Nicholas Bucci of counsel), for appellants.
    The appropriations for the positions of “ painter ” made in the budget since 1935 legally established that position, notwithstanding the fact that it had not been classified under the Rules of the Municipal Civil Service Commission. The Commission acted properly in making certifications from the “ house painter ” lists to fill vacancies in positions as “ painter.” (Story v. Craig, 231 N. Y. 33.) No appropriations having been made for “ house painter,” the petitioners could not have been so appointed in any case and cannot now have their titles changed retroactively. (Haswell v. Mayor, 81 N. Y. 255; People ex rel. Plancon v. Prendergast, 219 N. Y. 252; People ex rel. Steers v. Department of Health, 86 App. Div. 521; 176 N. Y. 602; People ex rel. Kenehan v. Higgins, 159 App. Div. 226; People ex rel. Kelly v. Dooley, 169 App. Div. 423; People ex rel. Steiger v. Collins, 213 App. Div. 76; 241 N. Y. 526.) The similarity between the duties performed by “ painters ” and those formerly performed by “ house painters ” in the Department of Plant and Structures, as found by the trial court, is immaterial and cannot control the city’s designations. (Wood v. City of New York, 274 N. Y. 155.) The entire proceeding is improper and is merely an indirect attempt upon the part of petitioners to evade the procedure required as to all claims made under the prevailing rate of wage statutes. (Matter of Gaston v. Taylor, 274 N. Y. 359; Matter of Simpson v. Taylor, 253 App. Div. 713; 278 N. Y. 643.)

      Leopold V. Rossi for respondents.
    The Board of Estimate and the Municipal Civil Service Commission, by creating a fictitious title and not legally classifying it, as required by the Civil Service Law (Cons. Laws, ch. 7), could not avoid payment of the prevailing rate of wages to employees. (Lent v. City of New York, 150 Misc. Rep. 291; 242 App. Div. 764; People ex rel. Steiger v. Collins, 213 App. Div. 76.)
   Finch, J.

The petitioners have passed qualifying examinations given by the Municipal Civil Service Commission for the position of “ House Painter.” Four of them have had employment in the Department of Plant and Structures as House Painters ” at $9.50 a day. The New York city budget for 1935 eliminated the position of House Painter ” in the Department of Plant and Structures, and made no appropriation therefor, but provided for Painters (Ship Repair Work) ” at $8 per day, although there was no such civil service classification. The petitioners were certified together with others, some of whom declined appointment, as being eligible for the position of Painter,” and all the petitioners have accepted appointment to that position and were so employed at the time of the bringing of this proceeding. Prior to the commencement of this action, the four who had previously been employed as “ House Painters ” in the Department of Plant and Structures, were offered positions as House Painters ” in other city departments, but declined the appointment. All of these petitioners, although they have accepted these positions as painters, still remain eligible to be appointed as “ House Painters,” the list for which does not expire until 1939.

The petitioners sought an order directing that the title of the position be changed from Painter ” to House Painter ” retroactively as of the date of their appointments. The justice at Special Term granted an alternative order. After a trial it was found that there was no substantial difference in the nature and quality of the work performed after January 1, 1935, and the work performed before that date by the four petitioners who had been employed as “ House Painters ” prior to that time. Thereafter a peremptory order was granted directing that the title of the position be changed from “ Painter ” to “ House Painter.” The Appellate Division, one justice dissenting, affirmed.

The civil service rules provide that when a request is made for the certification of eligibles for a vacant position, if there be no eligible list for the position, certification shall be made from the list most appropriate. (Rules of Municipal Civil Service Commission, rule V, § VII, ff 1.) There can be no doubt that the House Painter ” eligible list was an appropriate one to appoint from, in the absence of an eligible list for the position of Painter.” The Commissioner of Plant and Structures could not appoint any of the petitioners to the position of House Painter ” in the Department of Plant and Structures, since no appropriation was made in the budget for that position. His only alternative was to make appointment to the position of “ Painter ” from the most appropriate eligible list. A position may be created and appointments made to it even though the title is not enumerated in the civil service classification schedules. (Story v. Craig, 231 N. Y. 33.)

In any event, since there were no appropriations made for “ House Painters,” the petitioners could not have been appointed to the position of “ House Painter,” and hence now cannot have their titles changed retroactively to that of House Painter.” All of the petitioners were appointed to the position of Painter ” in the Department of Plant and Structures prior to January 1,1935. At no time since that date has there been any appropriation in this department for “ House Painters.” So that, without regard to the validity of the creation of the position of “ Painter ” and the making of a budgetary appropriation therefor, the petitioners still were not entitled to be appointed as House Painters ” for which no appropriation had been made. (Cf. People ex rel. Plancon v. Prendergast, 219 N. Y. 252; Matter of Steiger v. Collins, 213 App. Div. 76; affd., without opinion, 241 N. Y. 526.)

It is urged that the two positions are substantially - the same, and that there was no reason for creating a new position except for the purpose of evading the prevailing rate of wages requirement. Assuming that the positions are substantially alike, this does not preclude the city from creating a new position. The city has a right to decide that a position is inappropriately titled, or that the work done under one title would more appropriately fall under another, even though the latter would involve the creation of a new title. The city at the trial offered a witness to prove that the title of Painter,” given to the petitioners, conformed to the title used for the same type of work, to wit, painting ferries in the outside labor market. The city was under no obligation to perpetuate a misdescription involved in a prior title, merely because it would have involved a higher rate of pay. (Wood v. City of New York, 274 N. Y. 155, 162.) Moreover, it cannot be said that the title Painter ” is a less apt description for those who devote most of their time to painting ferries than is the title “ House Painter,” for those who apparently at the most spend only about ten per cent of the time on house painting.

This brings us to the nub of the matter. Although this is a special proceeding, and the relief sought, a change of title, apparently the proceeding is designed to obtain an increased wage for the petitioners. This is apparent from the petition itself, which emphasized the fact that House Painters ” in the department and elsewhere in the city service receive $9.50 a day, whereas the petitioners receive $8 a day. Also, subsequent to the decision herein, the petitioners filed their claim with the Comptroller to recover the difference between $8 and $9.50 a day, commencing with the dates of their respective employments. Whether the petitioners are entitled to $9.50 a day depends not on whether the position is substantially the same as the one for which the city is paying that amount, but on whether petitioners are receiving the prevailing rate of wage for the work which they are performing. At the trial the city offered to show that the budgetary appropriation of $8 per day for the petitioners was a fair one and conformed to the existing outside standard. These offers were excluded by the trial judge upon the ground that the only issue was as to similarity of position. This court has held that a city employee may obtain the prevailing rate of wages only by first making a complaint to the Comptroller and having an investigation made by him to fix the prevailing rate of wages. (Matter of Gaston v. Taylor, 274 N. Y. 359.) Nor may the Comptroller be compelled to conduct such investigation with regard to wages already paid. Such proceedings must be limited to the future. (Matter of Simpson v. Taylor, 278 N. Y. 643, affg. 253 App. Div. 713.)

The petitioners are now seeking to do in this proceeding by indirection what this court has held cannot be done directly. Petitioners seek to obtain a retroactive change of title to lay the basis for retroactively claiming a higher wage attendant upon the title of House Painter,” and thus seek to avoid the necessity of proving that they are receiving less than the prevailing rate of wages for the work performed by them.

The petitioners are not entitled to a peremptory order directing a change in the title of the position.

The orders appealed from should be reversed, and the proceeding dismissed, with costs.

Crane, Ch. J., O’Brien, Hubbs, Loeghran and Bjppey, JJ., concur; Lehman, J., taking no part.

Orders reversed, etc.


author: Loughran, J.

text:
    The People of the State of New York ex rel. John G. M. Hilton, Respondent, against Nicholas J. Fahrenkopf, as Commissioner of Assessments of the City of Albany, et al., Appellants.
    Argued October 7, 1938;
    decided November 29, 1938.

      Joseph J. Casey, Corporation Counsel (Robert E. Whalen of counsel), for appellants.
    The doctrine of res judicata is inapplicable. (Shaw v. Broadbent, 129 N. Y. 114; Rudd v. Cornell, 171 N. Y. 114; Matter of St. Lawrence Transmission Co. v. McAvoy, 137 Misc. Rep. 603; Bell v. Merrifield, 109 N. Y. 202; People ex rel. Knickerbocker Safe Deposit Co. v. Wells, 181 N. Y. 245.) The Appellate Division was not justified in reducing the referee’s valuations which the court at Special Term had approved and confirmed. (People ex rel. Amalgamated Properties, Inc., v. Sutton, 274 N. Y. 309; Forstmann v. Joray Holding Co., 244 N. Y. 22; York Mtge. Corp. v. Clotar Constr. Corp., 254 N. Y. 128; Pirman v. Confer, 273 N. Y. 357; Forbes v. Todd, 266 N. Y. 384; Conlin v. Kraft & Sons Co., 271 N. Y. 499; Kossoff v. Wald, 272 N. Y. 480; People v. Crum, 272 N. Y. 348; Doyle v. Met. El. Ry. Co., 136 N. Y. 505; Boyd v. Boyd, 252 N. Y. 422; Heiman v. Bishop, 272 N. Y. 83; People ex rel. Loeser & Co. v. Goldfogle, 220 App. Div. 326; Goelet v. National Surety Co., 249 N. Y„ 287; Adams Express Co. v. Ohio, 166 U. S. 185; People ex rel. Amalgamated Properties, Inc., v. Sutton, 274 N. Y. 309; People ex rel. Jamaica Water Supply Co. v. Tax Commrs., 196 N. Y. 39.)

      Ernest B. Morris and William E. Woollard for respondent.
    The doctrine, of res judicata is applicable. (Goelet v. National Surety Co., 249 N. Y. 287; People ex rel. Eckerson v. Zundel, 157 N. Y. 513; People ex rel. Warren v. Carter, 119 N. Y. 557; Stearns v. Shepard & Morse L.

      Co., 91 App. Div. 49.) The evidence conclusively sustains the findings of fact made by the Appellate Division. (York Mtge. Corp. v. Clotar Constr. Corp., 254 N. Y. 128; Van Cortland v. N. Y. C. R. R. Co., 265 N. Y. 249; Smith v. Smith, 273 N. Y. 380; People ex rel. Jamaica W. S. Co. v. Tax Commrs., 196 N. Y. 39; Boyd v. Boyd, 252 N. Y. 422; Lamport v. Smedley, 213 N. Y. 82; People ex rel. D. & H. Canal Co. v. Ganley, 56 Hun, 639; 131 N. Y. 566; Folinsbee v. Sawyer, 157 N. Y. 196; Cassin v. Stillman, Delehanty-Ferris Co., 185 App. Div. 63; McGuire v. McGuire, 201 App. Div. 71; McKinster v. Babcock, 26 N. Y. 378.)
   Loughran, J.

This is a certiorari proceeding brought under article 13 of the Tax Law (Cons. Laws, ch. 60).

The relator is the owner of 41 North Pearl street and 98 Sheridan avenue in the city of Albany. In 1936 the Commissioner of Assessments and Taxation of the city fixed the assessed valuation of the first mentioned property at $800,000 and that of the other at $25,000. The city Board of Review (composed of the Commissioner, the Comptroller and the Corporation Counsel) refused any reduction. After trial of the issues of value, the Special Term reduced the assessments to $704,000 and $15,048, respectively.

The prior assessment of each property in 1935 had been reviewed on certiorari. In the proceeding then taken, the assessed valuation of 41 North Pearl street had been fixed by the court at $489,324 and that of 98 Sheridan avenue at $14,960. The Appellate Division here sustained the relator’s contention that this former determination was res judicata as to the issues of value in the present proceeding and that court reduced the 1936 valuations of the Special Term accordingly, citing People ex rel. Warren v. Carter (119 N. Y. 557).

In the cited case the proceeding was one to review an assessment of real property for the year 1887. Similar proceedings had been brought in 1885 and 1886, and it had then been judicially determined that the value of the property was $40,000. The assessment for 1887 - was $60,500 and was reduced to $40,000 by the Special Term. In affirming the judgment there entered upon the decision below, this court said: “ The adjudications made in 1885 and 1886 were binding and conclusive upon the parties thereto as to the value of the property in those years, and unless there was an increase in its value subsequent to those adjudications and before the assessment in 1887, or some change affecting its assessable value, the court at Special Term committed no error in giving those adjudications conclusive effect between the parties. The fact that some of the assessors had received new terms of office was unimportant. The offices and the officers were the same, and we see no reason to doubt that the doctrine of res adjudícala should apply to such a case so far as above indicated ” (p. 559). The words just quoted are to be read in the light of the record to which they were addressed. It thereby appears that the issue of value in the 1887 proceeding was tried and that, upon conflicting proofs (including the records of the prior proceedings), the court found that the actual 1887 value was $40,000. The Warren case thus did not necessarily decide more than the proposition that the value of property for taxation as adjudicated in one year may be evidence of its assessable value for a succeeding year. We think the correctness of that proposition is not to be doubted.

There is equally no doubt, however, that the Warren case has been thought to go as far as we understand the Appellate Division went in the present proceeding. (Matter of Mitchell, 254 App. Div. 637, and cases there cited. See 2 Freeman on Law of Judgments [5th ed.], p. 1804; 3 Cooley on Law of Taxation [4th ed.], § 1142.) This view of that case involves, we think, a misconception of the scope of res judicata which should now be removed.

It is of the essence of an assessment that it fixes value as of a certain time. Each annual proceeding is separate and distinct from every other. Year by year an assessor must use his own judgment and must verify the roll (Tax Law, § 28). From these considerations it results that a prior judicial determination of value does not legally bind successor assessors. (People ex rel. Eckerson v. Zundel, 157 N. Y. 513.) It was by that decision suggested, to be sure, that a different result might consistently be predicated of the circumstance that no change in the personnel of an assessing board had occurred since a prior adjudication of value was made. We are now persuaded to say that we think this suggestion was unsound, for value in one year is not in issue thereafter nor are the assessors themselves real parties in interest. Accordingly, we conclude that (though the assessing officers have at all times been the same persons) the doctrine of res judicata can have no true application to the issues of value in recurring assessment proceedings. (Cf. Tait v. Western Maryland Ry. Co., 289 U. S. 620.)

New findings of value were here made by the Appellate Division. These have been reviewed. It is our judgment that the findings of value made by the Special Term are in accord with the weight of the evidence.

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

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

Ordered accordingly.


author: Rippey, J. Crane, Ch. J.

text:
    Josephine Gloshinsky et al., Respondents, v. Bergen Milk Transportation Company, et al., Appellants, Impleaded with Another.
    Argued October 13, 1938;
    decided November 29, 1938.

      William B. Meagher and Joseph L. Boesch for appellants. There was no proof of negligence on the part of appellants.

      (Cantanno v. Stevenson Co., 172 App. Div. 252; Herron v. High Ground Dairy Co., 153 App. Div. 338; Gray v. Weir, 113 App. Div. 479; Schneider v. Railway Express Agency, Inc., 230 App. Div. 404; Wood v. Pace, 220 App. Div. 386; 250 N. Y. 556; Greene v. Sibley, Lindsay & Curr Co., 257 N. Y. 190; Henderson v. Knickerbocker Ice Co., 5 N. Y. Supp. 909; 119 N. Y. 619; Becker v. Fargo, 158 App. Div. 810; Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133; Hopper v. Benne, 114 App. Div. 572.) There was no evidence authorizing the jury to find the absence of contributory negligence on the part of the infant plaintiff. (.Herron v. High Ground Dairy Co., 153 App. Div. 338; Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420; Camardo v. New York State Railways, 247 N. Y. 111; Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308; Jacobs v. Koehler S. G. Co., 208 N. Y. 416; Heffernan v. Arnold, 48 App. Div. 419; Volosko v. Interurban Street Ry. Co., 190 N. Y. 206; Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248; Guichard v. New, 9 App. Div. 485; Sobol v. Union Ry. Co., 122 App. Div. 817; Buckley v. G. P. & R. Mfg. Co., 113 N. Y. 540; McCarragher v. Rogers, 120 N. Y. 526; Hickey v. Taaffe, 105 N. Y. 26; McGuiness v. Butler, 159 Mass. 233; White v. Board of Education, 149 Misc. Rep. 324.)

      Daniel F. Kelley for respondents.
    There is ample evidence to establish gross negligence on the part of defendants-appellants. (Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y. 326; Costello v. Third Ave. R. Co.,
      161 N. Y. 317; Hammer v. Bloomingdale Bros., Inc., 215 App. Div. 308; Hart v. Hudson River Bridge Co., 80 N. Y. 622; Chisholm v. State, 141 N. Y. 246.) Whether under the circumstances the infant plaintiff was guilty of contributory negligence was properly submitted to the jury and was a matter for their determination. (Weber v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 451; Eastland v. Clarke, 165 N. Y. 420; Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y. 326; Hluboky v. 1726 Davidson Ave. Cory., 158 Misc. Rep. 799; 247 App. Div. 778; Moon v. Hoy, 277 N. Y. 684; Conway v. Naylor, 222 N. Y. 437; Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345; Godwin v. Bklyn. Edison Co., 242 App. Div. 643; Rix v. Siegel, 235 App. Div. 499; Bell v. Workmen’s Circle of America, 245 App. Div. 771; Johnson v. City of Amsterdam, 245 App. Div. 894; Camardo v. New York State Railways, 247 N. Y. 111.) The case was properly submitted to the jury. (Seyford v. Southern Pacific Co., 216 N. Y. 613; Brinkerhoff v. Pennsylvania R. R. Co., 245 App. Div. 561; Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420; Kelly v. Eagle Motor Haulage Co., 243 App. Div. 739; Stone v. Dry Dock R. R. Co., 115 N. Y. 104; Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y. 326.)
   Rippey, J.

One of the plaintiffs, an infant fifteen years of age, was injured at about half past four on the afternoon of May 23, 1934, when the tailboard of a trailer hitched to a truck and owned by the defendant Bergen Milk Transportation Company dropped on his head. The boy and his mother have brought an action to recover damages for injuries which he then sustained and they have recovered.

Defendant Meyer, the driver of the truck, had backed the truck with the trailer behind it into a narrow areaway, slightly wider than the vehicle, alongside a loading platform of a milk station operated by defendant Schalk for the purpose of unloading cases or cans of milk. The driver dismounted on the left side of the cab, went along the left side of the cab and trailer and around the rear to the right rear corner, pulled out a pin to release the chain attached to and holding in position the right end of the tailboard, then walked around the rear of the trailer to the left side, released the chain holding the left end of the tailboard, and it dropped into position so that the cans or cases could be unloaded onto the platform. While this was going on, the boy passed along the right side of the truck and trailer, between the truck and trailer and the loading platform, and was just passing around the right rear corner of the trailer as the tailboard fell.

The boy testified that while he was still out in the street, he looked up and saw the driver sitting in the cab of the truck after it had backed into and stopped within the inclosure but said that he did not see him afterwards. There was no evidence that the driver had any notice that the boy was entering the areaway, or passing around the side and the rear of the truck and trailer, or that he was near or in the vicinity of the tailboard when he permitted it to drop. There was no evidence from which the jury were authorized to infer that the driver had any reason to anticipate that any one would be in the place where the accident happened. The driver testified that he did not look around to see. Under the circumstances, he had no duty to make any such observation. There was no reason apparent in the evidence why he should have anticipated that someone would run into the areaway around the truck and trailer and under the tailboard while he was letting it down. The driver was bound to exercise only reasonable care. There was no evidence from which the jury might find that appellants violated any duty they owed to the boy, and consequently the finding of negligence on the part of the driver was without evidence to support it.

In the absence of evidence tending to show that the boy was not of sufficient age, capacity and experience or otherwise qualified or able to understand and appreciate the dangers surrounding him, he must be deemed sui juris (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308, 318). The mere fact that the injured person is an infant does not require the submission of the question of his freedom from contributory negligence to the jury (Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420). The standard of care required of an infant is sometimes lower than that which would be required of an adult under the same circumstances. An infant, however, is required in all cases to exercise reasonable care to avoid known dangers (Volosko v. Interurban Street Ry. Co., 190 N. Y. 206, 209) and all unknown dangers which ordinary prudence requires him to anticipate, the care being measured by that which an ordinarily prudent person of his age, capacity and experience would have exercised under similar circumstances (Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248, 252; Camardo v. New York State Railways, 247 N. Y. 111). The burden of establishing freedom from contributory negligence rested upon the plaintiffs (Camardo v. New York State Railways, supra). While the question of the freedom of an infant from contributory negligence is ordinarily one for the jury, the facts may be such as to make it a question of law (Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420, 427).

As above stated, the boy testified that the only time he saw the driver on the day of the accident was when the latter was sitting in the cab of the truck and while he, the boy, was out in the street. He says, however, that he heard the driver loosening the chains to let the tailboard down and that, as he passed along the trailer and around its rear right corner, he knew that the chain on the right end of the tailboard was unhooked. He also testified that he knew, as he passed along the areaway to the back of the vehicle, that the tailboard was likely to come down. Nevertheless, he walked around the trailer and under the falling tailboard without any apparent effort so far as the evidence shows to avoid the accident. Nothing appears to show that anything was going on to distract his attention from what was being done in the lowering of the tailboard. He knew of the dangers incident to the lowering of the tailboard. There are no conflicting inferences to be drawn from the testimony. But a single determination .is possible from the facts and that is that the boy exercised no care at all for his own safety, and under those circumstances, as matter of law, the plaintiffs failed to sustain the burden resting upon them to show that he was free from negligence contributing to his injuries (Wendell v. N. Y. C. & H. R. R. R. Co., supra; Camardo v. New York State Railways, supra). The fact that the boy tried to duck ” the falling tailboard does not help the plaintiffs out. He tried to do so only after it was too late and after his failure to exercise the care required of him had placed him in a position of danger. The boy, by his own testimony, was guilty of contributory negligence as a matter of law.

Defendants-appellants’ motion for a nonsuit upon each of the grounds (1) that the plaintiffs failed to establish any negligence on the part of the defendants-appellants and (2) that they failed to establish the infant plaintiff’s freedom from contributory negligence should have been granted, and the exception to the denial thereof was well taken. The advantage of this exception was not waived, for the motion was renewed at the close of the case and denied, whereupon defendants-appellants duly excepted.

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

Crane, Ch. J.

(dissenting). My inability to "agree with this opinion is because the young boy plaintiff was legally and lawfully upon the premises, having gone on an errand for one of the employees there. In returning and passing the truck, he waved to the driver, who saw him. The questions and answers in the case are as follows:

“ Q. Now just prior to the time you walked up the left side of that truck, did you see the driver, Frank Meyer, on the seat of that truck at that time? A. Yes, sir.

“ Q. What did you do? A. I waved to him and he nodded back to me.

“ Q. And then you proceeded up the left side of the truck, is that correct? A. Yes, sir.”

I cannot reconcile this evidence with the statement in the opinion: “ There was no evidence that the driver had any notice that the boy was entering the areaway, or passing around the side and the rear of the truck.” Neither can I agree that the boy is guilty of contributory negligence as matter of law.

Lehman, O’Brien and Finch, JJ., concur with Rippey, J.; Crane, Ch. J., dissents in opinion in which Htjbbs and Loughran, JJ., concur.

Judgment accordingly.