author: Crane, J.

text:
    Martha W. Bacon et al., Respondents, v. Julius Miller, President of the Borough of Manhattan, et al., Appellants.
    Municipal corporations — New York city — charter provision authorizing Board of Aldermen to regulate naming of streets and numbering of houses — resolution of Board extending streét and authorizing renumbering of buildings legislative — courts without authority to inquire as to reasonableness — resolution not void because signed after time of year within which charter provided streets might be renamed or renumbered.
    1. Under section 50 of the charter of the city of New York (L. 1901, ch. 466) the Board of Aldermen has power “ to regulate the numbering of houses and lots in the streets and the naming of streets.” A resolution of that Board, therefore, providing that the two blocks of Fourth avenue between Thirty-second street and Thirty-fourth street be made part of and designated as “ Park avenue ” and authorizing the President of the Borough of Manhattan to number the buildings on the newly added portion, is legislative in nature and the courts have no power to inquire into its reasonableness nor interfere therewith upon the basis of a mere difference of opinion as to its wisdom or propriety.
    2. The resolution was not void because signed by the Mayor on May third while the charter provided that houses should not be renumbered or the name of any street changed except between the

      first of December and the first of May. The time when the actual change could take place in the name of the street was postponed thereby until December first.

      Bacon v. Miller, 221 App. Div. 651, reversed.
    (Argued January 18, 1928;
    decided February 14, 1928.)
    Appeal from a judgment, entered December 7, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment entered upon a decision of the court on trial at Special Term, in so far as the same was in favor of defendants and directing judgment in favor of plaintiffs.

      George P. Nicholson, Corporation Counsel (/. Joseph Lilly, Elliot S. Benedict and Bussell Lord Tarbox of counsel), for President of Borough of Manhattan, appellant.
    The resolution of the Board of Aldermen by which Park avenue was extended southerly from Thirty-fourth street to Thirty-second street was valid. (People ex rel. Knoblauch v. Warden, etc., 216 N. Y. 154; Day v. Brownrigg, L. R. [10 Ch. Div.] 294; Brooklyn Park Comm. v. Armstrong, 45 N. Y. 234; Radcliff v. Mayor, 4 N. Y. 195; People ex rel. Lodes v. Bd. of Health, 189 N. Y. 187; Brown v. City of New York, 78 App. Div. 361; 176 N. Y. 571; White v. Manhattan Ry. Co., 139 N. Y. 19.) The resolution in question was duly adopted under specific authority of the Legislature and, therefore, its reasonableness is not properly a matter of inquiry. (Matter of Stubbe v. Anderson, 220 N. Y. 459; Duryee v. Mayor, etc., of N. Y., 96 N. Y. 477; City of Rochester v. Macauley-Fein Mfg. Co., 199 N. Y. 207; Phelps v. City of Watertown, 61 Barb. 121; People v. Canal Board, 55 N. Y. 390; Guest v. City of Brooklyn, 69 N. Y. 506; Palmer v. Bd. of Education, 47 App. Div. 547.) The provision of section 50 of the charter that “ it shall not be lawful to number or renumber any houses or change the name of any street save between the first day of December of any year and the first day of May next ensuing ” was not a limitation of the power of the Board of Aldermen to pass ordinances regulating the numbering of houses and lots and the naming of streets, but was a direction to prevent the physical numbering and naming of the streets during the indicated period. (Truesdale v. City of Rochester, 33 Hun, 574; Matter of Mayor, etc., of N. Y., 193 N. Y. 503; Van Ingen v. Hudson Realty Co., 106 App. Div. 444; Tooele City v. Hoffman, 42 Utah, 596.)

      Martin Conboy and David Asch for One Park Avenue Corporation, appellant.
    The resolution is not in conflict with any provision of the State or Federal Constitution or of general law. (Darling v. Jersey City, 80 N. J. Law, 514; 84 N. J. Law, 758; Eldridge v. Fawcett, 223 Pac. Rep. 1040; Day v. Brownrigg, L. R. [10 Ch. Div.] 294; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234; Radcliff v. Mayor, 4 N. Y. 195; Sauer v. New York, 180 N. Y. 27; McCabe v. New York, 213 N. Y. 468.) The provision contained in section 50 of the City Charter that “ it shall not be lawful to number or renumber any houses or to change the name of any street save between the first day of December in any year and the first day of May next ensuing,” has no other effect than to fix the time when the action of the Board of Aldermen, approved by the Mayor, shall become effective. Liberty Highway Co. v. Michigan Public Util. Comm., 294 Fed. Rep. 703; Purdy v. Erie R. R. Co., 162 N. Y. 42; Simpson v. Paddock, 195 Mich. 581; Oklahoma City v. Shields, 100 Pac. Rep. 559; Matter of Alexander, 53 Fla. 647; Biggs v. McBride, 17 Oreg. 640; State v. Meath, 147 Pac. Rep. 11; Tooele City v. Hoffman, 42 Utah, 596; McCullough v. Virginia, 172 U. S. 102; Dollar Co. v. Canadian C. & F. Co., 220 N. Y. 270; Edwards v. City of Kirkwood, 162 Mo. App. 576.) The action of the Board of Aldermen not being in conflict with any fundamental law is not subject to review by the courts. (Village of Carthage v. Frederick, 122 N. Y. 268; Duryee v. Mayor, etc., of N. Y.,
      96 N. Y. 477; McCabe v. City of N. Y., 213 N. Y. 468; People ex rel. Wood v. Draper, 15 N. Y. 532; Waterloo Mfg. Co. v. Shanahan, 128 N. Y. 345; People v. Lawrence, 36 Barb. 177; Cronin v. People, 82 N. Y. 318; Pearce v. Stephens, 18 App. Div. 101; 153 N. Y. 673; People v. Petrea, 92 N. Y. 128.)

      Benjamin F. Feiner and Ira SJcutch for Two Park Avenue Corporation, amicus curice.

    The action of the Board of Aldermen, having been taken in pursuance of express legislative authority, had the force of a statutory enactment and was not subject to review by the courts beyond constitutional limitations. (McCabe v. City of New York, 213 N. Y. 468; People ex rel. Doyle v. Atwell, 232 N. Y. 96; People ex rel. Knoblauch v. Warden, 216 N. Y. 154; Haynes v. City of Cape May, 50 N. J. Law, 55; Pittsburg, C. C. & St. L. Ry. Co. v. Town of Crown Point, 146 Ind. 421; Carpenter v. Borough of Yeadon, 151 Fed. Rep. 879; Village of Carthage v. Frederick, 122 N. Y. 268; People ex rel. Wood v. Draper, 15 N. Y. 532; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Racine v. Morris, 201 N. Y. 420; People v. Crane, 214 N. Y. 154.)

      Edwin De T. Bechtel and A. Delafield Smith for respondents.
    The resolution wrongfully and illegally interfered with the plaintiffs in the quiet use and enjoyment of "their premises. (Anderson v. Dublin, L. R. [15 Ire.] 410; Matter of Picone, 241 N. Y. 157; Collins v. Hornsey Urban Counsel, [1901] 2 K. B. 180; People ex rel. Wineburgh v. Murphy, 195 N. Y. 126; Dobbins v. Los Angeles, 195 U. S. 223; Lawton v. Steele, 152 U. S. 133; Matter of Jacobs, 98 N. Y. 98.) The resolution in question was not authorized by the Legislature. (People ex rel. Knoblauch v. Warden, 216 N. Y. 154; Santiago Land Co. v. National City, 174 U. S. 739.) The prohibition contained in section 50 of the charter was violated. (Louisville v. Savings Bank, 104 U. S. 469; Burgess v. Salmon, 97 U. S. 381; Davis v. Whidden, 117 Cal. 622; Wartman v. City of Philadelphia, 33 Penn. St. 202; Petition of Douglass, 46 N. Y. 42; People v. Loomis, 135 Mich. 556.)
   Crane, J.

Prior to April 22, 1924, Park avenue, in the city of New York, borough of Manhattan, extended south to Thirty-fourth street. It was 140 feet wide. South from Thirty-fourth street this avenue was known and designated as Fourth avenue. Between Thirty-fourth and Thirty-second streets it was 120 feet in width, and south from Thirty-second street, 100 feet wide. Between Thirty-fourth and Thirty-second streets, Fourth avenue, so designated, had been widened by extending the easterly curb line 20 feet to the east. This made Park avenue north of Thirty-fourth street and these two blocks of Fourth avenue south of Thirty-fourth street of equal width and uniform curb lines. The physical change has been made with the exception of the armory property between Thirty-third and Thirty-fourth streets, which has not yet been actually cleared. Park avenue, therefore, at the times here in question, and these two blocks of Fourth avenue south of Thirty-fourth street, constituted a street 140 feet wide. Below Thirty-second street, Fourth avenue is a business street 100 feet wide. At the present time there is a business building erected on the entire block on the east side of the street between Thirty-second and Thirty-third streets. As above stated, between Thirty-third and Thirty-fourth streets there is the armory. On the west side, between Thirty-fourth and Thirty-third streets, is the Vanderbilt Hotel, and on the side where formerly was the Park Avenue Hotel has now been erected a business building covering the entire block. The hotel, although located on what was Fourth avenue, had always been known as the Park Avenue Hotel.

On April 22, 1924, the Board of Aldermen adopted the following resolution:

“Resolved, that so much of Fourth Avenue as extends from 32nd Street to 34th Street, in the Borough of Manhattan, be and the same hereby is changed to, made part of and shall hereafter be known and designated as ‘ Park Avenue,’ and the President of the Borough is authorized and requested to number or renumber the buildings on the newly added portion of Park Avenue in such manner and to such extent as may be deemed necessary and to note the changes on the maps and records of his office.”

The authority of the Board of Aldermen to take such action was found in section 50 of the Greater New York Charter, reading as follows:

Subject to the constitution and laws of the state, the board of aldermen shall have power * * * to regulate the numbering of houses and lots in the streets and the naming of streets, except that it shall not be lawful to number or re-number any houses or to change the name of any street save between the first day of December in any year and the first day of May next ensuing * *

The resolution was approved by the mayor on May 3d, pursuant to section 40 of the said charter.

The name of the street having been changed for these two blocks, it of course became necessary to change the street numbers. Theretofore the numbers in Park avenue commenced at Thirty-fourth street; the numbers on Fourth avenue ran up to Thirty-fourth street. What was the Board of Aldermen or the Borough President to do? Section 111 of article X of chapter 23 of the Code of Ordinances of the city of New York provided as follows:

In all cases where a street shall have been numbered or re-numbered, the Borough President having jurisdiction shall thereafter adjust and re-number such street as the same may be required from time to time. In numbering and re-numbering houses, he shall leave sufficient numbers on each block so that under any circumstances, there would be but one block where a change would be required, in case of re-numbering at any subsequent time.”

Rather than change all the numbers on Park avenue north of Thirty-fourth street, the borough president gave number 1 to the building between Thirty-second and Thirty-third streets, and number 5 to the house owned by Mrs. Bacon, on the corner of Thirty-fourth street, which formerly had been number 1. To her neighbor, Mrs. Porter, was assigned number 7: this had been number 3. No numbers have been changed north of Thirty-fifth street.

The resolution of the Board of Aldermen and the action of the Borough President have been challenged, the main attack being made upon the change of these numbers 1 and 3. Mrs. Bacon and • Mrs. Porter desire to retain their old numbers. No particular point is made of giving number 1 to the building on the block between Thirty-second and Thirty-third streets, instead of giving it ten numbers more or less, under the ordinance. The objection is that number 1 should not be taken from the house at Thirty-fourth street.

The Appellate Division, by divided court, has held the resolution of the Board of Aldermen illegal and void, on the ground that it was an arbitrary and unreasonable exercise of power. This of course is the heart of the case. If the name of the street for the two blocks was legally changed from Fourth avenue to Park avenue, it necessarily follows that renumbering would have to be made. The change in street numbers was, therefore, dependent largely upon the legality in the change of name.

The action of the Board of Aldermen was legislative in nature. The power was conferred upon the Board by the Legislature in the charter provision above quoted. The action of the Board if valid was in effect the act of the Legislature. (Village of Carthage v. Frederick, 122 N. Y. 268.) The courts may not interfere with the resolution upon the basis of a mere difference of opinion as to its wisdom or propriety. (Dillon on Municipal Corporations [5th ed.], vol. 1, pp. 458, 459.) There is no occasion to determine whether a different test would be applied if vested rights of property were interfered -with under the guise of the police power, or if the ordinance were sought to be sustained under an implied power, or were less specific and exclusive. Here there is no vested right in the name of the street or in the number originally assigned to a house upon the street. The power to change the name of streets is akin to the power vested in the Boards of Aldermen and Common Councils to change the grade of streets or to close them altogether. (McCabe v. City of New York, 213 N. Y. 468; Darling v. Jersey City, 80 N. J. L. 514; affd., 84 N. J. L. 758; Eldridge v. Fawcett, 128 Wash. 615.) The case of Anderson v. Lord Mayor & Corporation of Dublin (15 Law Reports [Ireland], 1885, 1886, page 410) cited below, was limited in effect to the interpretation of the Towns Improvement Clauses Act of 1847. This was held to give the commissioners no power to change names once given, in this instance, the name of Sackville street to O’Connell street. In the case now before us there is a legislative power to change and renumber.

One limitation under the charter applied to the changes made or to be made by this resolution of April 22, 1924. They could not take effect until after the first of December of that year. The resolution was not void because signed by the Mayor on May 3,1924, and taking effect as of that time. The resolution was legally passed and approved within the time designated by section 40 of the charter. The time when the actual change could take place in the name of the street was postponed until after December first. In fact, the change in numbers was not made by the Borough President until after the decision by the Special Term in this action.

With the motives which actuated the Board of Aider-men, we have nothing to do at all events in the absence of fraud or corruption. As to the reasonableness of their action, there may be two sides, as there are to many legislative acts. That the renumbering has caused inconvenience is quite apparent. It is claimed that number 1 is also of some material and financial benefit to the business building at Thirty-second' street. No doubt this is so. The owner of a dwelling house, who, like Mrs. Bacon, has had a certain number for a great many years, is naturally annoyed and vexed when that number is taken away and given to another. These are all matters which should have been considered, and properly considered by the aldermen before they took action. Power, when possessed, should not be arbitrarily used. The courts, however, have no general supervision over legislation, whether it be that of the Legislature or the Board of Aldermen, and like other functions of government, have limited powers. As above stated, the court has no power to inquire into the reasonableness of this resolution of April 22, 1924. If it did, perhaps the changes made in the physical condition of Park avenue, between Thirty-second and Thirty-fourth streets, might make it reasonable to give one name to a street having a uniform width of 140 feet, and another name to that portion of the street having only a width of 100 feet, and used exclusively for business. As to these matters, however, we express no opinion.

For the reasons here stated, 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.

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

Judgment accordingly.


source: Caselaw Access Project

author: Pound, J.

license: Public Domain

text:
    The People of the State of New York ex rel. William J. Schieffelin, Respondent, v. James J. Walker, as Mayor of the City of New York, et al., Constituting the Board of Estimate and Apportionment of the City of New York, Appellants. Charles W. Berry, as Comptroller of the City of New York, Respondent.
    Municipal corporations — New York city — officers — mandamus — power of Board of Estimate and Apportionment to authorize Comptroller to issue short term bonds and provide items for amortization in budget of 1928 in absence of certification by Comptroller of amount required — authority of Comptroller to determine when to issue city bonds — discretion subordinated to duty to put bonds on market before date fixed by Board of Estimate and Apportionment for their maturity — erroneous issuance of mandamus requiring that item for amortization installment be striken from budget.
    1. The Board of Estimate and Apportionment of the city of New York had power to authorize the Comptroller of that city to issue four-year bonds before the end of the year 1927 to raise funds to provide for the construction of the subway system and provide for the first amortization installment thereon in the budget for the year 1928, although the Comptroller had not certified to the Board his estimate of the amount required for such amortization installment. The charter provisions (L. 1901, eh. 466, §§ 206, 229) relative to certification by the Comptroller are general in their terms and make the Comptroller the source of information rather than the authority for necessary items. Default in such certification by him does not relieve the Board from its duty to include such items in the budget. If the Comptroller omits td certify a legal item the Board may supply it.
    2. A contention that the Comptroller has the right to determine when to issue bonds of the city and that the Board of Estimate and Apportionment may not lawfully include any amortization items therefor in the budget until the Comptroller has furnished his certified estimate of the amount of such items, cannot be sustained. Although the Comptroller has, under the charter, in a general way, a wide discretion as to when the bonds of the city shall be issued, when the Board of Estimate and Apportionment seeks to put into immediate operation a plan of financing subway construction which calls for an issue of bonds maturing on a given date, discretion, if there is any, must at least be subordinated to the duty to put the bonds upon the market before the date of their maturity. There is nothing in the charter or elsewhere which makes the will of the Comptroller absolute in these matters. As an administrative officer of the city, he has no legislative powers. He does not control the fiscal concerns of the city to the extent that he alone may determine for what terms the subway construction bonds of the city shall be issued. It is for the Board of Estimate and Apportionment to determine policies and for the Comptroller to execute them. (New York City Charter, §§ 206, 227, 229; Rapid Transit Act, § 37, subd. 1.)
    3. It was accordingly error to grant a motion for a peremptory order of mandamus requiring defendants to eliminate from the budget of 1928 an item for an amortization installment on rapid transit corporate stock for the independent subway system maturing in 1929, 1930 and 1931.

      Matter of Schieffeliñ v. Walker, 222 App. Div. 260, reversed.
    (Argued January 18, 1928;
    decided February 14, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 16, 1927, which unanimously affirmed an order of Special Term granting a motion by relator for a peremptory order of mandamus to compel defendants to eliminate from the New York city budget for 1928 an item for an amortization installment on Rapid Transit corporate stock maturing in 1929, 1930 and 1931.

      George P. Nicholson, Corporation Counsel (Charles L. Craig and William E. C. Mayer of counsel), for appellants.
    The court was in error in assuming that the absence of an estimate and certificate of the Comptroller nullified the action of the Board of Estimate and Apportionment in making provision for the payment of the city’s debt, (Grimmer v. Tenement House Dept., 205 N. Y. 549; People ex rel. Werner v. Prendergast, 206 N. Y. 405; Wintersteen v. City, 220 N. Y. 62; Matter of City of New York, 217 N. Y. 1; City v. New York City R. Co., 193 N. Y. 543; People ex rel. Metropolitan Life Ins. Co. v.
      Knapp, 193 App. Div. 413; People v. Karr, 240 N. Y. 348.) The Board of Estimate and Apportionment is fully empowered to fix the time of maturity of such corporate stock. (Reformed P. D. Church v. M. A. Bldg. Co., 214 N. Y. 268; People ex rel. Snyder v. Hylan, 212 N. Y. 236; Litchfield Constr. Co. v. City of New York, 244 N. Y. 251.)

      Leonard M. Wallstein and Ralph M. Frink for respondent.
    The attempted appropriation of $13,000,000 for “ amortization installment on Rapid Transit corporate stock * * * maturing in * * * 1931 ” is unauthorized, illegal and void, because there is no such corporate stock issued and outstanding to be amortized and there was none such when the 1928 city budget became operative on January 1, 1928. (Matter of City of New York, 218 N. Y. 274; People v. Flack, 216 N. Y. 123; Bull v. Burton, 227 N. Y. 101; Matter of Cooper, 93 N. Y. 507.) The attempted appropriation of $13,000,000 in the city budget for 1928 is illegal and void, because it lacks the essential foundation, the estimate and certificate of the Comptroller, which is required by charter sections 206 and 229 and which is here absent not by inadvertence or obstinate refusal of the Comptroller, but because the bonds to be amortized by the appropriation were not issued, the Comptroller knew they would not be issued and, in fact, they have not been issued and are not outstanding. (Schieffelin v. Hylan, 106 Misc. Rep. 347; 188 App. Div. 192; 227 N. Y. 593; 227 N. Y. 669; Bd. of County Commrs. of St. Louis Co. v. Nettleton, 22 Minn. 356; Lancaster Co. v. City of New York, 214 N. Y. 11; Merritt v. Village of Portchester, 71 N. Y. 309; People v. City of Geneva, 98 App. Div. 383; Hellwig v. City, 158 N. Y. Supp. 475; People ex rel. Dady v. Prendergast, 203 N. Y. 1; Schieffelin v. Henry, 123 Misc. Rep. 792.)

      Robert Jordan and Austin P. Boleman for Comptroller of the City of New York, respondent.
    The Comptroller’s. estimate and certificate are necessary under charter section 229, and consistent with charter section 149 in that the Department of Finance shall have control of the fiscal concerns of the corporation, and the failure to include the appropriation in question in such estimate and certificate clearly indicates that the Comptroller, in the exercise of his discretion, did not deem it advisable and pertinent in the instant case that such sum was necessary at the present time to pay an obligation to be incurred in the future. (Grimmer v. Tenement House Dept., 205 N. Y. 549; People ex rel. Werner v. Prendergast, 206 N. Y. 405; Wintersteen v. City, 220 N. Y. 62; Matter of City of New York, 217 N. Y. 1; Story v. Craig, 231 N. Y. 40.)
   Pound, J.

On October 27,1927, the Board of Estimate and Apportionment of the city of New York adopted two resolutions which read as follows:

“Resolved, By the Board of Estimate and Apportionment, in relation to various authorizations of rapid transit corporate stock of the City of New York heretofore made, pursuant to the provisions of section 37 of the Rapid Transit Act, the provisions of section 45 of the Greater New York Charter, and the requisitions of the Board of Transportation, for the construction of the city independent system of rapid transit railroads, that the term of the corporate stock thereby authorized, to the extent of Fifty-two million dollars ($52,000,000) now unissued, shall be four (4) years from the date of issue, and that the term of the balance of such various authorizations of corporate stock, unissued, shall be fixed and determined by resolution or resolutions to be adopted by this Board from time to time, and be it further
“Resolved, That the Board of Estimate and Apportionment hereby authorizes the Comptroller of the City of New York to issue and sell, before December 31, 1927, corporate stock to the par value of fifty-two million dollars ($52,000,000) being that portion of the above mentioned various authorizations, as to which a term of four (4) years is hereinbefore fixed.”

On October 31, 1927, it included in the budget for 1928 an item, following the resolutions quoted above, as follows:

For the 1928 amortization installment on Rapid Transit Corporate Stock for the Independent Subway System, maturing in 1929, 1930, 1931......$13,000,000.”

This item has been stricken from the budget by an order of peremptory mandamus granted at Special Term and affirmed by. the Appellate Division on the ground that it was illegal in the absence of an estimate and certificate of the Comptroller as a basis therefor.

The broad question is as to the existing authority of the Comptroller of the city of New York in the exercise of his power as the head of the Department of Finance to control the fiscal concerns of the corporation (Charter, § 149), to check the Board of Estimate and Apportionment in the exercise of its power under Rapid Transit Act (§ 37) to direct the Comptroller to issue the bonds of the city to provide the necessary means for the construction or equipment, or both, of the independent subway system.

That it is the duty of the Comptroller to issue bonds when directed by the Board of Estimate is not questioned, but the respondents assert that he has the right to determine when to issue them and to issue them after the 31st of December, 1927; and that the Board of Estimate may not lawfully include any amortization items therefor in the budget for 1928 until the Comptroller has furnished his certified estimate of the amount of such items.

The specific question before the court on this appeal presents itself as follows: may the Board of Estimate and Apportionment authorize the Comptroller to issue four-year bonds before the end of the year 1927 and provide for the first amortization installment thereon in the budget for the year 1928, although the Comptroller has not certified to the Board his estimate of the amount required for such amortization installment?

City officials can act only under their statutory authority. Their powers are limited and conditioned thereby. The answer depends, therefore, on an analysis of involved provisions of the city charter and other provisions of law.

The Board of Estimate and Apportionment of the city of New York, in the performance of the duties imposed on it by the charter (§ 226) adopts and transmits to the Board of Aldermen an annual budget of the amounts estimated to be required to pay the expenses of conducting the public business of the City of New York.” The budget includes items for the payment of interest and principal of the city debt which the Board of Aldermen may not reduce (§ 226). Its power in this connection is final if the items which it includes under this head are legal. The budget as made in October and completed on December 31, is the basis of the tax levy of the following year.

Section 227 of the charter provides for the payment of the city’s obligations as follows:

§ 227. It shall be the duty of the board of estimate and apportionment, from time to time, to provide for the payment of the interest and principal of the bonds and other obligations of the city, or for which the city is liable, and also to provide for the payment to the commissioners of the sinking fund of any sums directed by special laws to be paid to said commissioners on account of such bonds or obligations and in anticipation of their maturity, and to provide for the raising of the money therefor, in accordance with such special laws and the laws under which such bonds and obligations were issued or created.”

Section 228 of the charter defines the duty of the Board of Estimate when accumulations in the sinking fund are insufficient. It requires the Board to include in the annual budget, on the certification of the Commissioners of the sinking fund, the amount necessary to meet deficiencies in the sinking fund when the accumulations therein are not sufficient to meet the payment of any bonds or stocks falling due in the next calendar year redeemable therefrom. This section has no application to the case before us except as it indicates a duty on the Board of Estimate to provide for deficiencies in the sinking fund on the certificate of the Commissioners of the Sinking Fund unchecked by any act of the Comptroller. This duty is, however, wholly distinct from the duty of providing in advance for annual payments to the sinking fund.

Section 206 of the charter provides for the creation of a sinking fund for the purpose of liquidating the principal of the bonded debt of the city of New York incurred on or after January 1, 1898, as to which no provision for the payment thereof otherwise than from taxation is made, with certain inapplicable exceptions, and further provides as follows:

“For the redemption of such debt out of said sinking fund there shall be annually included in the budget and paid into the sinking fund of the city of New York herein created, -an amount to be estimated and certified by the comptroller, and to be by the board of aldermen and the board of estimate and apportionment inserted in the budget for each year, which with the accumulations of interest thereon shall be sufficient to meet and discharge such bonds or stocks by the time the same shall be payable.”

Section 229 of the charter provides there shall annually be set apart and paid over “ to the commissioners of the sinking fund, as hereinafter directed, and invested by them in the manner provided by law, a sum sufficient, with the accumulation of interest thereon to meet and discharge the amount of said bonds or stocks by the time the same shall be payable, as the same shall be estimated and certified by the comptroller.”

Section 37, subdivision 1, of the Rapid Transit Act (L. 1891, ch. 4, as amended) reads as follows:

“ For the purpose of providing the necessary means for such construction, or equipment, or both * * * of any such road or roads * * * the board of estimate and apportionment * * * from time to time, and as the same shall be necessary * * * shall direct the Comptroller * * *, and it shall thereupon become his duty, to issue the bonds of said City.”

Section 45 of the charter reads as follows:

“ The board of estimate and apportionment and the comptroller of the city of New York shall, anything herein contained to the contrary notwithstanding, be subject to all the duties and obligations prescribed in said chapter four of the laws of eighteen hundred and ninety-one as amended for the board of estimate and apportionment and comptroller therein mentioned. Upon the execution of any contract made pursuant to chapter four of the laws of eighteen hundred and ninety-one, as amended, the board of rapid transit railroad commissioners may, in its discretion, make request upon the board of estimate and apportionment for the authorization of such corporate stock, either for such amount from time to time as they shall deem the progress of the work to require, or for the full amount sufficient to pay the entire estimated expense of executing such contract. In case they shall make requisition for the entire amount, the comptroller shall endorse on the contract his certificate that funds are available for the entire contract whenever such stock shall have been authorized to be issued by said board of estimate and apportionment; and in such case such stock may be issued from time to time thereafter in such amounts as may be necessary to meet the requirements of such contract.”

These sections are not to be read as disconnected and independent provisions of law. They are to be construed, if possible, as a harmonious whole, providing a practical and consistent scheme of municipal administration in connection with the construction of the subways. It, therefore, becomes necessary, for a proper understanding of them, to state the source of the controversy which has arisen between the Comptroller and the Board of Estimate.

The resolutions of the Board of Estimate and Apportionment mark a new policy in relation to the method of raising funds to provide for the construction of the subway system. The Board of Transportation, which is constructing the new city system under authority granted to it by Laws of 1924, chapter 573, recommended such change of policy. It had been the practice of the Board of Estimate, as funds were needed, merely to authorize the Comptroller to issue a stated amount of corporate stock, without specifying either the term or the date of issue. The Comptroller then issued fifty-year corporate stock as and when funds were required, having in view a favorable market for such stock. Under the authority conferred on him by section 189 of the charter, he issued corporate stock notes maturing within a period not exceeding one year.in anticipation of the sale of corporate stock or serial bonds authorized at the time such notes were issued when he deemed it for the best interest of the city to do so, and thereby deferred the issue of the long term stock when in his judgment sound financing of the debt so required. The present policy rests on the theory that the independent subway system cannot be made self-sustaining on a five-cent fare unless not more than forty per cent of its cost is paid by the issue of the usual long term corporate stock and that the balance should be paid out of taxes through the issue of short term stock. The taxpayers would thus pay sixty per cent of the burden of building the subways and posterity would have its burdens lessened. With the soundness of this policy we have no concern. It may be wise or unwise. Opinions differ as to that. We have to consider merely the distribution of power between the Comptroller and the Board of Estimate in relation thereto.

The appellants take the position that the charter requires the Board of Estimate to make provision in the annual budget for the redemption of the city debt; that, as some of its debt is payable from sinking funds, it imposes upon the Comptroller the duty of furnishing annually to the Board, to aid it in the performance of its duty, certified information as to the amount necessary to make payments to the sinking fund for the coming year; and that the failure of the Comptroller to furnish such information does not affect the duty of the Board to provide for such debt redemption.

Unquestionably this contention is not without force. It is elaborated on the appellants’ brief in substance as follows: It is the duty of the Board, and not of the Comptroller, to provide for the payment of the principal and interest of the city debt under section 227 of the charter {supra). Unquestionably the Comptroller is the proper official source of information as to the payments to be made from year to year to the commissioners of the sinking fund for the amortization of such debt, when provision is made for such payments. It does not follow that his determination is jurisdictional and that the Board of Estimate cannot act without it. The charter provisions relative to certification by the Comptroller are general in their terms. They make the Comptroller the source of information rather than the authority for the necessary items. Default in such certification by him does not relieve the Board from its duty to include such items in the budget. If the item is otherwise legal, its full legality does not depend on the official act of the Comptroller.

The wholesale application of a rule that the Comptroller’s certified estimate has no authority might result in confusion in the administration of the city’s financial affairs. We need not go so far in deciding this case as to so hold. The charter does not provide that no amortization items shall be included in the budget other than those which are estimated and certified by the Comptroller. If the Comptroller omits to certify to the Board a legal item, we see no reason why the Board may not supply it.

The decision of the whole matter rests on the power of the Board of Estimate to inaugurate its new policy. If it has the power to inaugurate such a policy, the Comptroller may not set his will against the exercise of such power and thwart the action of the Board. Either the Comptroller has the full statutory power to determine for what term the subway construction bonds shall be issued, when he is directed to issue bonds by the Board, or the Board has full power to direct for what terms such bonds shall be issued, whenever it sees fit to exercise such power. If the Board may, before December 31, 1927, direct the Comptroller to issue subway bonds maturing on or before December 31, 1931, it may also provide for the amortization thereof in the budget of 1928 on the assumption that the Comptroller will obey its directions. The mandate to create a bonded debt maturing on or before a given date carries with it the duty to provide for the amortization thereof. (Charter, secs. 206, 227, 229, supra.)

Doubtless the Comptroller has, under the charter, in a general way, a wide discretion as to when the bonds of the city shall be issued. We need not now determine the exact limits of such discretion. But when the Board of Estimate seeks to put into immediate operation a plan of financing subway construction which calls for an issue of bonds maturing on a given date, discretion, if there is any, must at least be subordinated to the duty to put the bonds upon the market before the date of their maturity. We see nothing in the charter or elsewhere which makes the will of the Comptroller absolute in these matters. As an administrative officer of the city, he has no legislative powers. He does not control the fiscal concerns of the city to the extent that he alone may determine for what terms the subway construction bonds of the city shall be issued. It is for the Board of Estimate to determine policies and for the Comptroller to execute them.

The .Board did not in terms direct the Comptroller to issue the four-year bonds before December 31, 1927. It merely authorized him to issue them before that date and fixed the date of their maturity at not later than four years thereafter; i. e., not later than December 31, 1931. Obviously the plan of financing the subway construction by the issue of four-year bonds could not be put into operation unless he did so issue them. The resolution made it mandatory upon the Comptroller to issue four-year bonds. He may not say: Nevertheless, I will issue bonds for such terms as I see fit.” When the Board authorized the Comptroller to issue four-year subway bonds it was justified in assuming that he would issue them as thus authorized and that he would not attempt to veto and destroy the plan of financing the subway construction adopted by the Board by substituting his own ideas as to the term for which the bonds should be issued and refusing to certify his estimate of the amount required for the sinking fund item. The power of the Board under these conditions to include a proper amortization item in the 1928 budget does not depend on the presence before it of some figures on a piece of paper over an official signature. It rests on its duty under the charter to provide for the proper appropriation to the sinking fund in anticipation of the issue of the bonds. The amortization item in the budget of 1928 was, therefore, proper, in anticipation of the issue of the bonds by the Comptroller.

The order of the Appellate Division and that of the Special Term should be reversed and the application for an order of peremptory mandamus denied, without costs.

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

Ordered accordingly.


text:
    Edward Hardin, Appellant, v. The Morgan Lithograph Company, Respondent.
    Contract — commissions — corporations — evidence — authority of president of corporation to make or ratify contract to pay commissions on business obtained through introduction to prospective customer — error to strike out testimony of plaintiff as to conversation in which president admitted ratification of contract made by agent — such testimony sufficient foundation for evidence of terms of contract — foreign law not proved by citation of cases.
    1. The president of a corporation, as managing agent, may, in the absence of restrictions, make such ordinary contracts as custom and the necessities of the business would justify or require and it may be presumed that he had power to authorize or ratify a contract to pay commissions on business obtained by it through the services of another even though the other agreed to do no more than introduce it to a prospective customer, but the corporation should be allowed to prove that, by reason of its own course of business or the custom of the trade, authority was in truth lacking.
    2. It was, therefore, error, in an action to recover such commissions, to strike out testimony of plaintiff as to a conversation he had had with the president of defendant in which the latter admitted that a contract had been made, that the plaintiff had performed and that defendant had had the benefit thereof.
    3. And such testimony, in the absence of evidence to the contrary, laid the foundation for the admission of testimony of plaintiff as to an earlier conversation he had had with defendant’s agent and would have permitted him to testify for whom the agent was acting and what conversation he had with him, testimony which he had not been permitted to give as he had laid no foundation therefor by showing the agent’s authority to make a contract of the character alleged. Plaintiff should have been permitted to prove his prima Sacie ease and a dismissal of his complaint for failure to establish a cause of action was error.
    4. The law of a foreign State is not proved by the citation of cases on appeal.

      Hardin v. Morgan Lithograph Co., 219 App. Div. 817, reversed.
    (Argued January 19, 1928;
    decided February 14, 1928.)

      Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 29, 1927, affirming a judgment in favor of defendant, entered upon a dismissal of the complaint and a directed verdict on the counterclaim by the court at a Trial Term.

      Howard Osterhout, Burgess Osterhout and Charles F. Bailey for appellant.
    The president of a corporation has power to ratify any contract which he might originally have made for the corporation. (Silva v. Metropolitan Drug Co., 10 J. & S. 307; Smith v. Martin Anti-Fire Car Heater Co., 19 N. Y. Supp. 285; Cairo R. Co. v. Mahoney, 82 Ill. 73; Depot Realty Syndicate v. Enterprise Brewing Co., 87 Oreg. 560; Hosteter v. Shoe Co., 171 Iowa, 346; White v. Elgin Creamery Co., 108 Iowa, 522; Louisville, E. & St. L. Co. v. McVoy, 98 Ind. 391; Braman, Dow & Co. v. Kennebec Gas & Fuel Co., 117 Maine, 291; Singer Mfg. Co. v. Belgart, 84 Ala. 519; Toledo, Wabash & Western Ry. Co. v. Rodrigues, 47 Ill. 188; Toledo, Wabash & Western Ry. Co. v. Prince, 50 Ill. 26.) Prima facie proof that the president of a corporation had power to make (and hence ratify) a contract is made when it is shown that he purported to ratify such contract which his board of directors might have authorized him to make. (Paterson v. Robinson, 116 N. Y. 193; Hastings v. Brooklyn Life Ins. Co., 138 N. Y. 473; Oaks v. Cattaraugus Water Co., 143 N. Y. 430; Sun Printing Assn. v. Moore, 183 U. S. 642; Hotel Woodward Co. v. Ford Motor Co., 258 Fed. Rep. 322; Norman v. Loomis-Manning Filter Co., 123 App. Div. 739; Lyon v. West Side Transfer Co., 132 App. Div. 777; Morawetz on Priv. Corp. [2d ed.] §§ 336, 538, 593; Patterson v. Ongley, 87 Hun, 462; Westchester Mortgage Co. v. McIntire, Inc., 174 App. Div. 446; Gerard v. Empire, 195 App. Div. 244.) Plaintiff’s conversation with Morgan, excluded over plaintiff’s objection and exception, was evidence not only of ratification but some evidence of original authority in Gaylor to make the contract sued on. (1 Mechem on Agency [2d ed.], 354, 355, 356; Olcott v. Tioga R. R. Co., 27 N. Y. 546; Matter of Zinke, 90 Hun, 127; Dickinson v. Salmon, 36 Misc. Rep. 169; Columbia Land Co. v. Tinsley, 22 Ky. L. 1082; Sherman v. Fitch, 98 Mass. 59.)

      Siegfried F. Hartman for respondent.
    Even under the New York doctrine a president has no authority, even prima facie, to make or ratify an unusual or extraordinary contract. (Lyon v. West Side Transfer Co., 132 App. Div. 777; Caldwell v. Mut. Reserve Fund Life Assn., 53 App. Div. 245; Bassick v. Ætna Explosives Co., 246 Fed. Rep. 974; Com. Wood & Cement Co. v. Northampton P. C. Co., 115 App. Div. 388; 190 N. Y. 1; Stanley v. Franco-American Ferment Co., 97 Misc. Rep. 401; Chard v. Ryan-Parker Constr. Co., 182 App. Div. 455; Thompson v. Marseillaise French Baking Co., 85 Misc. Rep. 392; Usher v. N. Y. C. & H. R. R. R. Co., 76 App. Div. 422; 179 N. Y. 544; Greaves v. Amer. Inst. for Scientific Research, 114 Misc. Rep. 413; Tobin v. Roaring Creek & C. R. Co., 86 Fed. Rep. 1020; Camacho v. Hamilton Bank Note & Eng. Co., 2 App. Div. 371.) Under the law of Ohio, under which the defendant was incorporated and where the alleged ratification occurred, Morgan, as president, had no authority to make any contract with the plaintiff. (Belting Co. v. Gibson, 68 Ohio St. 442; Scollan v. Lammers Co., 14 Ohio App. 130; Indemnity Co. v. Shovel Co., 112 Ohio St. 136; Foundry Co. v. Cheseborough, 18 Ohio C. C. 783; Matter of Furniture Company, 7 Ohio L. R. 555; New York Starch Co. v. Gruner, 13 Ohio C. C. [N. S.] 355; Second Mutual Life Ins. Co. v. Shotte & Sons Co., 11 Ohio C. C. [N. S.] 404; Marmit Co. v. Cinn. City, 12 Ohio C. C. [N. S.] 227; Armstrong v. Bank, 152 U. S. 346; Wadsworth v. Reir, 13 Ohio St. 123.) Assuming Morgan had authority to ratify a contract such as that here involved, the evidence as to ratification was clearly inadequate. (Bright v. Canadian Int. Stock Yard

      Co., 83 Hun, 482; Trustees, etc., v. Bowman, 136 N. Y. 521; Pope v. Hoyt, 200 App. Div. 475; 235 N. Y. 526; Pritchard v. Sigafus, 103 App. Div. 535; Dunning v. Co. of Orange, 139 App. Div. 249; Weber v. Bridgman, 113 App. Div. 600; Indemnity Co. v. Shovel Co., 112 Ohio St. 35; Slocum v. Gilman, 84 Hun, 405; Norden v. Duke, 120 App. Div. 1; Merritt v. Bissell, 155 N. Y. 396; Mechem on Agency [1st ed.], § 131.) The plaintiff’s proof failed to show that Gaylor had any authority to make a contract such as that here involved. (Mechem on Agency, § 899; Story on Agency [9th ed.], § 387; Kalina v. Gair Co., 125 N. Y. Supp. 1040; Jones v. Keeler, 81 N. Y. Supp. 648; Atlee v. Fink, 75 Mo. 100; National Cash Register Co. v. Ison, 94 Ga. 463; National Cash Register Co. v. Hagen, 74 Tex. Civ. App. 281.)
   Pound, J.

The complaint alleges that:

II. On or about the 1st day of July, 1918, or prior thereto, the defendant promised plaintiff that if plaintiff introduced defendant to Famous Players-Lasky Corporation or officers or agents thereof, and if thereafter defendant secured lithograph business from said Famous Players-Lasky Corporation, defendant would pay plaintiff five (5%) per cent commission on the gross lithograph business which defendant should do with said Famous Players-Lasky Corporation.
“ III. Thereafter and pursuant to said agreement plaintiff did introduce defendant to Famous PlayersLasky Corporation or officers or agents thereof, and upon information and belief defendant thereafter did lithograph business with the Famous Players-Lasky Corporation, the exact amount of which plaintiff does not know and has no means of ascertaining.
IV. Plaintiff has duly performed all the terms, conditions and promises of said agreement on his part to be performed ” and thereon plaintiff demands judgment for $100,000.

The answer puts in issue these allegations but admits that defendant had done lithograph business with the Famous Players-Lasky Corporation. A counterclaim asks judgment for $2,000 on a promissory note, which has been had against plaintiff.

That defendant is in the billboard lithograph business and that Famous Players-Lasky Corporation uses billboard lithographs for advertising its moving pictures may be assumed without hesitation. On the trial, it appeared that plaintiff had a large experience in the billboard advertising business. He testified that in 1917 he met Edward Gaylor, a salesman for the defendant company in New York, in connection with another contract for this class of work. He was not allowed to testify for whom Mr. Gaylor was acting, or what conversation he had with him, as he had laid no foundation therefor by showing Gaylor’s authority to make a contract of the character alleged in the complaint for the defendant company. Dropping this line of inquiry temporarily, plaintiff gave evidence of a conversation with Mr. Morgan, the president of the defendant, in April, 1919, in Cleveland, Ohio, as follows: Q. What was the conversation with Mr. Morgan in April, 1919, when you saw him in Cleveland? A. I told him I want to get $10,000 to go into business, to finance my business and he said he couldn’t let me have that much money. I said, Well, there is quite a lot of money coming to me on that contract, the Famous Players.’ He says, There wont be anything due on that for a year, we have to take over about $300,000 worth of lithographs from them and give them credit for it before we will get any money for ourselves out of it.’ Finally — I said to him, Can’t you let me have some money personally? ’ He finally decided to let me have a personal loan of $2,000, which was independent of the Famous Players,” and further testified that The first day he told me — the first day I saw him I didn’t get the money, he said to see him the next day. I saw him the next day and he gave me a check for $2,000 and I gave him a note for $2,000. After he told me that the contract — there wouldn’t be any money due me on the contract until after they had disposed of all the lithographs they had taken over from the Famous Players,” and gave a third statement of the conversation as follows: “ Mr. Morgan at that time told me it would be some time before any of that commission would be due, something like about a year before they would start to make any money out of the company. I said, Well, I will have to let it go until such time.’ So he made this personal loan, which was entirely separate and independent from the other,” and again he testified that Morgan said: “ It will be a nice contract. There would be a lot of money made out of it and it would take some time.”

This evidence was all stricken out on defendant’s motion and an exception was taken. It was stricken out because the court ruled in substance that the president of a corporation, as such, had no authority to ratify an unauthorized act of a salesman, or to ratify any agreement that he as president was not authorized to make.

Plaintiff then made another ineffectual effort to prove the conversation he had with Gaylor in 1918.

Defendant’s counsel made a concession as follows: “For the purpose of expediting the trial, I make the concession which is intended to be simply this, that if the plaintiff was able to prove a contract, such as is claimed in the complaint, then we concede that there would he an amount of damage. ’ ’ Plaintiff’s counsel also stated without question that “ It is conceded that there was a contract made between Famous Players and the defendant on September 16, 1918, or thereabouts, whereby the defendant was to make lithographs for Famous Players, and that a large volume of business was done under that contract, and that if the Court would permit the conversation between the plaintiff and Mr. Gaylor, which has already been excluded; and if the Court would permit to stand the conversation between the plaintiff and Mr. Morgan, which the Court has stricken out, the plaintiff could produce evidence of damage.”

The complaint was then dismissed for failure to establish a cause of action, without the offer of further proof by plaintiff. As he was not allowed to prove the contract, it would have been idle for him to attempt to show performance and damages. It may be assumed that, if plaintiff could lay a proper foundation for evidence of the conversation with Gaylor, he would testify to the terms of the contract as set forth, in the complaint and give evidence bearing on performance on his part and damages.

This is a question merely of making out a prima facie case by the plaintiff so as to shift the burden of going on with the proof to the defendant. Did defendant’s president have power, prima facie, to ratify a contract of the character set forth in the complaint made between plaintiff and defendant through Gaylor, the defendant’s employee? If so, did plaintiff’s evidence of his conversation with the president have sufficient probative force as evidence of such ratification so that plaintiff should have been allowed to go on with his case?

The trial proceeded on the theory that the directors of a business corporation could authorize or ratify a contract to pay commissions on business obtained by it through the services of another,' even though the other agreed to do no more than introduce it to a prospective customer but that no presumption existed that the president had such authority. The presumption as to the authority of the president of a corporation has been broadly stated: “ The president, having full personal charge of the business which the defendant was organized to transact, represented the corporation and prima facie he had power to do any act which the directors could authorize or ratify.” (Hastings v. B. L. Ins. Co., 138 N. Y. 473, 479; Oakes v. C. W. Co., 143 N. Y. 430, 436).

The president, as managing agent, may, in the absence of restrictions, make such ordinary contracts as custom and the necessities of business would justify or require. (Peck v. Dexter S. P. & P. Co., 164 N. Y. 127, 129; Powers v. Schlicht H. L. & P. Co., 23 App. Div. 380; affd. on op. below, 165 N. Y. 662.) The authority of the president, his apparent power to make or ratify the contract in question, may be presumed, but the corporation should be allowed to prove that, by reason of its own course of business or the custom of the trade, authority was in truth lacking.

This particular contract is said to be so broad and sweeping as to enable us to take judicial notice of its extraordinary quality and remove it from the category of implied authority. The court cannot say on the meager record before it that the contract is so extraordinary as to be beyond the implied power of ratification by the president. On the trial it was conceded that an introduction in business circles may have a commercial value. The question is one of evidence rather than inference.

The claim is made that in Ohio in the absence of express authority, and of such a course of dealing with the world as clearly implies authority to do the controverted act the corporation can be bound only by its board of directors ” (Belting Co. v. Gibson, 68 Ohio St. 442.) The Ohio law is not proved by the citation of cases on appeal and the point is not raised on the record.

Plaintiff should have been permitted to prove his prima facie case. He was thrown out of court somewhat unceremoniously. He offered evidence of ratification. The president of the defendant said, if plaintiff is to be believed, that no commissions were due on plaintiff’s contract. The terms of the contract were not stated but there was an implied admission that a contract had been made and performance had; that it had been knowingly and consciously ratified and that the defendant had had the benefit of it. So far as the admissions of the president went, implying, in the absence of evidence to the contrary, his authority to make them, they laid a foundation for the "admission of the evidence of the conversation with Gaylor, subject to defendant’s right to negative the authority of its president thus prima facie established.

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

Cardozo, Ch. J., Crane, Lehman and O’Brien, JJ., concur; Andrews and Kellogg, JJ., dissent.

Judgments reversed, etc.'


author: Cardozo, Ch. J.

text:
    Frances McFarlane, Respondent, v. City of Niagara Falls, Appellant.
    Municipal corporations — Niagara Falls (city of) — streets — nuisance — contributory negligence a defense to action for injury from nuisance originating in negligence — maintenance of sidewalk in dangerous condition a nuisance growing out of negligence — action for injury to traveler from stumbling over projection in walk — erroneous charge that contributory negligence though proved is not a defense.
    1. Whenever a nuisance has its origin in negligence, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance. In such a case a plaintiff though pleading nuisance, is under a duty to show care proportioned to the danger.
    2. The maintenance by a municipality of a sidewalk in a dangerous condition, by reason of a projection of the cement walk, constitutes a nuisance growing out of negligence. The nuisance is not absolute: In an action, therefore, to recover for injury to a traveler, caused by her catching her heel against the projection and stumbling, plaintiff must show her freedom from contributory negligence, even though the case be tried upon the theory of nuisance. It is, accordingly, error for the trial judge to instruct the jury that contributory negligence, though proved, would not avail as a defense.

      McFarlane v. City of Niagara Falls, 220 App. Div. 799, reversed.
    (Argued January 13, 1928;
    decided February 14, 1928.)

      Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 7, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      George W. Knox for appellant.
    There is no absolute nuisance or nuisance per se. The city was authorized to construct this walk. It did not construct it without or against statutory authority. The trial and appellate courts have erred in applying authorities relating to absolute nuisance when this is an action for nuisance in fact. (Melker v. City of New York, 190 N. Y. 481; Cuilo v. N. Y. Edison Co., 85 Misc. Rep. 6; Berger v. Content, 47 Misc. Rep. 391.) In nuisance in fact full knowledge by plaintiff and her voluntarily going into the situation as she undisputedly did in this case, precludes her recovery. (Linzey v. Amer. Ice Co., 131 App. Div. 333; 197 N. Y. 605; Dygert v. Schenck, 23 Wend. 452; McGinnis v. Hyman, 63 Misc. Rep. 316; Harlow v. Humiston, 6 Cow. 192; Chaffee v. Constr. Co., 77 Mich. 629; Keating v. Metropolitan St. Ry. Co., 105 App. Div. 364; Whalen v. Citizens Gas Light Co., 151 N. Y. 70.) The trial court erred in charging the jury that plaintiff “ was bound to no special care in seeking to avoid any accident there, and that this plaintiff has a right to assume that the sidewalk and this part projecting was as safe as any other part of the sidewalk.” (Harlow v. Humiston, 6 Cow. 192; Williams v. City of New York, 214 N. Y. 260; Dygert v. Schenck, 23 Wend. 452; Irwin v. Sprigg, 6 Gill, 200.) The trial court erred in charging the jury “ that if the jury find that if the accident was caused by her negligence and by her negligence alone, or on account of a mishap or accident for which nobody was responsible why the plaintiff cannot recover. But if it was caused by the defendant maintaining a dangerous place there and that the maintenance of that dangerous place was either the entire cause or was a part cause of this accident then the plaintiff can recover.” (Harlow v. Humiston, 6 Cow. 192; Dygert v. Schenck, 23 Wend. 452; Crommelin v. Coxe Co., 30 Ala. 329; Irwin v. Sprigg, 6 Gill. 200; Flower v. Adam, 2 Taunt. 314; Lane v. Crombie, 12 Pick. 177; Linzey v. Amer. Ice Co., 131 App. Div. 333; 197 N. Y. 605; Hunt v. Mayor of New York, 109 N. Y. 140.)

      Francis T. Findley for respondent.
    The action was properly submitted to the jury on a thoery of nuisance. (Hogle v. Franklyn Mfg. Co., 199 N. Y. 388; Herman v. City of Buffalo, 214 N. Y. 318; Landau v. City of New York, 180 N. Y. 48; Metzroth v. City of New York, 241 N. Y. 470; Klepper v. Seymour House Corp., 246 N. Y. 95; Melker v. City of New York., 190 N. Y. 481; Spier v. City of Brooklyn, 139 N. Y. 6; Linzey v. Amer. Ice Co., 131 App. Div. 333; Clifford v. Dam, 81 N. Y. 52; McGuire v. Spence, 91 N. Y. 305; Callanan v. Gilman, 107 N. Y. 360.) Contributory negligence, in its usual meaning, is not a defense in this case. (Maltbie v. Bolting, 6 Misc. Rep. 339; Hogle v. Franklyn Mfg. Co., 199 N. Y. 388.)
   Cardozo, Ch. J.

Plaintiff, walking in the city of Niagara Falls, stumbled as she was stepping from the driveway to the walk. She caught her heel against a fan-like projection where the cement had melted and run. The projection jutted out about sixteen inches, and was irregular and slanting with declivities and hollows. The same conditions had existed since the construction of the walk two or three years before. The plaintiff lived in the neighborhood. She had noticed the projection at other times, though she had paid no particular attention to it. Her mishap occurred during an afternoon in late December after darkness had set in. She suffered injuries for which she sued.

The case was tried upon the theory of nuisance. The jury were told in substance that a nuisance existed if the city maintained the walk in a dangerous condition. Danger, we think, there was in unreasonable degree, or so a jury might find. A traveler is not always on his guard against a projection so unusual. He measures his gait in the belief that he has a clear space ahead of him before stepping on the walk. He is taken by surprise when something strikes against his heel and stays the motion of his foot. A prudent municipality would know that if this should come to pass, there would be danger more than fanciful.

If danger there was, then also there was nuisance, though nuisance growing out of negligence. Nuisance as a concept of the law has more meanings than one. The primary meaning does not involve the element of negligence as one of its essential factors (Heeg v. Licht, 80 N. Y. 579). One acts sometimes at one’s peril. In such circumstances, the duty to desist is absolute whenever conduct, if persisted in, brings damage to another (21 Halsbury, Laws of England, p. 507, § 845). Illustrations are abundant. One who emits noxious fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions (McCarty v. Nat. Carbonic Gas Co., 189 N. Y. 40). He is not to do such things at all, whether he is negligent or careful. One who digs a hole in the highway will not be heard to say if he dug it without license that the guards placed about it were destroyed without his fault (Congreve v. Smith, 18 N. Y. 79; Wolf v. Kilpatrick, 101 N. Y. 146). He was a wrongdoer in digging, and diligence in guarding does not eradicate his fault. Other situations there are, however, where what was lawful in its origin may be turned into a nuisance by negligence in maintenance. The coal hole, built under a license, may involve a liability for nuisance, if there is negligence in covering it (Trustees of Canandaigua v. Foster, 156 N. Y. 354). The tumbledown house abutting on a highway is transformed into an unlawful structure if its ruinous condition is a menace to the traveler (Timlin v. Standard Oil Co., 126 N. Y. 514). In these and like situations, the danger being a continuing one, is often characterized as a nuisance, though dependent upon negligence. Indeed, one of the most familiar instances of nuisance is a highway out of repair (Pollock, Torts [10th ed.], p. 1016). Narrow, too, is the line between nuisance and negligence. One can create a nuisance by leaving a wagon in the street (Cohen v. Mayor, etc., of N. Y., 113 N. Y. 532). If the danger threatens the public, the nuisance is classified as common; private, if it threatens one person or a few (Halsbury, supra, p. 515, § 865).

We have gone into these distinctions for their bearing on the law of contributory negligence. The trial judge told the jury that contributory negligence, though proved, would not avail as a defense. If the defendant was at fault at all, liability would follow, though plaintiff was at fault also. His final word was this: I intended to charge that if the jury found that the accident was caused by her negligence, and her negligence alone, or on account of a mishap or accident for which nobody was responsible, the plaintiff cannot recover. But if it was caused because the defendant maintained a dangerous place there, and the maintenance of that dangerous place either was the entire cause or was a part cause of this accident, then the plaintiff can recover.”

We think the charge was error.

Not a little confusion runs through the reports as to the effect of contributory negligence upon liability for nuisance. Statements appropriate enough in their application to nuisances of one class have been thoughtlessly transferred to nuisances of another. There has been forgetfulness at times that the forms of actions have been abolished, and that liability is dependent upon the facts and not upon the name. Confining ourselves now to the necessities of the case before us, we hold that whenever a nuisance has its origin in negligence, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance (Junkerman v. Tilyou Realty Co., 213 N. Y. 404, 408; Uggla v. Brokaw, 117 App. Div. 586, 591; Lusk v. Peck, 132 App. Div. 426, 432; 199 N. Y. 546; Hartman v. Lowenstein, App. Term, 90 Misc. Rep. 686, 689). Very often the sufferer is at liberty to give to his complaint either one label or the other. It would be intolerable if the choice of a name were to condition liability. The snow or ice suffered by a municipality to remain upon the walk is one wrong, and one only, whatever the traveler may call it (Williams v. City of N. Y., 214 N. Y. 259).

The cases in this court hold nothing to the contrary.

Clifford v. Dam (81 N. Y. 52) was a case of injury to a traveler through an opening in a highway. License was not pleaded. We held that unless pleaded, it might not be proved. The defendant, therefore, was a wrongdoer, and subject to a liability not dependent upon negligence. Much of what was said as to contributory negligence was unnecessary to the decision. The trial judge had not charged that contributory negligence would not affect a recovery. On the contrary, he had charged (as an examination of the record shows) that the plaintiff must fail “if by any negligence on his part he contributed to the injury, no matter in how slight a degree.” What followed was explanatory of the meaning of contributory negligence in the situation then at hand. The jury were reminded that the plaintiff was lawfully upon the highway. “ He was in a position where he was not bound to keep a special lookout for pitfalls; he had a right to assume that the public highway would be safe for all travelers; and he had a right to act on that assumption.” To this there was no exception. There was little more than an expansion of the same thought in the opinion rendered here.

McGuire v. Spence (91 N. Y. 303, 305) was another case of an uncovered opening. It was decided upon an assumption for- the purpose of an appeal that contributory negligence, if proved, would have been an obstacle to relief. All that was held was that the jury were at liberty to find that such negligence was absent. Negligence,” it was said, is a relative term.” One who passes along a sidewalk has a right to presume it to be safe.” There is no duty to be alert for danger where none should be expected (cf. Mullins v. Siegel-Cooper Co., 183 N. Y. 129, 138; Jennings v. Van Schaick, 108 N. Y. 530).

Nolan v. King (97 N. Y. 565, 571, 572) supplements very neatly the ruling in McGuire v. Spence (supra). It shows how there comes, with changed expectations of the likelihood of danger, a changed standard of precaution. There a temporary bridge had been laid over a walk while the work of building was under way. The bridge, though put up under permit, was said to be unsafe. The court held that a passenger was not at liberty to cross with as little heed and care as upon a completed pavement.

Kelly v. Doody (116 N. Y. 575) was a case of an excavation in a street. Plaintiff, who lived nearby, had knowledge of the trench, for which a permit had been issued. A charge that a recovery would not be affected by contributory negligence, was held to be erroneous. “ The action does not belong to that class of actions where the obstruction in a street is without authority and wholly wrongful, such as the case of Clifford v. Dam (81 N. Y. 52), and the cases there cited.”

Weston v. City of Troy (139 N. Y. 281) is a case of a fall upon ice, and Whalen v. Citizens’ Gas Light Co. (151 N. Y. 70) one of a fall upon a flagstone. In each there was a ruling that a traveler who sees the danger must use reasonable care to overcome or escape it. “ The presumption which a wayfarer may indulge, that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects; has no application where the danger is known and obvious ” (Weston v. City of Troy, supra).

The danger may be so apparent that a traveler ought to have seen it, though he professes he did not (see Whalen v. Citizens’ Gas Light Co., supra, p. 73; Mosheuvel v. District of Columbia, 191 U. S. 247). A presumption of safety will not serve as an excuse for blind indifference to consequences. One must use the streets as others use them (cf. Casey v. City of Malden, 163 Mass. 507). The wayfarer, who has the sense of sight, is not to close his eyes or travel as one blind (Davenport v. Ruckman, 37 N. Y. 568). The driver is not to fling aside the reins, and rush headlong into the ditch. We said of the plaintiff in the Whalen case: “It is difficult to conceive how she could have avoided seeing the obstacle unless she was heedlessly proceeding in utter disregard of the precautions usually taken by careful and prudent people (151 N. Y. at p. 74). If so, the fault was hers.

The rule to be extracted from these and like cases (e. g., Chisholm v. State, 141 N. Y. 246; Morrell v. Peck, 88 N. Y. 398; Minick v. Troy, 83 N. Y. 514) may now "be formulated. At least where the substance of the wrong is negligence, a plaintiff, though pleading nuisance, is under a duty to show care proportioned to the danger. Reasonable care is merely care so proportioned. The danger may be seen or unseen. If seen, there must be effort to avoid it. If unseen, the inquiry will be whether one using a street as travelers commonly do, would perceive the danger, and escape it. The relativity of the concept of negligence is to be kept in mind throughout. Movement on a highway is not governed by a special rule unknown to movement elsewhere. One who walks through the aisle of a department store at the invitation of the proprietor does not look for traps and obstacles any more than on a street if there is nothing to suggest them. The act should fit the need (cf. Shearman & Redfield on Negligence, § 375, and cases there cited).

What we rule in this case is limited to a situation where negligence is the basis of the nuisance, and this for the reason that nothing more is called for by the facts. The defendant was not doing an act inherently unlawful when it paved the city streets. Power to regulate the streets had been given by the charter. What was dangerous and wrong did not inhere in the work contracted to be done, but in the manner of its doing (Hyman v. Barrett, 224 N. Y. 436, 439). The nuisance was not absolute.

In thus limiting our ruling, we are not to be understood as holding by implication that where the nuisance is absolute, the negligence of the traveler is a fact of no account. One of the earliest cases in the books on the subject of contributory negligence is Butterfield v. Forrester (11 East, 60). A pole had been placed across a highway. There was thus a nuisance in the strictest sense. Plaintiff riding violently ran into the pole, and was hurt. The court did not hold that his fault was immaterial. Bayley, J., at the trial instructed the jury that if a person could have seen and avoided the obstruction, and if they were satisfied that the plaintiff was riding along the street extremely hard and without ordinary care, they should find for the defendant, which they accordingly did. Lord Ellenborough, C. J., in refusing a new trial, laid down the rule of law: “ One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction of the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.” (Butterfield v. Forrester has been a leading case in England (1 Beven on Negligence [2d ed.], p. 169; Pollock on Torts [10th ed.], p. 487; Salmond on Torts [3d ed.], pp. 34, 36) and has been recognized as law in decisions in this State (Harlow v. Humiston, 6 Cow. 189, 191; Dygert v. Schenck, 23 Wend. 446; cf. Congreve v. Smith, 18 N. Y. 79; Corcoran v. City of N. Y., 188 N. Y. 131, 140; Smith v. Smith, 2 Pick. 621; Hill v. Seekonk, 119 Mass. 85). Very likely the breadth of its pronouncement calls for revision and restriction. A clew to these will be found in cases such as Muller v. McKesson (73 N. Y. 195, 201) and Lynch v. McNally (73 N. Y. 347) defining liability for a particular kind of nuisance, the harboring of vicious animals (cf. Bohlen, Studies in the Law of Torts, p. 514). In nuisance of that order, the fault that bars recovery is fault so extreme as to be equivalent to invitation of injury or, at least, indifference to consequences. Here is a borderland where the concept of contributory negligence merges almost imperceptibly into that of acceptance of a risk (Bohlen, supra, p. 500; Warren, Volenti non fit injuria, 8 Harv. L. R. 457, 459, 461). Very often the difference is chiefly one of terminology. In strictness, however, to make out acceptance of the risk there must be foresight of the consequences (Smith v. Baker, 1891, A. C. 325, 337, 355; Larson v. Nassau El. R. R. Co., 223 N. Y. 14; Warren, supra). Behavior so reckless as to indicate indifference to peril on the part of a person of normal understanding may turn out in a given instance to be only contributory negligence, as where a drunken man, unable to measure the risk, drives madly through a crowded street. We have never yet held that fault so extreme can co-exist with a right of action for damages, however absolute the nuisance (cf. Chisholm v. State, 141 N. Y. 246; Morrell v. Peck, 88 N. Y. 398; Minick v. City of Troy, 83 N. Y. 514, cases of unguarded openings in streets and bridges). Much depends upon the question, what use of a highway would be reasonable and fitting if the nuisance were not there. The owner of land who casts noisome smells into my house will not be heard to say that I could shut them out with greater care in closing doors and windows. He may not thus limit a use that except for his encroachments would be appropriate and natural. But highways have their dangers that would remain to place limits upon user if nuisances were unknown. There would still be obstacles incidental to the manner of their layout and others incidental to the traffic of pedestrians and vehicles. Street risks are a by-word in law as well as life (Matter of Katz v. Kadans & Co., 232 N. Y. 420). The privilege of user is thus conditional and relative. The traveler is at fault if he abuses it. He must keep within the bounds of conduct proper to a traveler, and this for the safety of others as well as for his own.

When a case of absolute nuisance shall be here, there will be need to determine whether contributory negligence in any sense is a factor to be weighed in determining liability. The factor is not eliminated by saying that to make out contributory negligence in situations of that order the conduct, if attributed to a man of' normal understanding, must betoken indifference to consequences, known or unknown. This may be merely to say in other words that there is a duty of reasonable vigilance in proportion to the risk. Very often, something close to indifference must appear though the basis of liability is nuisance growing out of negligence (McGuire v. Spence, supra). There are times even then, as we have already pointed out, when fault must approach a complete abandonment of caution to make out the absence of ordinary care. We leave the question open whether in cases of absolute nuisance affecting travel on a highway, the test is greatly different.

What remains is to apply the law here stated to the facts. The plaintiff had observed this projection during her walks about the neighborhood. She could hardly fail to observe it, for it was sixteen inches long. She does not tell us how easily it could be seen in the conditions of light and shadow prevailing when she fell. She does not even say whether she saw it. She rests her case upon the statement that catching her heel on the cement, she was thrown to the ground. We are far from holding that a jury, applying to her conduct the appropriate standard of vigilance, should have found her at fault. There was error in instructing them that even though they did, the fault was immaterial.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted with costs to abide the event.

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

Judgments reversed, etc.


author: Lehman, J.

text:
    The People of the State of New York, Respondent, v. Victor Ales, Appellant.
    Crimes — arson in first degree — evidence —■ sufficiency of evidence to warrant conviction — provision in New York city charter that evidence taken upon investigation into fires shall not be used in criminal action does not apply to admissions in informal conversation — testimony of assistant fire marshal as to conversation with defendant after fire, properly received.
    1. The evidence upon trial of an indictment for arson in the first degree examined and held sufficient to warrant a verdict of conviction.
    2. Section 779 of the charter of the city of New York (L. 1901, ch. 466), authorizing and empowering the fire commissioner or a chief fire marshal or deputy chief fire marshal to “ investigate, examine and inquire into ” fires, compel the attendance of any witness and administer an oath or affirmation and providing that false swearing shall be punishable as perjury but that testimony or evidence “ taken as aforesaid * * * shall in no manner be used in any criminal proceeding or action,” renders incompetent, in a subsequent criminal proceeding or action, only testimony or evidence taken upon an examination in which an unwilling witness may be compelled to testify under oath. It does not apply to admissions made in an informal conversation between an assistant fire marshal and the defendant where there was no suggestion that he might be compelled to speak.
    3. Testimony, therefore, of the assistant fire marshal as to a conversation between defendant and himself on the morning after a fire in defendant’s shop in which defendant made admissions tending to show that he desired to dispose of his business for a price less than the amount for which the shop and its contents had been insured, was properly received.

      People v. Ales, 220 App. Div. 743, affirmed.
    (Argued January 16, 1928;
    decided February 14, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 29, 1927, which affirmed a judgment rendered at a Trial Term for the county of Kings upon a verdict convicting the defendant of the crime of arson in the first degree.

      Benjamin Fagan for appellant.
    Substantial error was committed by the trial justice in permitting over objection seasonably taken, the testimony of the assistant fire marshal. (People v. Tinauer, 196 App. Div. 896; People v. Klein, 185 App. Div. 86.)

      Charles J. Dodd, District Attorney {Henry J. Walsh of counsel), for respondent.
    The testimony of the fire marshal was competent and admissible. (People v. Schneider, 154 App. Div. 203; People v. Klein, 185 App. Div. 86.)
   Lehman, J.

Between midnight and one o’clock in the morning of January 3, 1925, the Fire Department was called upon to. extinguish a fire at 141 Ten Eyck street in the borough of Brooklyn. The building was a five-story brick store and tenement house. One hundred and two persons lived in the building. The defendant leased and operated a barber shop on the first floor. The fire was in the barber shop. The chairs and towels in the shop were soaked with gasoline. Apparently the fire had been started at several places in the shop. The fire marshal’s office was informed of the condition surrounding the fire. Eugene J. Shields, assistant fire marshal of the city of New York, made an examination of the premises at quarter past two on the same morning. He concluded that the fire in the barber shop was not due to an accidental cause but had an incendiary origin. Indeed that was quite apparent. At that time the defendant was not present. The assistant fire marshal left after he had examined the shop and its contents. He returned at about eight o’clock the same morning. He then questioned the defendant. The defendant stated that he knew nothing about the fire and had left the premises before ten o’clock the previous evening. After this conversation the assistant fire marshal ordered the defendant’s arrest. Subsequently the defendant and one Frederick L. Dixon were indicted upon the charge of arson in the first degree.

There is no doubt that the fire was deliberately planned and set. Frederick L. Dixon as a witness for the People testified at the trial of the defendant that he alone had been present when the fire started and that he had lighted the fire, but that he was induced to act by the defendant’s promise to pay two hundred dollars after the insurance on the shop was collected. This the defendant denied.

The shop was insured for the sum of one thousand dollars. If the business and the contents of the shop were worth less than that sum the defendant might derive profit from the fire. The defendant claims that they were worth more to him. Unless the defendant agreed to pay Dixon, it is hard to see how Dixon or any other person could profit from Dixon’s crime. The defendant claims that Dixon’s act was induced not by promise of reward but by a desire to injure the defendant. The jury has rejected the defendant’s contentions. It has chosen to believe Dixon, and the defendant has been convicted of arson in the first degree. The evidence fully sustains the finding of the jury.

A significant part of the evidence against the defendant is the testimony of Eugene J. Shields, assistant fire marshal, as to the conversation between the defendant and himself on the morning after the fire. According to that testimony the defendant then made admissions which tend to show that the defendant desired to dispose of the business for a price less than the amount for which the shop and its contents had been insured. The defendant maintains upon this appeal that testimony by a fire marshal of a conversation held while the marshal was conducting an investigation of the origin, details or management of a fire in the city of New York is incompeten't under the provisions of section 779 of the Greater New York charter.

That section authorizes and empowers the fire commissioner himself or by a chief fire marshal or deputy chief fire marshal to “ investigate, examine and inquire into ” fires. Such investigation may be informal, like an investigation or inquiry by the police. An informal investigation conducted without power to compel attendance of witnesses might not result in the disclosure or discovery of all the circumstances which the investigating officer deems necessary or desirable. For that reason the officer in and about ” any examination, investigation or inquiry may obtain subpoenas and compel the attendance of any witness and the production of books or documents. Failure to obey a subpoena or refusal to answer a pertinent question may be punished by the Supreme Court as for a contempt of its order. The investigating officer in conducting an examination as aforesaid may administer an oath or affirmation, and false swearing shall be punishable as perjury. “ Testimony or evidence taken as aforesaid shall be for the information and instruction of said fire commissioner * * * and shall in no manner be used in any criminal proceeding or action.”

The intent of the Legislature in enacting that testimony or evidence “ taken as aforesaid * * * shall in no manner be used in any criminal proceeding or action ” seems to us quite clear. Where the investigating officer “ in and about any examination, investigation or inquiry ” exercises the power to compel the giving of testimony and the production of evidence and to administer an oath, the analogy of such an inquiry to a judicial inquiry becomes so close that the Legislature has seen fit to safeguard the constitutional guaranty that no person shall be compelled in any criminal case to be a witness against himself,” by provision that testimony or evidence so taken shall not be used in any criminal proceeding or action. Similar provision has been made in many other statutes. (See Canal Law, section 20; Debtor & Creditor Law, section 16; Civil Practice Act, sections 791 and 1219; Justice Court Act, section 486; Penal Law, sections 713, 737, .1472, 1716, 1787, 1916, 2038, 2097.) The list is by no means complete. In all these statutes the purpose of the provision is clearly apparent. No less clear is the intent and purpose in the statute now under consideration. It does not provide, expressly or impliedly, that no admissions made by any person to a fire marshal during an investigation of a fire may be shown in any criminal proceeding or action; it renders incompetent in a subsequent criminal proceeding or action only “ testimony or evidence taken as aforesaid,” that is, testimony or evidence taken upon an examination in which an unwilling witness may be compelled to testify under oath.

Here it appears that the defendant made the admissions during an informal talk with the fire marshal. The appearance of the defendant and the answers he gave were voluntary. He spoke because he wished to speak, without any suggestion that he might be compelled to break his silence. What he said possessed no characteristic of testimony or evidence, and the investigation then being conducted by the fire marshal has no analogy to a judicial inquiry. Evidence of what he said under such circumstances is not rendered incompetent by the statute. The purpose of the privilege against self-incrimination has always been to prevent “ the employment of legal process to extract from the person’s own lips an admission of his guilt which will thus take the place of other evidence.” (Wigmore on Evidence [2d edition], section 2263.) In the absence of a clear expression of other legislative intent, the field of operation of a statute which safeguards the privilege against self-incrimination should not be extended beyond the historic limits fixed by the purpose and spirit of the privilege itself.

In People v. Schneider (154 App. Div. 203) it was held that an-admission made to the fire marshal by an accused after his arrest might be given in evidence upon the trial of the accused. In People v. Klein (185 App. Div. 86) the court held that the People might not prove at a trial admissions made to a fire marshal upon a previous protracted hearing where twelve to twenty witnesses were examined, being confronted with one another.” Though no subpoenas were issued and no witnesses were sworn, the suspected persons were there brought to the hearing “ practically under arrest.” It was conducted formally, and a stenographer took down at least part of the proceedings. The inquiry was in many respects like a judicial inquiry, and by its form made effective the suggestion that the power of the State might be invoked by the fire marshal to compel an answer if an answer was not voluntarily given. Under such circumstances the answer of a witness may in effect be evidence or testimony given under compulsion, though no subpoena was issued and no witness was sworn. (See U. S. v. Armour Co., 142 Fed. Rep. 808; Atkinson v. State, 128 N. E. Rep. 433.) Not so here, where the fire marshal had power to hold an investigation informally without resort to subpoena and without administering an oath, and the admission introduced in evidence at the trial was made by the defendant in an informal conversation without any suggestion that he might be compelled to speak.

The judgment should be affirmed.

Caedozo, Ch. J., Pound, Cbane, Andbews, Kellogg and O’Bbien, JJ., concur.

Judgment affirmed.


text:
    In the Matter of the Claim of Rachina Corrina, against James De Barbieri et al., Respondents. The State Industrial Board, Appellant.
    Workmen’s compensation — master and servant — teamster who falls asleep on wagon seat during trip on ferry does not necessarily abandon employment — death from injury received through falling from seat — finding that injury occurred in course of employment proper.
    The fact that a teamster after driving his team, hitched to a coal wagon, on board a ferry boat, lay down upon the wagon seat and fell asleep, so that when the team started, upon arrival of the boat at its pier, he was jolted from the seat and received injuries resulting in his death, does not contradict a finding by the State Industrial Board, upon a claim for compensation, that the injury occurred in the course of employment, nor sustain a contention that when the teamster went to sleep he temporarily abandoned his employment. Negligence or departure from the strict line of Ms duties does not conclusively establish that he was acting at the time entirely outside of Ms employment. ,,

      Matter of Corrina v. DeBarbieri, 221 App. Div. 631, reversed.
    (Argued January 9, 1928;
    decided February 14, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 17, 1927, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law and dismissing the claim.

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for appellant.

      Richard F. Weeks and Frederick Mellor for respondents.
    The injuries did not arise out of and in the course of the employment. (Briskin v. Heyman, 203 App. Div. 275; 236 N. Y. 522; McQuivey v. International Ry. Co., 210 App. Div. 507; Matter of Gifford v. Patterson, Inc., 222 N. Y. 4.)
   Lehman, J.

The claimant’s deceased husband, Stephen Corrina, was employed as a driver. In the course of his duties he drove a team of horses, hitched to a coal wagon, upon a ferry boat plying between New York city and Jersey City. He fell asleep while lying full length on the seat of the wagon. A deckhand attempted to arouse him when the ferry arrived at Jersey City, but just at that time the team of horses started to walk off the boat and the driver was jolted from the seat where he was lying. The wagon passed over him and he sustained injuries which resulted in his death. These facts are established by undisputed evidence and were found by the Industrial Board.

The Board further found that the injuries which resulted in the death of Stephen Corrina were accidental injuries and arose out of and in the course of his employment. Upon these findings the Industrial Board has ruled that the claim comes within the provisions of the Workmen’s Compensation Act. The Appellate Division has reached a contrary conclusion. While on the ferry the decedent chose to lie down on the seat of the wagon. The position in which he lay shows that he acted voluntarily. His hours of work were long. He fell asleep. While asleep he was, of course, not watching the horses. The reins dropped from his hands, and he did not awake even when the ferry boat reached the wharf. It is said that when he went to sleep he temporarily abandoned his employment and that injury suffered during such abandonment did not arise in the course of his employment.

The fact that Corrina was not actively at work when he was injured does not contradict the finding of the Commission that the injury occurred in the course of his employment. (Matter of Norris v. N. Y. C. R. R. Co., 246 N. Y. 307.) He could not drive during the passage of the ferry boat across the river yet his employment required him to remain on the ferry. We may assume that while on the ferry he may have been under some duty to look out for his horses and, at least, to be ready to drive them off when the boat reached the opposite shore. He may have been negligent in the performance of such duties; but negligence in the performance of his duties by an employee, even disobedience to orders, is not equivalent to abandonment of employment. Even when the driver chose to lie down, it is evident that he still expected to be able to perform his duty of driving when the occasion for driving arose though he may have neglected an incidental duty to remain watchful in the interval.

Here we have no act directly contrary to the purpose of the driver’s employment. (Matter of Gifford v. Patterson, Inc., 222 N. Y. 4.) The employer testified that drivers who worked long hours often took a nap on the boat. He had no object ons to such a practice. Indeed he indulged in it himself when he drove a wagon. The trier of the facts might well find upon the evidence here presented that while the driver remained on the boat, even though he failed to watch the horses, he was still carrying out the main purpose of his employment. Perhaps when the driver chose to lie down, he did not even expect to fall asleep. Departure from the strict line of his duties does not conclusively establish that he was acting at the time entirely outside of his employment.

Order of the Appellate Division should be reversed and the award of the State Industrial Board confirmed, with costs in the Appellate Division and in this court.

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

Ordered accordingly.