author: Crane, J.

text:
    Henry Whittemore et al., Respondents, v. The Equitable Trust Company of New York, Appellant.
    (Argued January 16, 1929;
    decided February 13, 1929.)

      Harrison Tweed for appellant.
    The presumption relied upon to create a reversion in real property instead of a remainder should not be applied to personal property. (Pillet v. London, 19 Atl. Rep. 25; King v. New York Trust Co., 122 Atl. Rep. 227; Mercer v. Safe Deposit & Trust Co., 45 Atl. Rep. 865; Gray v. Union Trust Co., 154 Pac. Rep. 306; New Jersey Title Guaranty & Trust Co. v. Parker, 93 Atl. Rep. 196; Sands v. Old Colony Trust Co., 81 N. E. Rep. 300; Nightingale v. Nightingale, 13 R. I. 113; Hobbie s. Ogden, 178 Ill. 357.)

      William J. Rapp for respondents.
    The ruling law on the point in issue is well settled and authoritative; and it unequivocally supports the Appellate Division’s unanimous decision that this trust has been duly revoked. (Whittemore s. Equitable Trust Co., 162 App. Div. 607; Cruger v. Union Trust Co., 173 App. Div. 797; Doctor v. Hughes, 225 N. Y. 305.) The plaintiffs are the only persons beneficially interested in this trust and the trust deed was, therefore, revoked by the service of the notification in accordance with section 23 of the Personal Property Law. (Robinson v. N. Y. Life Insurance & Trust Co., 75 Misc. Rep. 361.) There is no intention on the part of the settlors evinced anywhere in the trust deed to divest themselves of any part of their estate, or transfer it to their heirs. (Doctor v. Hughes, 225 N. Y. 305.)
   Crane, J.

The plaintiffs have had judgment on a submitted controversy revoking a deed of trust. The defendant trustee has appealed, insisting that there are vested interests which have not consented to the evocation. Section 23 of the Personal Property Law (Cons. Laws, ch. 41) states when a trust in personal property may be revoked It reads:

Upon the written consent of all the persons beneficially interested in a trust in personal property or any part thereof heretofore or hereafter created, the creator, of such trust may revoke the same as to the whole or such part thereof, and thereupon the estate of the trustee shall cease in the whole or such part thereof.”

All the adult parties to the deed of trust have consented to the revocation; the children of the settlors, however, being minors, have not and could not consent. The trustee claims that these children are beneficially interested in the trust and that it, therefore, cannot be revoked as has been attempted in this case.

The trust deed, dated December 27, 1921, by Elizabeth L. Wilson, Carolyn W. Quarles and Henry Whittemore, Jr., transferred certain bonds to the Equitable Trust Company to hold and to collect and pay the income to Carolyn G. Whittemore during her natural life, and at her death to her husband, Henry Whittemore, during his life. Upon the death of these two life beneficiaries, the trust estate is to be returned to the settlors in equal shares. If this was the end of the trust agreement, there would be no difficulty. The creators of the trust would simply have transferred a life interest, reserving all other interest in themselves, which could be disposed of by them at any time. Under such conditions, Henry Whittemore, one of the fife beneficiaries, having died, the revocation in this case would be perfectly good, as it was executed by the three settlors of the trust and the remaining fife beneficiary, Carolyn G. Whittemore.

The interest, if any, of the infant children, however, arises because of other provisions in the trust agreement. Henry Whittemore, Jr., one of the three settlors, is a bachelor. Elizabeth L. Wilson has a husband and three minor children; Carolyn W. Quarles has a husband and two minor children. The trust instrmnent refers to the children. On the death of the remaining life beneficiary the property, as above stated, is to be returned to the settlors in equal shares. But if one of the settlors has died before the life beneficiary, then that settlor’s interest is disposed of as follows:

“ Provided, however, that if any of them be then dead, the part of the net principal of the Trust Estate which would have been paid over and delivered to him or her if he or she had survived shall be paid over and delivered to such person or persons, and in such shares, interests and proportions, as such deceased Settlor, by his or her last will and testament, shall have appointed, or, in default of such appointment, to such person or persons, and in such shares, interests and proportions, as the same would have been distributable if such deceased Settlor had been the owner thereof at the time of his or her death and had died intestate.”

To be perspicuous I shall refer to the creators of the trust as the settlor, one person. ’

Taking this agreement in its simplest form, we have a trust created in personal property for the life of the beneficiary. At the death of the fife beneficiary, the trustee is directed to do one of three things: pay the principal of the estate to the settlor, if he be alive; or, if he be dead, to pay it as directed in the settlor’s last will and testament; or, if the settlor leave no will, to pay it to the persons who would then take under the Statute of Distributions. No provision is made to pay the principal of the trust estate to the grantee or assignee of the settlor.

Why should not this trust agreement be interpreted as it reads? What reason is there for giving it a legal construction just the opposite to its natural meaning? The settlor, in case of death without a will, gives the principal of the trust estate to his next of kin. In this case, if one of the married settlors should presently die, the trust deed directs the trustee upon the death of the fife beneficiary, to pay one-third of the trust estate to the husband of the settlor and her children. Reading the instrument as a whole, it is apparent that the settlor intended to make a complete disposition of all the estate at the time of the making of the instrument, and did so in the way-indicated. The children or next of kin were given a vested remainder, which might be divested by the last will and testament of the settlor; it could not be divested by the deed or assignment of the settlor. In other words, if the settlor, believing he had not conveyed away all of his interests in the property, had attempted to assign or transfer in his lifetime that which he thought he still possessed, and which in law we call a reversion, the deed or transfer would be ineffectual as against his children. Their interest as next of kin could only be divested or cut off by a last will and testament. That such an uncertain or variable interest of the next of kin is alienable, see Campbell v. Stokes (142 N. Y. 23); Moore v. Littel (41 N. Y. 66).

If the provision in the deed of trust by the use of the same words had given the principal to the next of kin of the life beneficiary instead of to the next of kin of the settlor, such persons would have taken a remainder by purchase. (Real Property Law [Cons. Laws, ch. 50], section 54; Personal Property Law, section 11.) Even without these statutes such has been held to be the case. (Sands v. Old Colony Trust Co., 195 Mass. 575.) The same rule, in my judgment, should apply in the one case as in the other. In such circumstances, where it fairly appears that intention would be promoted by that construction, words which create a remainder in the next of kin of the life beneficiary should also create a remainder in the next of kin of the settlor of the trust when the provision is for them. This is all a matter of intention. The creator of a trust can do as he pleases with his property and the courts look to his words to guide them in decisions. The directions come from the owner of the property and not from the law, unless there be some specific statute to be enforced. To determine, therefore, whether the settlor of the trust in this case simply created a life interest and nothing more, reserving to himself the balance of the interest in the property, we looked to his intention, as expressed in the instrument. If the trust deed had said that upon the death of the life beneficiary the net principal of the trust estate was to be paid over and delivered to the settlor or his next of kin in equal shares, the addition in this place of the words next of kin,” would not have been sufficient in all probability to create a remainder. Rather it would indicate that the settlor intended all above a life interest to remain with him as a reversion to be disposed of in any way he pleased. The words would indicate a limitation, not a gift. (Whittemore v. Equitable Trust Co., 162 App. Div. 607; Doctor v. Hughes, 225 N. Y. 305.) But that is not this case. Here we have something more. The settlor, as above stated, makes rather full and forma] disposition of the principal of the trust estate in case he dies before the life beneficiary. The words used, as already explained, indicate an intention to give a remainder-to the spouse and children, as the case may be, subject to change by the settlor’s will. The creator of the trust reserves power of disposition only by will; he does something more than merely set up a trust for a life beneficiary; he disposes of the property at the termination of the life interests in case of his previous death. This case is similar to Crackanthorpe v. Sickles (156 App. Div. 753) and Court v. Bankers’ Trust Co. (160 N. Y. Supp. 477). (See, also, Gray v. Union Trust Co. of San Francisco, 171 Cal. 637; Mercer v. Safe Deposit & Trust Co., 91 Md. 102.)

The judgment below should, therefore, be reversed, and judgment directed for the defendant, with costs in this court.

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

Judgment reversed, etc.


source: Caselaw Access Project

author: Cardozo, Ch. J.

license: Public Domain

text:
    Schuylkill Fuel Corporation, Respondent, v. B. & C. Nieberg Realty Corporation, Inc., et al., Appellants, Impleaded with Another. (Actions 1, 2 and 4.)
    (Argued January 16, 1929;
    decided February 13, 1929.)

      I. Maurice Wormser and Harry L. Toplitt for appellants.
    The defense in action No. 4 of ultra vires presents a triable issue. (Morris v. Wierner Co., 65 Misc. Rep. 18; Harms Co. v. Michel Brewing Co., 176 App. Div. 235; National Park Bank v. German-American Co., 116 N. Y. 281.) The counterclaim in action No. 4 for reformation raises issues which should not have been determined summarily at Special Term upon conflicting affidavits. (Baird v. Erie R. R. Co., 210 N. Y. 225.)

      Herman Kahn for respondent.
    The City Court action No. 3 between these parties was based upon the same contract which is the basis of these three actions. The determination therein against the defendants, to the effect that the contract created a joint liability among the defendants, was, therefore, res adjudicata in these actions upon that issue. (Skidmore v. Fahys Watch-Case Co., 28 App. Div. 94; New York City Car Advertising Co. v. Greenberger, 150 N. Y. Supp. 642.) The new issues thereafter raised by the appellants’ amended answers, in action No. 4, were just as effectively barred. (Tyler v. Standard Wine Co., 52 Misc. Rep. 374; Woods v. Garcewick, 67 App. Div. 53.)
   Cardozo, Ch. J.

Plaintiff made a contract with five corporations, defendants in these actions, to supply whatever coal was required for their business in accordance with their written orders, the contract to continue for a stated term.

Four of the defendants, the appellants in this court, insist that liability under the contract is several, not joint, and that none of them may be held for coal delivered to the others. The fifth defendant, being bankrupt, has suffered a default.

If the question were still open, much might be said in support of the defendants’ position that the contract, fairly read in the setting of the circumstances, is at least so ambiguous that an inference of a several promise with a several liability might be drawn upon a trial as an inference of fact (Restatement of the Law of Contracts, American Law Institute, §§"112, 128). The difficulty is that the meaning and effect of the contract have already been adjudicated. In an action between the same parties in the City Court of the City of New York, judgment was recovered against all the defendants jointly for coal delivered at other times. The same contract was pleaded, and the nature of the promise, i. e., its quality as joint or several, was the subject of the controversy, the gist of the debate. The court held it to be joint. The defendants may not now be heard to claim that it is several (Lorillard v. Clyde, 122 N. Y. 41; Reich v. Cochran, 151 N. Y. 122; U. S. v. Moser, 266 U. S. 236). “ The effect of the judgment is not at all dependent upon the correctness of the verdict or finding upon which it was rendered (Wilson’s Executor v. Deen, 121 U. S. 525; American Exp. Co. v. Mullins, 212 U. S. 311). Error, if there was any, must be corrected by direct review (Baltimore S. S. Co. v. Phillips, 274 U. S. 316, 325).

What has been written applies to two of the actions before us, those designated in their titles as actions numbers 1 and 2, and also to action number 4 in so far as it contains the same denials and defenses. There is, however, in action "number 4 a counterclaim for the reformation of the contract on allegations of mistake and fraud. A judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first (Cromwell v. County of Sac, 94 U. S. 351; Reich v. Cochran, supra). It is not conclusive, however, to the same extent when the two causes of action are different, not in form only (Baltimore S. S. Co. v. Phillips, supra, p. 321), but in the rights and interests affected. The estoppel is limited in such circumstances to the point actually determined (Cromwell v. County of Sac, supra). The distinction, though elaborated with special emphasis in many judgments of the Supreme Court (Cromwell v. County of Sac, supra; Davis v. Brown, 94 U. S. 423; Nesbit v. Riverside Independent District, 144 U. S. 610, 614; Troxell v. D., L. & W. R. R. Co. 227 U. S. 434; United Shoe Mach. Corp. v. U. S., 258 U. S. 451, 458; Myers v. International Trust Co., 263 U. S. 64, 70; Baltimore S. S. Co. v. Phillips, supra), is not the doctrine of that court alone. Both in this State and elsewhere it is recognized as settled law (Griffen v. Keese, 187 N. Y. 454, 464; Felix v. Devlin, 50 App. Div. 331, 334; Matter of Hoyt, 160 N. Y. 607, 618; Jacobson v. Miller, 41 Mich. 90, 96; Howlett v. Tarte, 10 C. B. [N. S.] 813; Independent Harv. Co. v. Tinsman, 253 Fed. Rep. 935; Tudor v. Kennett, 87 Vt. 99, 103; Arnold v. Norfolk & N. B. Hosiery Co., 63 Hun, 176).

Illustrations are many, but a few, specially apposite, may be selected from the mass. Cromwell v. County of Sac (supra) and Nesbit v. Riverside Independent District (supra) were cases where judgments were recovered on coupons attached to municipal bonds. The former judgments were disregarded in actions on other coupons wherein new defenses were set up. Jacobson v. Miller (supra) was an action on a lease to recover an installment of rent. The Supreme Court of Michigan held, in an opinion by Cooley, J., that a judgment in an action for an earlier installment did not exclude a new defense, though it was available before. Howlett v. Tarte (supra; approved in Cromwell v. County of Sac, supra, p. 357) was an action for rent under a building loan agreement. The ruling was that a former judgment for rent under the same agreement did not exclude a new defense that the agreement had been abrogated, though if abrogated at all, it was out of existence at the date of the earlier installment for which judgment had been rendered (cf. Humphries v. Humphries, 1910, 2 K. B. 531, and the note thereon by Spencer Bower, Res Judicata, p. 112). Independent Harvester Co. v. Tinsman (supra) was an action to set aside a contract on the ground of fraud. A note given under the same contract had previously been reduced to judgment. There was a holding that the judgment did not constitute a bar.

Cases in this court may seem upon a hasty reading to uphold a stricter rule. Analysis will show that the conflict is unreal. The decisive test is this, whether the substance of the rights or interests established in the first action will be destroyed or impaired by the prosecution of the second. An estoppel is not avoided in such circumstances by mere differences of form between the one action and the other (Baltimore S. S. Co. v. Phillips, supra; Southern Pacific Ry. Co. v. U. S., 168 U. S. 1, 49). Thus, in Reich v. Cochran (supra) an order in summary proceedings awarding possession to a landlord for nonpayment of rent was held to bar a suit in equity to declare the lease a mortgage and avoid it on the ground of usury. The relief decreed by the order, the award of possession to one adjudged to be a landlord, would have been nullified altogether, if the same person might thereafter have been declared to be no landlord, but a mortgagee, wrongfully in possession under an agreement void in its inception. So in Blair v. Bartlett (75 N. Y. 150) the same professional services were the subject of the two actions, the first by the physician to recover their value, in which action value was adjudged, and the second by the patient to recover damages on the ground that they were without value and harmful (Cf. Collins v. Bennett, 46 N. Y. 490, and Dunham v. Bower, 77 N. Y. 76). Again, in Steinbach v. Relief Fire Insurance Co. (77 N. Y. 498) the holder of a fire policy sued upon it as it had been written, and then, when found by the court to have broken its conditions, brought suit to reform it and recover the same loss (Cf. Tio v. Brown, 131 Wis. 573). A different question would have been presented if the loss had been a later one.

We pass from this statement of the precedents to the case before the court. As often as an attempt is made to enforce the written contract according to its terms, the former judgment will be conclusive as to the meaning of those terms and their effect. It will not be conclusive upon the question whether the terms' should be reformed, for no such issue has been litigated. Till now there has been neither counterclaim for reformation nor equitable defense (Susquehanna Coal Co. v. Andersen & Co., 239 N. Y. 285). The buyers took the ground, when sued in another court, that the writing, fairly read, imposed a several liability. Instructed by the former judgment that their reading would be rejected, they take the ground today that the writing, if impressed with such a meaning, is the product of mistake. Nothing heretofore determined nor any right secured thereby is retracted or diminished. The writing with its execution stands admitted in meaning and effect as it has already been adjudicated, and equitable considerations are put forward to defeat the effort to enforce it (Susquehanna Coal Co. v. Andersen & Co., supra). The cause of action being different, i. e., for coal sold at other times and in response to other orders, the counterclaim must be tried before judgment may be rendered.

Other assignments of error argued in the briefs have been considered by the court, but are thought to be untenable.

The contract was not a guaranty, but a joint purchase, and on the plaintiff’s side, at least, has now been fully executed. The plea of ultra vires is unavailing to defeat it (American Surety Co. v. Philippine Nat. Bank, 245 N. Y. 116).

In actions numbers 1 and 2, the judgments should be affirmed with costs.

In action number 4, the judgment of the Appellate Division and that of the trial court should be reversed, and the motion denied, with costs in all courts.

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

Judgment accordingly.


author: Per Curiam.

text:
    Walter W. Irwin, Appellant, v. Lido Realty Corporation et al., Respondents.
    (Argued January 15, 1929;
    decided February 13, 1929.)

      A. S. Gilbert for appellant.
    The defendants were obligated to file the map, attached to the complaint, and to deliver to the plaintiff a deed of lot 199, describing the property with reference to said map and to keep open as public grounds or spaces the streets known as Breakers Way and Blackheath road. (Johnson v. S. I. G. & C. M. Assn., 122 N. Y. 330; Silberman v. Uhrlaub, 116 App. Div. 869; Williamson v. Salmon, 105 Misc. Rep. 485; 196 App. Div. 922; 233 N. Y. 657; White v. Moore, 139 App. Div. 269; Trustees of Watertown v. Cowen, 4 Paige, 510; Tallmadge v. East River Bank, 26 N. Y. 105; Trustees of Columbia College v. Lynch, 70 N. Y. 440; Lord v. Atkins, 138 N. Y. 184; Thousand Island Park Association v. Tucker, 173 N. Y. 203; Reis v. City of New York, 188 N. Y. 58; Matter of Mayor, etc., of N. Y., 188 N. Y. 581.) An irrevokable right was created in favor of the lot owners in the plan as shown on map No. 1, dated May 12, 1916, and filed July 14, 1916, and to the use of all the streets thereon. (Johnson v. S. I. G. & C. M. Assn., 122 N. Y. 330.)

      John J. Curtin and Tracy S. Voorhees for respondents.
    Plaintiff was accorded every right as to maintenance of streets which he would have had had Lido Realty Corporation and Long Beach on the Ocean, Inc., been one and the same, or had the plaintiff had a contract from both corporations to purchase the lot by reference to the map, and had such map been filed. (Reis v. City of New York, 188 N. Y. 58; Matter of Mayor, 188 N. Y. 581; Matter of City of New York [East 177th Street], 239 N. Y. 119.)
   Per Curiam.

The plaintiff purchased of the Lido Realty Corporation lot No. 199 on a map showing the street in front of the premises, Fair Way avenue, running to the ocean. He was offered a deed according to a map which did not run Fair Way avenue to the ocean. This resulted in a law suit in which the plaintiff claimed that other streets shown upon the maps should be kept open for his benefit. Two of these other streets, Breakers Way and Blackheath road, have been closed at the ocean by the erection of a hotel or club house. Fair Way avenue, however, which runs past the plaintiff’s property, affords him access to the ocean and with other streets surrounding his property gives him ready access to all the main thoroughfares and highways.

The plaintiff very reasonably assumes that the hotel should not be taken down and the portions of the two streets mentioned, which have been closed, kept open for his benefit. He has asked the courts of equity, however, for relief of some nature. The Special Term dismissed his complaint upon the merits. The Appellate Division provided in place of the dismissal that the plaintiff recover of the defendants the sum of $1,000, and thus modified the judgment, without costs.

On the trial of the case, counsel for the defendant offered the plaintiff $1,267.67, “ which is intended to represent the money paid with interest to date, * * * or a new deed of lot No. 199 with reference to a new filed map, a combined filed map of the Lido Realty Co. and the Long Beach on the Ocean, Inc., which map shows among other things Fair Way Avenue open down to the ocean giving full access to the ocean.”

Although the plaintiff, upon the facts and the law, is not entitled to all the relief which he asked in his complaint, he should, in our opinion, have either his money back with interest, or else a deed according to the map showing Fair Way avenue open to the ocean.

We, therefore, modify the judgment of the Appellate Division to this extent. The plaintiff at his election is to have judgment for the amount paid together with interest to date, or else is to receive the deed (Defendants’ Exhibit B) offered by the defendants on the trial, that is, the deed of lot 199 according to the filed map (Defendants’ Exhibit A) which shows Fair Way avenue open to the ocean. He is entitled to a deed which gives him access over Fair Way avenue to the ocean. The plaintiff is to make his election by serving upon the defendants’ attorney within thirty days a written notice thereof. The judgment should be modified in accordance with this opinion and as modified affirmed, without costs in any court.

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

Judgment accordingly.


author: Kellogg, J.

text:
    Aedita S. Fisher, Respondent, v. Harry C. Fisher, Appellant.

      (Argued January 9, 1929;
    decided February 13, 1929.)

      Charles E. Kelley for appellant.
    No valid marriage of the plaintiff and the defendant was proved. (Dye v. Dye, 140 App. Div. 309; Savage v. O’Neil, 44 N. Y. 298; Latham v. De Loiselle, 3 App. Div. 525; 158 N. Y. 687;
      Liachovitzky v. New York Life Ins. Co., 126 Misc. Rep. 109; Du Moulin v. Druit, 13 Irish C. L. 213; Norman v. Norman, 121 Cal. 620; Holmes v. Holmes, 1 Abb. [N. S.] 525.)

      Charles H. Tuttle, Paul N. Turner and Emily Holt for respondent.
    The appellant and respondent were legally married. (International Navigation Co. v. Lindstrom, 123 Fed. Rep. 475; Meister v. Moore, 96 U. S. 76; Thorp v. Thorp, 90 N. Y. 602; Van Voorhis v. Brintnall, 86 N. Y. 18; Cunningham v. Cunningham, 206 N. Y. 341.) The ceremony on the steamship Leviathan was celebrated outside the territory of New York State, and the captain was authorized by law and custom to perform it. Hence it is valid and binding as a ceremonial marriage. (International Navigation Co. v. Lindstrom, 123 Fed. Rep. 475; The Lake Monroe, 250 U. S. 246; Sloan Shipyards v. U. S. Shipping Board, 258 U. S. 549; U. S. Shipping Board v. Bauque Russo, 286 Fed. Rep. 918; The Havana, 64 Fed. Rep. 496; The Algonquin, 88 Fed. Rep. 318.) In any event the marriage between the parties is valid as a marriage at common law. (Canjolle v. Ferrie, 23 N. Y. 90; Leeds v. Joyce, 202 App. Div. 696; 235 N. Y. 620; Smith v. Smith, 194 App. Div. 543; Matter of Ziegler v. Cassidy’s Sons, 220 N. Y. 98; Travers v. Reinhardt, 205 U. S. 423; Stewart v. Union Mutual Life Ins. Co., 155 N. Y. 257; Crawford v. Chapman, 17 Ohio, 449.)
   Kellogg, J.

In this action for a separation the complaint alleges that the parties hereto were duly married on the 24th day of October, 1925.” The answer denies the allegation. Concededly, on the day named the parties to the action were on board the steamship Leviathan, then on the high seas, bound from the port of New York to Southampton, England. When the ship was forty miles out from the port of New York, its captain performed a marriage ceremony, wherein these parties were the principals. In the course of the ceremony the captain asked the plaintiff if she took the defendant for her husband; asked the defendant if he took the plaintiff for his wife; received an affirmative answer from each; and thereupon pronounced them man and wife. Cohabitation of the principals followed the ceremony. The ultimate question for decision here is this: Were the parties upon the occasion in question lawfully united in marriage?

It is elementary that marriage is a civil contract; that the law deals with it as it does with all other contracts; that it pronounces a marriage to be valid wherever a man and woman, able and willing to contract, do, per verba de presenti, promise to become husband and wife. (Black Com. Sharswood, vol. I, p. 432-441; Kent’s Com. vol. 2, p. 57; Clayton v. Wardell, 4 N. Y. 230; Matter of Zeigler v. Cassidy’s Sons, 220 N. Y. 98; Meister v. Moore, 96 U. S. 76.) A formal ceremony of marriage, whether in due form or not, must be assumed to be by consent, and, therefore, prima facie a contract of marriage per verba de presenti. (Fleming v. People, 27 N. Y. 329.) According to the common law of all Christendom consensual marriages — i. e., marriages resting simply on consent per verba de presenti — between competent parties, are valid marriages. (Wharton’s Conflict of Laws, secs. 171-173.) “ This view prevailed, and may be said to have been the common law of Christendom, as it had been of the old Roman Empire, down till the Council of Trent.” (Maitland Select Essays in Anglo-American Legal History, vol. 3, p. 810.) The canon law declared a valid marriage existed where competent parties should covenant, “ ego te accipio in meam; ” and “ ego te accipio in meum.” (Wharton, sec. 171.) Consensual marriages were valid in England, Scotland, The Netherlands, Spain, Portugal, Germany and the United States. (Wharton, secs. 172, 183.) Marriage is a thing of right, recognized in all countries, in all ages, among all people, all religions, all philosophies. It pertains, therefore, in the highest sense, to the law of nations, in distinction from the law of any particular state or country.” (Bishop on Marriage & Divorce, vol. 1, sec. 351.) Marriage between parties capable of contracting is “of common right, and valid by a common law prevailing throughout Christendom.” (Hutchins v. Kimmell, 31 Mich. p. 126.) This common right, or common law, does not extend to marriages which are polygamous or incestuous. (Bishop, sec. 375.) The sanction which the law of civilized nations bestows upon marriages by mere consent is of course not inclusive of marriages which civilization commonly condemns. (Hutchins v. Kimmell, supra, at p. 134.) Otherwise, regulations restrictive of the common right of marriage by mere consent, or imposing conditions upon it, are exceptional; they depend upon local statutes, and, as in other cases of exceptions, if one claims that a case falls within them, the burden is upon him to show the fact. “ Prima facie a good marriage is shown when the contract is proved with cohabitation following it, and we cannot assume that there are regulations restrictive of the common right until they are shown.” (Per Cooley, J., in Hutchins v. Kimmell, supra.) Every presumption lies in favor of the validity of a marriage. (Bishop, vol. 1, sec. 13; Piers v. Piers, 2 H. L. Cas. 331; Hynes v. McDermott, 91 N. Y. 451.) Marriage between the parties to this action was not subject to any bar imposed by the common voice of Christendom. Consequently, although no law of any State, territory or district of the United States, sanctioning the marriage of the parties to this action, may have followed the ship Leviathan upon the high seas, in the absence of any such law, which condemned the marriage, we think that they were lawfully married. It becomes necessary now to inquire whether a controlling law of any State did condemn the marriage.

The defendant, prior to the performance of the marriage ceremony in question, was already a married man. His former wife had procured, in this jurisdiction, a decree of divorce against him, dissolving the marriage on the ground of adultery. According to the terms of the decree, and the laws of this State, the defendant was forbidden to remarry during the life of his then wife. The wife, who procured the decree, is still living. It is well settled that the provisions of our statute forbidding the remarriage of a party who has been divorced for adultery have no extraterritorial effect; that a subsequent marriage of the guilty party, during the life of the innocent party, in a sister State, if valid in that State, will be recognized here as a lawful marriage. (Moore v. Hegeman, 92 N. Y. 521.) The question then arises, did the laws of the State of New York follow the steamship Leviathan in its journey upon the high seas?

“ The Steamship Leviathan of New York, N. Y.” Was registered in the port of New York. The certificate of registry specifies that the United States of America represented by the United States Shipping Board is the only owner of the vessel called the Leviathan of New York, N. Y.” On the high seas it flew the flag of the United States. A ship in the open sea is regarded by the law of nations as a part of the territory whose flag such ship carries. (Wharton, Conflict of Laws, sec. 356.) Wharton says: “ As between the several states in the American Union, a ship at sea is presumed to belong to the state in which it is registered.” For this statement the sole authority is Crapo v. Kelly (16 Wall. [U. S.] 610). We think that the learned author misconceived the decision in that case. The ship there considered was a vessel owned by residents of the State of Massachusetts. It was, likewise, registered at a port within the State of Massachusetts. As we read the case, the court decided that the vessel was a Massachusetts ship, not because it had a Massachusetts registry, but because its owners were citizens of Massachusetts. The court said: Again, the owners of this vessel and the assignees in insolvency were citizens of Massachusetts, and subject to her laws. It is not doubted that a sale of property between them of property on board of this vessel, or of the vessel itself, would be regulated by the laws of Massachusetts.” In The Havana (64 Fed. Rep. 496) it was held that a vessel owned by a New Jersey corporation, although registered in New York, was a New Jersey vessel. In International Navigation Co. v. Lindstrom (123 Fed. Rep. 475) it was said: “It is plain that the New York statute did not reach the case, because, inasmuch as the steamship belonged to a citizen of New Jersey, it was a vessel of that state, notwithstanding its registry in New York.” To the same effect are United States Shipping Board v. Greenwald (16 Fed. Rep. [2d] 948) and The Hamilton (207 U. S. 398). In Southern Pacific Co. v. Commonwealth of Kentucky (222 U. S. 63) it was held that a vessel belonging to a Kentucky corporation was taxable in Kentucky although it was enrolled in the port of New York, had the name of New York painted on its stern, and never had been at any port in Kentucky. We think it clear, under the authorities, that the laws which follow a ship upon the high seas are the laws of the State where the owner resides, not the laws of the State within which the ship is registered. Therefore, if we assume that the United States was the owner of the steamship Leviathan, the laws of the State of New York did not follow the ship as a part of its territory, since the United States certainly is not domiciled in that State. The presumption of the validity of the marriage, therefore, was not destroyed by proof that one of the parties thereto, within the State of New York, was incompetent to marry.

We have hitherto assumed that the marriage in question had not the positive sanction of any Federal statute, or of the common law of any State, territory or district of the United States, carried upon the high seas by the steamship Leviathan. We think the fact is otherwise.

Congress had provided that “ every vessel making voyages from a port in the United States to any foreign port ” should have an official log book; that every master of such a vessel should make entry therein of Every marriage taking place on board, with the names and ages of the parties.” (Mason’s U. S. Code, vol. 3, title 46, sec. 201,) “ Every marriage taking place on board ” is certainly inclusive of marriages other than those sanctioned by the municipal laws of the State of the ship’s ownership. We take it that Congress had thus recognized that on board a ship at sea, notwithstanding the absence of municipal laws so carried, there is nevertheless a law of marriage. That law can be none other than the law, common to all nations, which pronounces valid all consensual marriages between a man and woman who are, in the view of all civilized people, competent to marry. In this view, the marriage between the parties to this action, by force of a Federal statute, which Congress was fully empowered to.enact (The Hamilton, supra), was a valid marriage.

If the Federal statute cannot thus be interpreted, then we think that the common law of the District of Columbia prevailed to give sanction to the marriage. We have thus far assumed that the title to the steamship Leviathan was in the United States. The certificate of registry so states, and the referee has so found. Moreover, the respondent does not appear to have disputed the point. However, we think that such was not the fact. An act of Congress of June 5, 1920, provided in part as follows: “ All vessels * * * acquired by the President * * * in pursuance of the joint resolution entitled ‘ Joint Resolution authorizing the President to take over for the United States the possession and title of any vessel within its jurisdiction, which at the time of coming therein was owned in whole or in part by any corporation, citizen, or subject of any nation with which the United States may be at war, or was under register of any such nation, and for other purposes,’ approved May 12, 1917, * * * are hereby transferred to the board * * (Mason’s U. S. Code, vol. 3, title 46, chap. 24, sec. 863.) The “ board ” is the United States Shipping Board. The steamship Leviathan was a vessel of the class referred to by the joint resolution. In Sloan Ship Yards Corp. v. U. S. Fleet Corp. (258 U. S. 549, 566) Mr. Justice Holmes, in referring to the act from which we have quoted, said: “ Perhaps it is enough to add a reference to the Act of June 5,1920, c. 250, 41 Stat. 988, 993, continuing the existence of the Fleet Corporation and its authority to operate vessels until all vessels are sold as directed by the act, §11, but transferring the title to the Shipping Board.” It seems to be clear, therefore, that the title to the steamship Leviathan was in the United States Shipping Board. That Board had its domicile in the District of Columbia. Therefore, if the law of Congress referred to did not occupy the field, the law of the District of Columbia in relation to marriage followed the steamship on its journey upon the high seas, and was controlling. (U. S. Shipping Board v. Greenwald, 16 Fed. Rep. [2d] 948.) In that case the court said: Since this steamship belonged to a citizen of the District of Columbia (The United States Shipping Board) it was a vessel of that District.” In the absence of proof of the statutes of the District, we must assume that the common law, which would give sanction to the marriage in question, prevails in the District of Columbia; that this law obtained on board the steamship Leviathan when upon the high seas; that the marriage between the parties was, therefore, legal.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Crane, J. Pound, J.

text:
    Atlantic Basin Iron Works, Respondent, v. The American Insurance Company et al., Appellants.

      (Argued January 14, 1929;
    decided February 13, 1929.)

      Paul Speer and James M. Gorman for appellants.
    The insurer and insured intended that the insurance risk should be covered by the typewritten page only. (Arnould on Marine Ins. [11th ed.] 100; Dudgeon v. Pembroke, L. R. [2 App. Cas.] 284; Cunard S. S. Co. v. Marten, 2 K. B. [1902] 624; Western Assurance Co. v. Poole, 1 K. B. [1903] 376; Hagan v. Scottish Union & Nat. Ins. Co., 186 U. S. 423; Borland v. Standard Marine Ins. Co., 125 Misc. Rep. 395; Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., 263 U. S. 487; Marine Ins. Co. v. McLanahan, 283 Fed. Rep. 240; 290 Fed. Rep. 685; Pennsylvania Co. for Insurance v. Central Trust & Savings Co., 255 Penn. St. 322; Bushey & Sons v. American Ins. Co., 237 N. Y. 24; Kratzenstein v. Western Assurance Co., 116 N. Y. 54.) The “ interest of the assured in work ” on vessels in the extended insurance of the typewritten page and the words “ if the assured by reason of his interest in the insured ship ” pay damages, etc., in the printed protection and indemnity clause, did not make the insurer liable for the damages suffered by the Dixie. (The Bjornefjord, 271 Fed. Rep. 682; Flint v. Robins Dry Dock & Repair Co., 13 Fed. Rep. [2d] 3; The Montserrat, 7 Fed. Rep. [2d] 477; 15 Fed. Rep. [2d] 1015; The Alert, [C. C. A. 2] 19 Fed. Rep. [2d] 286; The Satilla, 221 Fed. Rep. 949; 235 Fed. Rep. 58; International M. M.

      Co. v. Gaffney, 143 Fed. Rep. 305; The Cromwell, 247 Fed. Rep. 207; 259 Fed. Rep. 166; Sturm v. Atlantic Mutual Ins. Co., 63 N. Y. 77.)

      Le Roy Mandle, H. A. Heydl and C. E. Heydt for respondent.
    The intent of the parties as expressed by the policy including the typewritten page attached thereto clearly contemplated the coverage of the plaintiff’s legal liability for loss to other ships occasioned by work done on the ships upon which assured was engaged. (Bushey & Sons v. American Ins. Co., 237 N. Y. 24.) An insurance policy should be so constructed as to give effect to every word and expression contained therein unless there be an irreconcilable conflict in the terms used. (1 Arnould on Marine Insurance [11th ed.], § 56; Kratzenstein v. Western Assurance Company, 116 N. Y. 54; Benedict v. Ocean Insurance Co., 31 N. Y. 389; Chadney v. Guion, 97 N. Y. 333; Dudgeon v. Pembroke, L. R. [2 App. Cas.] 284; Western Insurance Co. v. Poole, [1903] [1 K. B.] 376; Hagan v. Scottish Union & National Ins. Co., 186 U. S. 423; Marine Insurance Co. v. McLanahan, 290 Fed. Rep. 685; Foot v. Ætna Ins. Co., 61 N. Y. 571; Harper v. Albany Mutual Ins. Co., 17 N. Y. 194; Nelson v. Sun Mutual Ins. Co., 71 N. Y. 453; Tillitt v. Mann, 104 Fed. Rep. 421; Hawkeye Com. Men’s Assn. v. Christy, 294 Fed. Rep. 208; Maryland Casualty Co. v. Bank of England, 2 Fed. Rep. [2d] 793; Federal Life Ins. Co. v. Kemp, 257 Fed. Rep. 265; Canton Ins. Office v. Independent Trans. Co., 217 Fed. Rep. 213.) The insured had an insurable interest in the insured ship. (Cane v. Niagara Fire Ins. Co., 60 N. Y. 619; Bushey & Sons v. American Insurance Co., 237 N. Y. 24.)
   Crane, J.

The Atlantic Basin Iron Works is a domestic corporation engaged in the business of repairing ships. On or about the 16th day of May, 1922, it was at work through its agents and servants repairing the steamship Monterey at pier No. 13, borough of Brooklyn, county of Kings, city and State of New York. While the work was in progress, the lighter Dixie, with a cargo, of jute on board, was brought alongside of the steamship Monterey; the jute took fire and the lighter, its appurtenances, equipment and cargo were damaged.

Shortland Bros. Co., a Virginia corporation, and the owner of the said fighter and cargo, filed a libel in the United States District Court for the Eastern District of New York against the Atlantic Basin Iron Works to recover its loss, which was alleged to be due to the negligence of the repairmen. After a trial, it was adjudged that the servants of the Atlantic Basin Iron Works had been negligent in allowing sparks from an acetylene torch which they were using to fall in the fighter and cargo, causing the fire. Damages were assessed, which the Atlantic Basin Iron Works was obliged to pay.

Marine insurance policies had been issued to the Atlantic Basin Iron Works covering certain risks. The iron works claim that its liability for the fire damage to the fighter was one of the risks covered by the policies; the insurance companies claim that the policies covered no such risk. For a determination of this question the controversy was submitted to the Supreme Court on stipulated facts, after pleading. The Trial Term justice found for the defendants; the Appellate Division reversed and gave judgment for the plaintiff. The difference in the result was due entirely to the construction placed upon the contract of insurance; outside of this there is no question of law involved.

What was the contract of insurance between the parties? The difficulty in answering this question arises out of the practice of annexing to the standard form of marine insurance policy a rider or statement of the extended risks covered, to and about which the printed clauses in the standard form have little or no application. The coverage clauses in the typewritten sheet annexed to the standard form printed policy are quite clear of application; the plaintiff’s claim, however, has been thus far established by reason of certain sentences in the “ Clauses for Builders’ Risks ” contained in the printed form.

The insurance contract must be found in the papers read as a whole. There is no inconsistency between the written and printed matter; if any part of the papers cover or apply to this risk the plaintiff must recover. The printed form, however, does not seem to refer to this liability.

There are three papers fastened together forming the contract. The seven insurance companies in the first paper insure the Atlantic Basin Iron Works in the amount of $150,000 upon the good legal liability from the 19th day of July, 1921, to the 19th day of July, 1922.”

The second paper is typewritten, and- states what the “ good legal liability ” applies to. It reads as follows:

“ $150,000. To cover the LEGAL LIABILITY of the assured from any cause whatsoever for loss and /or damage and/or expense, if any, to vessels and/or craft and/or their cargoes and /or their freight, (which .may be in their hands for or on which they may be engaged or preparing to engage in work or operations) arising from or in connection with the operation of their plant situated at (Brooklyn) New York City including work on or in connection with vessels anywhere in New York Harbor and/or adjacent inland waters of New Jersey, Hudson and /or East Rivers whether on dry docks and /or Marine railways operated by others or otherwise, but excluding any liability hereunder for loss or damage for which the owner or owners of such other dry docks and /or marine railways may be liable. * * *

This insurance is also extended to cover, subject to the terms of the Builders Risks Clauses as attached, the interest of the assured in work on such vessels completed or in process of completion.”

The third paper is the standard printed marine insurance policy to which the other two are attached.

Legal liability is a very broad term. The Atlantic Basin Iron Works might be legally liable on its contracts, or for the torts of its servants, or the frauds of its officers. The whole realm of law may be pressed into the term “ legal liability.” We must, therefore, expect to find in these insurance papers some limitation of legal liability,” or. some definite application of the term. We find it in the second typewritten paper which I have quoted above. The legal liability which is covered is that liability for loss or damage caused to the vessel which the Atlantic Basin Iron Works is repairing or has under its possession and control. As before stated, the iron works was in the business of repairing ships. It had the steamship Monterey at the pier undergoing repairs. Its men were at work upon the ship. For any damage done by the men to the ship or any loss occasioned to the ship by reason of the negligence or carelessness of the iron works and for which it was liable, the insurance companies undertook to indemnify it; they insured against such loss.

The second clause, above quoted, from the typewritten sheet or coverage paper, has reference to another loss. The iron works was putting its labor and material into the ship. What its contract price was does not appear, but evidently it was doing the work for hire. The ship might sink, blow up or catch fire before the iron works had received full compensation. Against such a contingency it insured by the clause which says that the insurance is extended to cover the interest of the assured in work on such vessel completed or in process of completion.

I cannot find in these three papers any other clause to which the legal liability of the insured extends, or any other risk which is covered. The standard form printed marine insurance policy, which is the third paper, to which the other two are annexed, refers to the insuring of ships; to losses to the hurt, detriment and damage “ of the said ship.” All of the clauses in this printed policy cover the loss or damage which may be occasioned to the ship. They also cover damage done by the ship or for which the owner or the assured may be liable because of his interest in the ship. I do not see how these risks insured against can be extended to cover the liability of a contractor or repair worker not owning the ship for the negligence of its servants, causing damage to another ship or vessel, a ship upon which no repair work is being done. While such a contractor or repairman would be liable for the loss occasioned upon such second ship through the negligence of his servants, the liability would rest upon the relationship of master and servant and not upon his interest in the insured ship. He might have no interest whatever in the insured ship and yet be liable for the negligence of his servants to third parties. We may assume that the Atlantic Basin Iron Works had done so much work upon the Monterey that it had an insurable interest therein and that to the extent of its bill or charges, it had an interest in the ship.” Such an interest, however, which might result in a lien or libel upon the ship is not the interest referred to in the “ Clauses for Builders’ Risks.” The liability for negligence in doing repair work resulting in damage and loss to another ship would not be a liability by reason of any such interest in the insured ship. In fact, there is no insured ship. The standard form marine policy containing the “ Clauses for Builders’ Risks ” has very little application to the insurance here in question. The only reference to it in the second or typewritten coverage sheet is that the insurance to cover the repair bill or charge is subject to the terms of the Builders Risks Clauses as attached.” It may be that the clause in the builders’ risks referring to fire while under construction and the clause including materials in buildings, workshops, yards, docks., etc., bring such within this insurance. But, as stated before, no sentence can be found in the “ Clauses for Builders’ Risks ” covering the liability for negligence as distinguished from the liability of the ship or liability by reason of an interest in the ship.

The court below was of the opinion that the liability of the insurance companies could be predicated upon the printed form reading:

“ It is further agreed that if the Assured shall by reason of his interest in the insured ship become liable to pay and shall pay any sum or sums in respect of any responsibility, claim, demand, damages, and /or expenses arising from or occasioned by any of the following matters or things during the currency of this policy, that is to say:

Loss of or damage, to any other ship * * * caused proximately or otherwise by the ship insured * * *

" Loss of or damage to any goods, * * * whether on board the said Steamship or not, which may arise from any cause whatever * * *

These assurers will pay the Assured such proportion of such sum or sums so paid, or, which may be required to indemnify the Assured for such loss as their respective subscriptions bear to the completed contract price of the ship hereby insured.”

These clauses refer in our judgment to some proprietary interest of the assured in the ship out of which a liability has arisen for loss and damage occasioned by the ship. The fact that the Atlantic Basin Iron Works was interested in the ship to the extent of the work and material put in it did not make it liable in admiralty or at common law for the damage done to the lighter. Its liabilty was due to the negligence of its servants in doing the repair work on the ship; for this negligence neither the ship nor any one having an interest in the ship would be liable. (Soderberg v. Atlantic Lighterage Corp., [C. C. A. 2] 19 Fed. Rep. [2d] 286; The Cromwell, 259 Fed. Rep. 166; The Satilla, 221 Fed. Rep. 949.)

I agree with the respondent that the printed paper marine insurance policy standard form is a part of the contract of insurance in so far as it can be made applicable to this case, but I cannot find any provision in this policy which covers the plaintiff’s liability to third parties for the negligence of its servants. Most all of the printed matter of the standard policy is inapplicable to this kind of insurance, but such verbiage does not justify the court in pushing words out of their setting and relationship to spell out a liability. It may be that the assured thought it had insurance to cover any and all liability for damage done by its employees, but the reading of these three papers does not so discover. We are confined to the words and sentences used and cannot make our decision on those which might have been used.

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

Pound, J.

(dissenting). Atlantic Basin Iron Works is a ship repairing concern. It insured itself with the defendants against “ legal liability ” in the sum of $150,000. This term is broad enough to cover the loss sued on, subject to the limitations contained in the policy. The standard policy of marine insurance is specifically made a part of the policy as a printed rider. The type-written rider, which covers builders’ risks alone, is made “ subject to the terms of the Builders’ Risks Clauses ” contained in the printed rider. Assured owned no ship nor interest in a ship. It had an interest in its work on vessels. The standard form in terms covers only ships or loss or damage due to an interest in a ship. Obviously, the insurers carelessly used a blank form of policy which was applicable only to hull insurance without troubling themselves to adapt it to the nature of the transaction. The printed words “ upon the good ” before the written words “ legal liability ” so indicate. The blank following the printed words would normally be filled in with the words, “ ship Mary Jane,” or something of the kind, descriptive of the “ good ship ” upon which the insurance was written. Yet the policy unquestionably insures “ against legal liability ” to some extent. Insurance “ Upon the good legal liability,” read literally, is meaningless.

The policy provides, among other things, under the head of Protection and Indemnity Clause,” as follows : “ It is further agreed that if the assured shall by reason of his interest in the insured ship become liable to pay and shall pay any sum or sums in respect of any responsibility, claim, demand, damages, and /or expenses arising from or occasioned by any of the following matters or things during the currency of this policy, that is to say: —

“ Loss of or damage to any other ship or boat or goods, merchandise, freight, or other things or interests, whatsoever on board such other ship or boat caused approximately or otherwise by the ship insured in so far as the same is not covered by the running down clause set out above.” The same carelessness is manifested here but the underlying purpose is protection and indemnity against a specified group of legal liabilities. The words should, if possible, be given a meaning and applied to the facts. When insurance companies undertake to insure a ship repairer against legal liability ” and make a standard form of policy of ship insurance a part of the contract, it must be that they have in mind some sort of protection for the assured arising therefrom. Otherwise why was not the coverage limited in terms to builders’ risk? Having before us the relations of the parties, the clause may be fairly read (rejecting all superfluous words) so as to give the assured herein protection and indemnity against loss or damage to any other ship caused proximately by the assured by reason of its work on a ship in its hands. The intention of the parties is fairly expressed by the language, read in the light of the surrounding circumstances. (Aldrich v. N. Y. Life Ins. Co., 235 N. Y. 214; Bushey & Sons v. American Ins. Co., 237 N. Y. 24.) The judgment should be affirmed, with costs.

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

Judgment reversed, etc.


author: Lehman, J.

text:
    Sarah Schwartz, an Infant, by Samuel Schwartz, Her Guardian ad Litem, Respondent, v. The City of New York, Appellant. Samuel Schwartz, Respondent, v. The City of New York, Appellant.
    (Submitted January 9, 1929;
    decided February 13, 1929.)

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly, Henry J. Shields and Edward A. Gcibel of counsel), for appellant.
    The notices filed by the plaintiffs do not comply with the provisions of the governing statutes in that they do not specify the place of the accident. (Reining v. City of Buffalo, 102 N. Y. 308; Mertz v. City of Brooklyn, 33 N. Y. S. R. 577; 128 N. Y. 617; Curry v. City of Buffalo, 135 N. Y. 366; Krall v. City of New York, 44 App. Div. 259; Van Den Bergh v. City of New York, 208 App. Div. 72; Fitzpatrick v. City of New York, 220 App. Div. 320; Purdy v. City of New York, 193 N. Y. 521; Weisman v. City of New York, 219 N. Y. 178; Lautman v. City of New York, 157 App. Div. 219; Rauber v. Vil. of Wellsville, 83 App. Div. 581; Watts v. City of New York, 133 App. Div. 400; Casey v. City of New York, 217 N. Y. 192.)

      Louis Zimmerman and B. F. Norris for respondents.
    The notices filed by the plaintiffs were sufficient. (Wood v. Duff Gordon, 222 N. Y. 88; Dinsmore v. City of New York, 221 App. Div. 755.)
   Lehman, J.

While the infant plaintiff was sitting with her mother upon a bench in a park in the borough of The Bronx in the city of New York, a piece of burning newspaper was blown in a gust of wind against her face, and the child sustained some injuries. It appears that an employee of the city had set fire to the newspaper and to some other rubbish which he had collected. Thereafter these actions were begun against the city.

The evidence is sufficient to sustain the verdict of the jury that the injuries to the child were caused by an employee of the city. The verdict of the jury was set aside upon the ground that the notice served upon the Comptroller did not comply with chapter 572 of the Laws of 1886, and judgments dismissing the complaints were entered in each action. Upon appeal to the Appellate Division the orders setting aside the verdicts were reversed; the verdicts were reinstated and judgments entered for the plaintiffs.

The notice served states that the damages were sustained through the negligence of employees of the city of New York in permitting a fire to be made in St. Mary’s Park on St. Ann’s Avenue and 141st Street in the Borough of The Bronx, near where said infant was sitting at said time.” It appears that there is but one St. Mary’s Park in the borough of The Bronx. Its extent is thirty-two acres. Its southerly side is on One Hundred and Forty-third street, and its frontage on St. Ann’s avenue is 1,434 feet. Doubtless the place where the injuries were sustained might have been stated with greater nicety, but substantial compliance with the statute, sufficient to enable the officers of the city to locate the place where it is claimed the accident occurred, is all that is required. (Purdy v. City of New York, 193 N. Y. 521.)

The officers receiving the notice could not have had any doubt that the plaintiffs claimed that the accident occurred in St. Mary’s Park. True, the notice places St. Mary’s Park on One Hundred and Forty-first street and St. Ann’s avenue, when in fact it is two blocks distant from One Hundred and Forty-first street. Since it appears that there is only one St. Mary’s Park in The Bronx, and that park extends for over a quarter of a mile along St. Ann’s avenue, the city officers must have understood what park was meant. A private individual would hardly be listened to if he urged that he was misled because the notice placed the park at One Hundred and Forty-first street. Any reasonable person would have known that there was an error in the naming of the street, and would have rejected that as surplusage. The city could not have been misled or prejudiced by the error. The real question is whether the notice is defective-through its omission to state the particular place in the park of thirty-two acres where the accident occurred.

It may be conceded that in a number of cases the court has held notices insufficient though the place of the accident was stated with greater nicety and accuracy than in this case. (Purdy v. City of New York, supra; Casey v. City of New York, 217 N. Y. 192; Weisman v. City of New York, 219 N. Y. 178.) In those cases the plaintiff claimed that a defective sidewalk caused the injuries. Though the city may have information that a person was injured at a particular time and place, yet the statute requires that the injured party should file a notice stating the “ time and. place at which the injuries were received,” in order to apprise the city of the nature of the claim that may be made against it, and thus to give the city the opportunity to investigate such claim. Sidewalks are, ordinarily, not kept in a perfectly smooth condition. In the space of a few hundred square feet there may be many cracks, depressions and other defects of greater or less moment. The city cannot investigate a claim that a particular defect caused injuries unless the place is stated with sufficient particularity to enable the city to locate that defect and investigate the claim. We held that only such a notice constitutes a substantial compliance with the statute.

We apply the same test where a claim is based upon other negligence of the city. The place must be stated with sufficient particularity to enable the city to investigate the claim of negligence. Nothing more may be required. Circumstances must determine in each case whether the notice served is sufficient.

The information contained in the notice of claim that the injuries were sustained by a fire in a small park was sufficient to enable the city to investigate the claim. It left no room for conjecture on the part of the city as to what particular fire the injured party would claim caused the injury. With reasonable certainty the city could determine from the notice itself the fire which it was claimed damaged the infant. A requirement of greater particularity might defeat an honest claim; it could afford no needed protection to the city against a dishonest claim.

We find no ground for reversal in the other contentions raised by the defendant. We hold that upon the plaintiffs’ appeal to the Appellate Division, that court might reverse both the order setting aside the verdict of the jury and the judgment of dismissal.

In each case the judgment should be affirmed, with costs.

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

Judgments affirmed.


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    The People of the State of New York, Respondent, v. Carmelo Lafaro, Appellant.
    (Argued January 14, 1929;
    decided February 13, 1929.)

      Frederick E. Hawkes for appellant.
    Defendant’s motion to dismiss the indictment made at the opening of the case upon the ground that it did not state facts sufficient to constitute the crime charged should have been granted. (People v. Albon, 140 N. Y. 130; Rex v. Everett, 8 Barn. & Ald. 114; People v. Rouss, 63 Misc. Rep. 135; United States v. Gibson, 47 Fed. Rep. 833; United States v. Van Wert, 195 Fed. Rep. 974; Dishon v. Smith, 10 Iowa, 212; United States v. Bayer, 85 Fed. Rep. 425.) Defendant’s motion at the close of the People’s case, and at the close of the whole case, should have been granted. (People v. Wagner, 120 Misc. Rep. 214; 208 App. Div. 828; People v. Alexander, 183 App. Div. 868; People v. Dumar, 160 N. Y. 502; People v. Corbalis, 178 N. Y. 516.) Boyle had no “ function ” to institute a proceeding in Federal court for a violation of the National Prohibition Act. (Gambino v. United States, 48 Sup. Ct. Rep. 137; People v. Cook, 220 App. Div. 110; People v. Conti, 127 Misc. Rep. 224; People ex rel. Cosgriff v. Craig, 195 N. Y. 190.)

      George L. Andrews, District Attorney, for respondent.
    The facts proven clearly constitute the crime charged in the indictment. (People v. Clougher, 246 N. Y. 106; People v. Jackson, 191 N. Y. 293.) It was clearly the public officer’s duty and function to institute proceedings in the Federal courts against the appellant. (Schroeder v. United States, 7 Fed. Rep. [2d] 60; Greenburg v. United States, 7 Fed. Rep. [2d] 65; Katz v. United States, 7 Fed. Rep. [2d] 67.)
   Lehman, J.

The defendant has been indicted and convicted upon a charge of bribing a public officer. The indictment alleges that the defendant did offer and give to a police officer of the village of Waverly, in the county of Tioga, a sum of money “ with intention thereby to influence the aforesaid public officer in respect to his acts and decisions in the exercise of his duties and functions in _that he, the said Carmelo Lafaro, did then and there ask the said public officer, in consideration of said bribe, to refrain from' instituting a criminal proceeding against the said Carmelo Lafaro in the Federal Court of the United States for a violation of the National Prohibition Act.”

The evidence produced at. the trial is sufficient to sustain this allegation. Lafaro maintained a public billiard room in the village of Waverly. There he sold intoxicating liquor. The village chief of police visited the premises, and found some whisky. The next morning the defendant came to the office of the chief of police. He gave him twenty dollars. According to the testimony of the chief of police, the defendant offered to pay him the further sum of twenty dollars every month.

The village policeman is a public officer of the State of New York. Undoubtedly the evidence is sufficient to establish that the defendant sought to influence him in respect to some act or decision. The police officer, charged with duties in respect to the preservation of the public law and order, was to “ let ” the defendant continue his unlawful sales of liquor in a billiard room. The defendant did not state with artistic accuracy the consideration which he intended to exact from the police officer, in return for money given and offered. Sales of liquor in a billiard room are expressly prohibited by section 348 of the Penal Law of the State, and the penalty is fixed by section 351. Such sales are also an offense under the National Prohibition Act, and the penalty under that statute is more severe. The defendant told the policeman that if complaints were made that the defendant was selling liquor in his billiard room, the policeman could “ get by ” by saying that he was without any jurisdiction. It seems to us quite clear that from such testimony the jury might infer that the defendant paid and offered money to the policeman, a public officer of the State of New York, to influence him not to invoke the provisions of the Federal law against the defendant.

The National Prohibition Act, enacted by Congress in pursuance of the United States Constitution, is part of the law of the land. Its provisions are as binding upon the residents of the State of New York as if they had been enacted by the Legislature of the State of New York. A private citizen of the State might charge the defendant before the appropriate tribunal with an offense under the law of the United States, as well as with an offense under the law of the State of New York. The police officer, when he puts on the uniform of the State, divests himself of no privilege he enjoys, or duty he owes, as a citizen of the United States. Like any other citizen he might charge the defendant before the Federal authorities with an offense under the National Prohibition Act. The offense of which the defendant has been convicted is that he gave money to an officer of the State to induce him to refrain from making such a charge. It is said that in instituting a prosecution against the defendant in a Federal court, the police officer acts only as a citizen; that such an act is not performed in the exercise of powers or functions as a public officer of the State, and that even corrupt influence to cause him to refrain from such an act cannot constitute bribery of a public officer as defined by the Penal Law (Sections 378 and 1822).

A private citizen has the right to institute criminal proceedings against a wrongdoer, and, at times, to arrest without a warrant. He may be called upon to perform certain duties in connection with the enforcement of the law and the preservation of peace and order. In most communities, duties and functions in respect to the preservation of peace and order have been conferred upon public officers to supplement, and under ordinary circumstances, to supplant, action by private citizens. Such officers in the exercise of their duties and functions are armed with some powers which private citizens do not possess. Blackstone has suggested that n order to avoid the danger of abuse of such powers, it may be well that these officers should remain in ignorance of their extent. (1.. Blackstone’s Commentaries, page 3561) In this State the Legislature has attempted to meet such a danger, if it exists, by statutory definitions of the powers of policemen and other peace officers. The extent of special powers and immunities, conferred upon public officers, and the field for the exercise of such powers may properly be subject to rigid definition; but where a public officer performs an act which any private citizen might do in the same manner, the distinction between official function and private right; between duty owed as an official and duty owed as a citizen, becomes unsubstantial.

The village policeman is an officer of the State of New York, charged with the duty of protecting the peace and order of the State. The National Prohibition Act is the law in the State of New York, for under article VI of the United States Constitution, all laws of the United States made in pursuance of the Constitution are the “ supreme Law of the Land.” Nevertheless, a violation of the Federal act constitutes no offense against the peace and dignity of the State. ( United States v. Lanza, 260 U. S. 377.) The Federal statutes confer no special powers upon State police officers in the enforcement of the law of the United States. (Lenski v. O’Brien, 207 Mo. App. Rep. 224.) We assume, without deciding, that the statutes of this State confer upon the officers of the State no powers and do not expressly impose upon them any duties in respect to the enforcement of the constitutional or statutory prohibition of the manufacture, transportation or sale of intoxicating beverages. Where a State officer co-operates with Federal officers in the enforcement of the Federal statute, he must, at least for some purposes, be regarded as a Federal agent. (Gambino v. United States, 275 U. S. 310.) From these premises the defendant urges us to draw the conclusion that the payment of money as charged in the indictment was not made with intent to influence the police officer in respect to any act in the exercise of his powers or functions as an officer of the State. Though we accept the premises, we reject the conclusion.

Under our Federal Constitution, there is a division in the field of governmental authority between State and Nation. For want of a better term we speak of a division or duality of sovereignty.” In English decisions, treatises and statutes, we often find such expressions as the “ King’s peace ” and the “ King’s justice.” Such expressions, of course, mean nothing more than the peace and justice of the realm. Offenses against the peace of community or realm are regarded as offenses against the sovereign. Public officers are the king’s officers, and criminal prosecutions are instituted in the name of the sovereign. We have carried these concepts into our own law. In the field where the Constitution allots authority to Congress, the United States takes the place of the King. Offenses against its laws are offenses against the peace and dignity of the United States, and criminal prosecutions are conducted in its name. The officers who execute those laws are officers of the United States. Outside of that field the State takes the place of the King.

Juridical concepts may not blind us to actual conditions. Distinctions based upon the duality of sovereignty in our structure of government do not affect the duty of obedience to all law by all citizens, nor the harm that may come to the peace and order of the community through disobedience of any law. Public officers of the State of New York are required by the Constitution of the State to take an oath that they will “ support the Constitution of the United States.” Governor Smith, in his memorandum approving the repeal of the State enforcement act, declared that the peace officers of the State are required to enforce the Federal law with as much force and vigor as they would enforce any State or local ordinance,” though they must take offenders to the Federal courts instead of the State courts for prosecution.

We are not, at this time, called upon to determine the extent of the duty of police officers of the State to enforce a Federal law — or even whether any official, as distinguished from a moral duty, exists. The village police officer, in the course of his unquestioned duty to preserve peace and order, has learned that a Federal statute is being violated. Prosecution in the Federal courts' might put an end to this violation. The defendant has sought to induce a public officer, for a corrupt and concealed consideration, to refrain from instituting appropriate proceedings to punish and suppress a violation of a law binding upon all residents of the State. Though we should assume that the law of the State does not require the police officer to suppress a violation of the Federal law, the question still remains whether complaint to the Federal authorities of a violation discovered by the officer in the course of his duty is not part of the function of a State police officer, at least where continued violation tends to affect the public health, morals or order.

The answer to that question seems to us quite clear. The gist of the crime of bribery is the wrong done to the people by corruption in the public service. None can doubt that this defendant sought corruptly to influence a police officer, in the performance of an act which, it is evident, the defendant, the police officer and the Governor of the State considered a public duty owed by a public servant. We have given to the statutory definition of bribery a construction broad enough to cover cases where a public officer has accepted a bribe to act corruptly in a matter to which he bears some official relation, though the act itself may be technically beyond his official powers or duties. (People v. Jackson, 191 N. Y. 293; People v. Clougher, 246 N. Y. 106.)

Duties and functions of police officers have never been limited rigidly to the field of law enforcement, in which police officers exercise special powers and enjoy special immunities. Police officers are the guardians of the public peace, but the public is accustomed to look upon them also as the guardians of the comfort, safety and good order of the locality against dangers arising from other causes than offenses against the peace and dignity of the State. No line of demarcation can be drawn definitely. Generally, if not universally, police officers of cities and villages are called upon to perform varied service for the comfort and safety of the public, ranging from assisting old ladies across a highway to the killing of mad dogs or rescuing the drowning. Perhaps well-intentioned citizens might perform many of these services voluntarily, but police officers may be and often are required to perform, as an official function, what well-intentioned private citizens might attempt to do voluntarily. In matters germane to the official functions and duties of police officers there may be a wide scope for the exercise of discretion as to the form and range of services to be rendered; but it can hardly be doubted seriously that a police officer might be directed by his official superior to report violations of a Federal statute to the Federal authorities and that failure to carry out such directions would be an official dereliction.

We have said that there is to be no traffic in the privilege of invoking the public justice of the State.” (Union Exchange Nat Bank of N. Y. v. Joseph, 231 N. Y. 250.) In effect the defendant asks us to hold that while traffic with a public officer of the State in the privilege or duty of invoking the public justice of the State undoubtedly constitutes the crime of bribery, traffic with such an officer in the privilege of invoking the public justice of the Nation does not. Such distinctions have no place in the administration of the criminal law. We refuse to read them into the statute. At times violation of the Federal Prohibition Law may constitute an offense also under the law of the State. (See People v. Vandewater, 250 N. Y. 83.) In the present case, too, the defendant’s sale of intoxicating liquor in a billiard room constituted an offense against both State and Nation. Clearly, under such circumstances, a decision to institute proceedings in the Federal courts to end an act which disturbs the peace and order of the community cannot be said to be wholly outside of the functions of the police officer. Even where the act which violates the Federal statute is not a violation of any law of the State, in a broad sense, the public peace and order may yet be disturbed by violation .of any law, regardless of its source.

If enforcement of State law is confided solely to the public officers of the State, and the enforcement of the Federal law is confided solely to the public officers of the United States, then in the interests of the community there may well be co-operation between the two. At least, we may say that .such co-operation in the interests of the public is not outside the functions of officers to whom law enforcement has been confided. Otherwise the complications inherent in our system of dual sovereignty would become intolerable. Bribes offered to police officers to refrain from co-operation with Federal authorities must bring corruption into our police force. We will not impute to the Legislature any intention that narrow distinctions should be drawn between traffic with a public officer affecting the peace, order and justice of the State, and traffic with the same officer affecting the peace, order and justice of the United States, where the purpose and the natural effect of the act is to corrupt the police of the State.

For these reasons the judgment affirming the defendant’s conviction should be affirmed.

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

Judgment affirmed.


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    Alice M. Carey, as Administratrix of the Estate of Joseph M. Carey, Deceased, Respondent, v. New York Central Railroad Company, Appellant.
    (Argued February 18, 1929;
    decided March 19, 1929.)

      Raymond C. Vaughan and Noel S. Symons for appellant.
    Both the railroad and plaintiff’s intestate must be engaged in interstate commerce to come within the provisions of the Federal act. (Shanks v. D., L. & W. R. R. Co., 239 U. S. 556.) There is no presumption of an engagement in interstate commerce. (Osborne v. Gray, 241 U. S. 16; Martin v. St. L., S. F. Ry. Co., 258 S. W. Rep. 1023; Illinois Central Railroad v. Behrens, 233 U. S. 473.) The test determinative of the character of the employment, whether interstate or intrastate, is the nature of the work being done at the time of the happening of the accident. (M. & St. L. R. Co. v. Winters, 242 U. S. 353.) Where there is uncertainty as to the ultimate destination of the shipment after stoppage in transit subsequent movements wholly within the State are intrastate and not interstate. (Atlantic Coast Line R. R. Co. v. Standard Oil Co., 16 Fed. Rep. [2d] 441; C., M. & St. P. R. Co. v. Iowa, 233 U. S. 334; M., K. & T. R. Co. v. Page, 184 S. W. Rep. 1051; Coley v. K. C. S. R. Co., 95 S. W. Rep. 96.) If the journey is interrupted for storage or distribution to various points for the business purposes and profit of the owner, the continuity of the interstate movement is broken. (Champlain Realty Co. v. Town of Brattleboro, 260 U. S. 366; Gulf Refining Co. of Louisiana v. Phillips, 5 Fed. Rep. [2d] 514; 11 Fed. Rep. [2d] 967; General Oil Co. v. Crain, 209 U. S. 211; Bacon v. People of Illinois, 227 U. S. 504.) At the time of the happening of the accident neither the defendant nor the deceased were engaged in interstate commerce. (Chicago Junction R. Co. v. Industrial Board of Illinois, 277 Ill. 512; Atlantic Coast Line R. R. Co. v. Standard Oil Co. of Kentucky, 48 Sup. Ct. Rep. 107; Atlantic Coast Line R. Co. v. Standard Oil Co., 12 Fed. Rep. [2d] 541; Seaboard Air Line Ry. Co. v. Lee, 14 Fed. Rep. [2d] 439; Gulf Refining Co. of Louisiana v. Phillips, 5 Fed. Rep. [2d] 514; 11 Fed. Rep. [2d] 967; B. & O. S. W. R. R. Co. v. Settle, 260 U. S. 166; Chicago, M. & St. P. R. Co. v. Iowa, 233 U. S. 334; Champlain Realty Co.
      v. Town of Brattleboro, 261 U. S. 366; General Oil Co. v. Crain, 209 U. S. 211; Bacon v. People of Illinois, 227 U. S. 504.)

      Hamilton Ward for respondent.
    The movement of the cars at the time of the accident and intestate’s employment therein was interstate. (Pedersen Case, 229 U. S. 146; Collins Case, 253 U. S. 77; Cott v. Lehigh Valley R. Co., 231 N. Y. 67; Barry v. Erie, 209 App. Div. 848; Hester v. E. Tennessee & W. N. C. R. Co., 254 Fed. Rep. 787; Louisville & Nashville Ry. Co. v. Parker, 242 U. S. 13; Collins v. Erie Railroad, 253 U. S. 77; North Carolina Ry. Co. v. Zachary, 232 U. S. 348; Erie R. R. Co. v. Winfield, 244 U. S. 170; Limstrom v. New York Central R. R. Co., 186 App. Div. 529; 230 N. Y. 551; Erie R. R. Co. v. Szary, 253 U. S. 86; Pittsburgh, C., C. & St. L. Ry. Co. v. Glinn, 219 Fed. Rep. 149; Seaboard Airline Co. v. Koennecke, 239 U. S. 352; Kinney v. N. Y. C. R. R. Co., 221 N. Y. 133; Erie R. R. Co. v. Krysanski, 238 Fed. Rep. 143; Stafford v. Wallace, 258 U. S. 495; Lemke v. Farmers Grain Co., 258 U. S. 50.)
   Cardozo, Ch. J.

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

Carey, an engineer in the service of defendant, was taking a string of coopered cars from the defendant’s yard in Buffalo to another yard or junction. The cars were to be sent from the junction to the Buffalo grain elevators, where they were to be held in readiness for expected orders for the movement of grain. In switching the cars at the junction from the main track to a side one, Carey was killed. The question is whether he was engaged, when injured, in interstate commerce.

Buffalo is one of the great grain ports of the world. The grain that comes there through the Great Lakes is transferred into elevators until forwarded beyond. The place in Buffalo where these elevators have been built is known as Burroughs Lot. How long the grain may be left there after it has been lifted from the vessel, the record does not show. Very often, perhaps generally, it is discharged from the elevator at once, to be carried in cars to the seaboard or to intermediate points. We take judicial notice of the fact that this, is by no means the invariable practice. There are times when it is kept in storage at the elevators to be reconditioned for the owners or held for higher prices (cf. Shafer v. Farmers Grain Co., 268 U. S. 189, 192). The course of dealing in that regard will be traced at greater length hereafter. As to the place of origin of the grain, much, of course, will depend upon the location of the terminal. So far as the Buffalo elevators are concerned, the evidence is 'that all the grain there elevated, whether in transit or for storage, is brought from other States or countries. At active seasons, as in the fall movement of the crops, hundreds of cars leave the elevators in a day. In the slack season, as in June when Carey met his death, the cars are comparatively few. Movement begins in every instance at the Pennsylvania yard, which alone among the railroads has tracks contiguous to the terminals. When shipments are to be made to points on other lines, the Pennsylvania agent gives notice to the appropriate line to send the needed cars. Shipment is made at the elevators upon the cars of the line over whose route the grain is to be carried. This line collects the freight, and accounts to the Pennsylvania for the haul within the switching limits.

On June 9, 1927, at 3:45 p. m., the Pennsylvania agent at Burroughs Lot telephoned to the defendant for ten coopered cars. No orders had then been received for the shipment of grain over the defendant’s line. The agent, instructed by experience, believed that orders would come in, and wished to have the cars at hand in order to avoid delay. They were surplus equipment in anticipation of approaching needs. Of the ten cars dispatched by the defendant in response to this request, two were disabled when Carey was killed in a collision. The other eight arrived at Burroughs Lot on June 10, and were held awaiting orders. One other car belonging to the defendant was already on the spot. There is no occasion to enumerate the cars of other lines.

We have said that no orders had come in when the ten cars were requested of the defendant in anticipation of approaching needs. Some orders did come in, however, later in the day, one for a shipment from an elevator to Fairton, New Jersey, the other for a shipment to Batavia, New York. Since the cars were not collected till after 8 p. m., the inference is not unreasonable that before they left the yard, the two orders had been received by the agent at Burroughs Lot. The grain billed to Fairton, New Jersey, was placed the same day on the car already at the elevator. The grain destined for Batavia was placed on one of the eight cars arriving on June 10, two cars, it will be recalled, having been disabled on the way. The record does not tell us to whom this grain belonged, or how long it had been in storage before being loaded at the yard. After the shipment to Batavia, there remained seven of the defendant’s cars, which moved at later dates. One, loaded on June 11, was billed to the Buffalo Flour Mills, at Buffalo, New York. The other six were loaded with grain belonging to B. F. Schwartz & Co., and were billed on June 14, some to New York city, and some to Weehawken, New Jersey. Schwartz <& Company became the owners of this grain on June 9 while it was in transit on the Lakes, and gave orders for its reshipment on its delivery at the port.

The disposition of the cars has now been traced from the time of their arrival at the Pennsylvania yard. The question is still unanswered whether in their movement to that yard they were in interstate or local commerce. For this there is need that other data be before us. Contracts for the carriage of grain over the waters of the Lakes describe the elevators at Buffalo as the point of destination. The grain is at rest, so far as the form of the documents discloses, when lifted from the vessel. Even so, the form is not conclusive if there has persisted an intention to move the grain forward in a transit substantially continuous, the halt at the elevators being merely “ a convenient step in the process of getting it to its final destination ” (Binderup v. Pathe Exchange, 263 U. S. 291, 309; B. & O. S. W. R. R. Co. v. Settle, 260 U. S. 166, 170, 173; Chicago Bd. of Trade v. Olsen, 262 U. S. 1, 33; Flanagan v. Federal Coal Co., 267 U. S. 222; Cott v. Erie R. R. Co., 231 N. Y. 67; cert, denied, 257 U. S. 636). The case for the plaintiff has been argued on the. assumption that there is always that intention, or that exceptions are so extraordinary that they may be put aside as unimportant. But the difficulty is that the assumption is unsupported by the record. We are not informed by the evidence what proportion of the grain is received for transfer and what proportion held in storage. The burden is on the plaintiff to bring the case within the statute (Osborne v. Gray, 241 U. S. 16). If we turn, however, from the record and refer to public documents within the orbit of judicial notice, we see that there are other activities, such as reconditioning and storage, which are functions of these terminals, besides the furtherance of transit. Much information is to be gathered from volume III of a report of the Federal Trade Commission on the Grain Trade, and particularly on the subject of Terminal Grain Marketing (Publications IT. S. Federal Trade Commission, December 21, 1921). The activities of terminal elevators are there classified as “ private ” and " public.” Terminals classified as private operate elevators primarily for their own merchandising purposes, any warehousing done for others being secondary and incidental. Some of the terminals at Burroughs Lot are listed under the heading private.” Terminals classified as “ public ” do business for the public generally. Both classes of elevators do other things besides transferring the grain, i. e., elevating and discharging it as an incident of transit. They recondition it and store it (see vol. III of said report, pp. 292, 293). The elevators at Buffalo, according to the report (pp. 117, 109, 147), are chiefly for reshipment, but this is not true even at Buffalo during the winter months (p. 109), and there is no suggestion that at any time the quantities held for reconditioning or for storage, either by private or by public elevators, are negligible exceptions. The diverse functions of transportation and storage appropriate to the terminals are reflected in the definitions by supervisory commissions (Report, p. 84). Transportation “ elevation is defined as unloading grain from cars or grain-carrying vessels into a grain elevator and loading it out again after a period of not to exceed ten days; it does not include treatment ’ or grading, cleaning, and clipping of grain; and retention in an elevator beyond ten days becomes storage and is not a part of the service of elevation as that word is used in the statute ” (Allowances to Elevators by U. P. R, R. Co., 12 I. C. C. 85). The time allowance before storage differs at different ports (Report, p. 147; cf. Peter T. Dondlinger, The Book of Wheat, N. Y., Orange Judd Co., 1908, pp. 201-213), and the charge increases as the storage lengthens.

This analysis of the functions of terminal elevators' at Buffalo and elsewhere destroys the basis for the statement that the ten coopered cars when on their way to Burroughs Lot had been allocated by the defendant to the service of interstate commerce. Their use was dependent upon needs unknown and unknowable. In saying this we assume that grain shipped over the Lakes to be reshipped at Buffalo is in interstate commerce while awaiting transfer at an elevator. We assume too that cars allocated to the carriage of grain in course of transfer are in interstate commerce during the preliminary movement from the yard or the roundhouse to the elevating terminal (L. & N. R. R. Co. v. Parker, 242 U. S. 13, 14; Penn. R. R. Co. v. Morrison, 3 Fed. Rep. [2d] 986; B. & O. R. Co. v. Darling, 3 Fed. Rep. [2d] 987). If all this be assumed, the plaintiff must still fail upon the record now before us. No one knew or could know when the request was made to send cars to the elevators in anticipation of approaching needs, whether the subject of the next shipment would be grain received at the terminals as part of a continuous transit, or grain held in storage and at length ordered to be released. If such an order had come before the arrival of the cars, the entire ten might have been used to carry grain that had been at rest for weeks or even months. Grain held for storage in the hope of higher prices is no longer grain in transit if the concept of transit is to be confined within any reasonable limits (Atlantic Coast Line R. R. Co. v. Standard Oil Co. of Ky., 275 U. S. 257, 268; Atlantic Coast Line R. R. Co. v. Standard Oil Co. of N. J., 12 Fed. Rep. [2d] 541, cert, denied, 47 Sup. Ct. 102; Seaboard Air Line Ry. Co. v. Lee, 14 Fed. Rep. [2d] 439; affd., 276 U. S. 591; Erie R. R. Co. v. U. S., 32 Fed. Rep. [2d] 613). This is so though the elevator companies are solely public warehousemen. It is even more plainly so where the grain in storage is their own. The quality of the movement from the terminals in response to future orders is thus incapable of prediction till the orders are received. The preparatory movement — the movement of empty cars as a supply for future needs — is not more certain than the movement for which it is preparing. Cott v. Erie R. R. Co. (supra), much relied upon by plaintiff, involved a very different situation. There the present fact was that a purpose “ preconceived and preannounced (231 N. Y. at p. 71) had dedicated the cars that Cott was switching to the service of foreign commerce. We held that in such circumstances the remedy was not lost because the present fact was unknown to the members of the switching crew. Here the only dedication was to the aid of commerce generally. The present fact controls in this case as in that. Carey, while engaged in the prehminary movement, was not in interstate or in local commerce as later exigencies might show that the cars would be utilized for the one purpose or the other (Grigsby v. Southern Ry. Co., 3 Fed. Rep. [2d] 988, 990; cert, denied, 268 U. S. 704; Illinois Cent. R. R. Co. v. Perry, 242 U. S. 292). He was in the one or in the other according to the instant need. Unless his service was so related to commerce between the States that he was acting in such commerce at the time of the collision, the remedy for his injuries is measured by the local law (Illinois Cent. R. R. Co. v. Behrens, 233 U. S. 473; Chicago, B. & Q. R. R. Co. v. Harrington, 241 U. S. 177, 180; Chicago Junct. Ry. Co. v. Indust. Bd. of Ill., 277 Ill. 512).

Cases such as Stafford v. Wallace (258 U. S. 495) and Lemke v. Farmers Grain Co. (258 U. S. 50) are pressed upon us as sustaining the conclusion that the preliminary movement is subject to the Federal statute if, by reason of the general character of the business, there is a strong preponderance of probability that the later movement will be one in interstate commerce, even though the outcome may show it to be a movement in another field. The silence of the record as to the extent of deliveries for storage in comparison with those for transfer makes it impossible for us to say how strong the preponderance is, if indeed there is preponderance at all. But what was said in the cases cited has not modified the rule that an employee is within the protection of the Federal statute or without it according to the particular work that he is doing at the moment of the injury (Shanks v. D., L. & W. R. R. Co., 239 U. S. 556). To switch coal cars to a bin where fuel will be conveniently at hand for any engine that may need it, is not a service within the statute, though interstate as well as local traffic will be helped by what is done (Chicago, B. & Q. R. R. Co. v. Harring ton, supra; cf. Lehigh V. R. R. Co. v. Barlow, 244 U. S. 183). To haul rolling stock to a yard where it can be used indiscriminately for one purpose or another is not commerce between the States, though it may be an indispensable act of preparation if commerce is to go on at all (Shanks v. D., L. & W. R. R. Co., 239 U. S. 556; Erie R. R. Co. v. Welsh, 242 U. S. 303). Acceptance of the plaintiff’s argument would lead to the conclusion that if Carey had brought his cars to the terminals and had afterwards been injured while hauling them away, laden with grain that had been stored for weeks or months, the ancillary movement would have been within the act and the principal without it.

We have said that Stafford v. Wallace and Lemke v. Farmers Grain Co. (supra) have not modified the rule that the particular service, and not the general character of the business, is the test of interstate commerce in the application of the ’ statute. The first (Stafford v. Wallace) had to do with the validity of an act of Congress, the Packers and Stockyards Act of 1921 (42 Stat. 159), providing for the supervision by Federal authorities of the business of the commission men and five stock dealers in the great stockyards of the country. The court held that so much of the business was interstate as to justify regulation of the business in its entirety, even though a good deal of it was intrastate or local. The rationale of the ruling was explained with great clarity by Taft, Ch. J., writing for the court, in Atlantic Coast Line R. R. Co. v. Standard Oil Co. of Kentucky (supra, at p. 272). The second case, Lemke v. Farmers Grain Co., supra (followed in Shafer v. Farmers Grain Co., supra), was concerned with the validity of an act of North Dakota, laying restrictions upon grain elevators doing business in that State. The court held that so much of the business was interstate — 90% interstate and 10% local (268 U. S. at p. 192) — as to make the effect of the restrictions an unreasonable burden on interstate transactions.

The constitutional power to pass a statute is one thing, and the construction of a statute when enacted is another. The question before us here is not the constitutional power of Congress to extend the application of the Employers’ Liability Act to operations less direct and immediate in their relation to interstate or foreign commerce. The question here is the meaning of the statute which it has chosen to adopt. In adopting the Safety Appliance Act, it chose to give protection to travelers and employees upon the trains of interstate carriers, whether the transit at the moment of the injury was interstate or local (Ward v. Erie R. R. Co., 230 N. Y. 230, 232; cert, denied, 256 U. S. 696; Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33). In adopting the Employers’ Liability Act, it chose to limit the protection by the nature of the present service. Stafford v. Wallace and Lemke v. Farmers Grain Co. confirm what was said in Illinois Central R. R. Co. v. Behrens (supra, at p. 477) that it had power- to go farther. It has not done so yet.

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

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

Judgments reversed, etc.