text:
    Anna Bohmert, Appellant, v. William R. Bohmert, Respondent.
    Husband and wife — abandonment — action for separation — evidence — testimony of offers to return competent in separation action for abandonment — conclusiveness of evidence of intention of wife to abandon husband — proper refusal to give weight to offer to return made eight months after departure — duty of husband when wife has abandoned him and thereafter offers to return — sufficient offer of reconciliation — offer of wife to return must be made in good faith within reasonable time — testimony of facts and circumstances always competent on question as to what is reasonable — letter written by plaintiff to husband on occasion of previous separation not objectionable as confidential communication.
    1. Evidence of offers to return is properly received in a separation action for abandonment as bearing on the question of abandonment or temporary absence and the question of the right to return after an abandonment.
    2. Departure from the home, followed by the commencement of an action on charges afterwards withdrawn, may be evidence bearing on a wife’s intention to abandon her husband, but it is not conclusive. It is her privilege to change her mind, drop her charges and ask her husband to receive her. Her conduct amounts to. abandonment only if it is persistent and obstinate. Where, however, for eight months after plaintiff left her husband she made no offer to return although he had offered to receive her, the court correctly refused to give weight to the plaintiff’s offer to return made that long after her departure and was justified in finding an abandonment on the date thereof.
    3. Offers to return made after the cause of action for abandonment has accrued, are of no avail where the husband has in good faith indicated his willingness that the wife should five with him and she has unreasonably refused. When the wife leaves the husband and without justification brings an action against him for separation, the husband’s marital duty to her is .reduced towards a minimum. A formal offer of reconciliation in the course of the action may be enough. It is not his duty to pay court to an unrepentant wife to induce her to return.
    4. No period of absence as a prerequisite to an action for abandonment is prescribed by the statute (Civ. Pr. Act, § 1161). The offer or consent to return after a departure with the intention of not returning, to be effective, must, therefore, be made in good faith within , a reasonable time after departure or at least after the husband’s offer to receive the wife. What is reasonable will depend on the circumstances of the case and the conduct of the parties; consequently the facts and circumstances are always competent evidence on the question.
    5. A complaint that a letter written to her husband by plaintiff on the occasion of a previous separation was improperly considered as evidence of a prior abandonment for the reason that it was a confidential communication between husband and wife, cannot be sustained. It was not a confidential communication induced by the marriage relation but was a statement characterizing an act and thus evidence of the act of abandonment and it was not offered as evidence in chief but only to contradict plaintiff’s evidence that when she left her husband on that occasion she intended to return; Furthermore, the error, if any, was not substantial as to the issues actually decided.

      Bohmert v. Bohmert, 213 App. Div. 103, affirmed.
    (Submitted December 11, 1925;
    decided January 12, 1926.)
    Appeal from a judgment, entered June 5, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of plaintiff entered upon a dismissal of the defendant’s counterclaim which, with the reply thereto, presented the only issue tried, the complaint having been dismissed for failure of proof, and directing judgment in favor of defendant upon said counterclaim.

      William 0. Qennert for appellant.
    The trial court and the Appellate Division erred in admitting in evidence the wife’s letter to her husband relating to her going to Buffalo on October 1, 1921, over plaintiff’s objections and exception. (Stillman v. Stillman, 187 N. Y. Supp. 383; Fuller v. Fuller, 177 Mass. 184; People v. Kodat, 158 Mo. 25.) The Appellate Division erred in excluding as a matter of law from the evidence the testimony of the various offers of the wife to return to her husband and in vacating the findings of fact on this point of the trial court. (McCutcheon v. McGahey, 11 Johns. 281; McGahey v. Williams, 12 Johns. 293; Pearson v. Pearson, 230 N. Y. 141; Blowers v. Sturtevant 4 Den. 46; Allers v. Allers, 194 App. Div. 96; Giebert v. Giebert, 5 Misc. Rep. 557; Sturm v. Sturm, 80 Misc. Rep. 277; Raischfield v. Raischfield, 100 Misc. Rep. 561; Harlow v. Harlow, 204 N. Y. Supp. 128; Ruckman v. Ruckman, 58 How. Pr. 278; Bell v. People, 6 Hun, 302; Barlow v. Barlow, 2 Abb. [N. S.] 259; Wendling v. Wendling, 134 N. Y. Supp. 55; Finkelstein v. Finkelstein, 174 App. Div. 416.) The Appellate Division erred as a matter of law in finding that there was a desertion of the husband by the wife on June 18, 1923, when the uncontradicted evidence shows that at that time the parties had already separated and had ceased cohabitation, thereby rendering further separation impossible. (People ex rel. Comrs. of Charities, etc., v. Cullen, 153 N. Y. 629; Fitzgerald v. Fitzgerald, L. R. [1 P. & D.] 684.)

      Henry Goldstein and Samuel Gottlieb for respondent.
    The finding of the Appellate Division that the plaintiff abandoned the defendant on June 18, 1923, is supported by the overwhelming weight of the evidence. The defendant’s right to a judgment of separation by reason thereof could not be defeated by plaintiff’s offers to return made long after the commencement of this action. (Weaver v. Pacific Improvement Co., 234 N. Y. 418; Frank v. Von Bayer, 236 N. Y. 473; Williams v. Williams, 130 N. Y. 193; Uhlmann v. Uhlmann, 17 Abb. [N. C.] 236; People v. Crouse, 86 App. Div. 352; Cargill v. Cargill, 1 Sw. & Tr. 235; Cudlipp v. Cudlipp, 1 Sw. & Tr. 229; Basing v. Basing, 3 Sw. & Tr. 516; Murray v. McLaughlin, 1 Scotch Sess. Cas. [2d Ser.] 294; Winchcombe v. Winchcombe, 8 Scotch Sess. Cas. [4th Ser.] 726; Muir v. Muir, 6 Scotch Sess. Cas. [4th Ser.] 353.) No error was committed by the admission in evidence of the wife’s letter to her husband. (Fowler v. Fowler, 11 N. Y. Supp. 419;
      Norris v. Lee, 136 App. Div. 685; Sheldon v. Sheldon, 146 App. Div. 430; Warner v. Press Publishing Co., 132 N. Y. 181; Woodrick v. Woodrick, 141 N. Y. 457; Aldrich v. Ætna Life Ins. Co., 204 N. Y. 83; Larkin v. Nassau El. R. R. Co., 205 N. Y. 267; Donovan v. Alliance Electric Co., 191 App. Div. 303.) The Appellate Division properly-held that the Special Term erred in receiving evidence of offers to return made by plaintiff long after the commencement of this action. (3 Abb. Tr. Ev. [3d ed.] 2041; Smith v. Smith, 90 N. Y. Supp. 927; Averett v. Averett, 189 App. Div. 250; 232 N. Y. 519; Ferrier v. Ferrier, 4 Edw. Ch. 296.)
   Pound, J.

This is an action for a separation. The parties hereto had had numerous unhappy differences and dissensions which culminated in an altercation over a woman who had been brought by the wife into their home as an investigator or detective under the false pretense that she was a friend of the wife whom the husband had previously met. The husband ordered the woman out of the house on the day she arrived. Obviously she had been brought in to be a witness for the wife. Plaintiff in a rage left with her. This Was on June 18, 1923. On June 21, three days thereafter, she commenced this action. The complaint alleges numerous acts of alleged cruel and inhuman treatment. The answer denies the material allegations of the complaint and alleges that plaintiff abandoned defendant on June 18. The reply denies the abandonment and justifies the departure of the wife as being due to the conduct of the husband.

On June 29 a motion for temporary alimony was heard. Defendant in his affidavit in opposition stated that his home is now ready for her ” and, therefore, asked that the motion be denied. The motion was denied. On March 28, 1924, plaintiff made a motion for leave to discontinue the action which was denied.

When the case came on for trial on April 24, 1924, the trial court dismissed the complaint for failure of plaintiff to present any proof in support of its allegations. The plaintiff made no attempt to establish her cause of action. The findings are to the effect that plaintiff left the house temporarily, with the intention of returning thereto; that defendant’s offer on the motion for alimony to take her back was made in bad faith to defeat the motion; that on February 26, 1924, eight months after bringing suit, she offered to return to his home, but the offer was rejected on the ground that she had made an irrevocable election by commencing this action (this offer was, however, in the form of a formal demand on the husband made by the wife’s attorneys); that the offer to return was renewed by plaintiff’s attorneys both at the opening of the trial and at the conclusion of defendant’s case and at the conclusion of the entire case, but was refused; that by so refusing defendant had deserted plaintiff. The counterclaim of the defendant for a separation on the ground of desertion Was dismissed. Both complaint and counterclaim having been dismissed, no legal separation was decreed.

From the judgment entered on this decision defendant appealed. The Appellate Division struck out the foregoing findings and made new findings. It found that the defendant’s offer on the motion for alimony to take plaintiff back was made in good faith and that plaintiff refused to accept it; that plaintiff left defendant on June 18, but it made no finding as to her intention to return at that time. It omitted all findings as to plaintiff’s offers to return, except to find that for nearly eight months and until February, 1924, plaintiff made no offer to return to defendant. It properly struck out the finding that defendant deserted plaintiff by reason of his refusal to receive her back on her offer to return as not within the issues. In the opinion it is said that the Special Term erred in receiving evidence of plaintiff’s belated offers to return home made long after the action was brought. A decree of separation against plaintiff for her abandonment of defendant on June 18, 1923, was granted.

The decision thus made appears to rest on the proposition of law that when a wife leaves her husband without legal justification and begins an action of separation against him for cruel and inhuman treatment her election to return to him must be promptly made or evidence thereof will not be relevant on her defense to his counterclaim of abandonment. In making its findings, however, the Appellate Division has proceeded as if this evidence, although in the case, was of no probative force. The rule of law in the opinion is too broadly stated. Evidence of offers to return is properly received in a separation action for abandonment as bearing on the question of abandonment or temporary absence and the question of the right to return after an abandonment.

Although the rule has been generalized as holding that desertion contemplates a voluntary separation of one party from the other without justification, with the intention of not returning ” (Williams v. Williams, 130 N. Y. 193, 197), it has not been held that the mere departure of one spouse from the other with the present intention of not returning is in and of itself a finality which entitles the other' party to a decree.

The right of the wife to return after leaving her husband was recently considered in Silberstein v. Silberstein (218 N. Y. 525). Following the reasoning in that case, the first question to be considered is whether, as between mere temporary absence and intent to abandon, the evidence sustained a conclusion of abandonment. If the wife’s absence is a temporary one which has not ripened into an abandonment at the time she offers to return, it is the husband’s duty to take her back. Departure from the home, followed by the commencement of an action on charges afterwards withdrawn, may be evidence bearing on a wife’s intention to abandon her husband, but it is not conclusive on the rights of the parties. It is her privilege to change her mind, drop her charges and ask her husband to receive her. Her conduct amounts to abandonment only if it is persistent and obstinate. But for eight months after plaintiff left her husband she made no offer to return although her husband had offered on the alimony motion to receive her. The Appellate Division was justified in finding an abandonment on June 18, 1923.

The question then arises as to the duty of the husband when the wife has actually abandoned him and thereafter offers to return, as plaintiff offered to do on the trial in April, 1924. The court said in the Silberstein case: What his [the husband’s] duty was if there had been an abandonment, we do not now decide,” nor need we now attempt to formulate a general definition of duty applicable to all cases. The rule seems well established that offers to return made after the prescribed period, i. e., after the cause of action for abandonment has accrued, are of no avail where the husband has in good faith indicated his willingness that the wife should live with him and she has unreasonably refused. When the wife leaves the husband and without justification brings an action against him for separation, the husband’s marital duty to her is reduced towards a minimum. A formal offer of reconciliation in the course of the action may be enough. Both parties are permitted to preserve their self respect. If the husband has not a “ right to require his wife, even when she is in the wrong, to crawl back to him ” (Newing v. Newing, 45 N. J. Eq. 498), neither is it his duty to pay amorous court to a rebellious and unrepentent wife to induce her to return. (Cargill v. Cargill, 1 Sw. & Tr. 235; Hall v. Hall, 60 N. J. Eq. 469; 65 N. J. Eq. 709.)

Civil Practice Act, section 1161, prescribes no period of absence as a prerequisite to an action for abandonment. The offer or consent to return after a departure with the intention of not returning, to be effective, must, therefore, be made in good faith within a reasonable time after departure or at least after the husband’s offer to receive the wife. What is reasonable will depend on the circumstances of the case and the conduct of the parties. If a wife leaves her husband on the impulse of the moment, animated by a sense of continued wrong and injustice culminating in an episode of anger and under that impulse begins an action for separation, intending to cease all relations with the husband and if the husband’s offer to take her back comes too soon after her departure then to be considered calmly, a time for repentance and reconciliation may still remain. When a litigation is pending, it might be a fair inference that eight months is more than a reasonable cooling time; and that the wife must then be deemed to have made an irrevocable choice to lie in her own bed. Furthermore, she may not trifle with the court. Evidence of her offers to return, not spontaneous or conciliatory in their character, but made under the advice of counsel as a part of the strategy of a law suit, if not irrelevant as matter of law, would be entitled to little weight as evidence of an honest desire to live with her husband. Legal formulas are not always to be accepted as the equivalent of a wifely disposition.

That a belated but genuine offer to return after an act of abandonment, even when followed by an action for separation on the ground of cruelty, cannot be shown as bearing on the good faith of both parties or on the actual intent of the wife in leaving the husband and the willingness of the husband to receive her after her departure, does not follow. The question is whether, within a reasonable time after the separation, she wanted to live with him and he wilfully refused his consent. The facts and circumstances are always competent evidence on the question. Stubborn pride may continue for a long time before it bows its head. A wife who leaves her husband, sues him for separation and fails to establish her cause of action, has not abandoned him as matter of law because the case does not come to trial for a year. Nor has he abandoned her when she herself disregards the marriage contract. (Civ. Prac. Act, § 1163; Hawkins v. Hawkins, 193 N. Y. 409, 412.) The parties are left as they were when neither establishes the right to a decree of separation.

The Appellate Division on the facts found on the evidence reached a correct conclusion in refusing to give weight to the plaintiff’s offer to return made long after a departure from the home which she did not attempt to justify. The ends of justice would not be served if she could so extricate herself from a situation created by her own misconduct.

Appellant complains because a letter written to her husband by her on the occasion of a previous separation was considered by the Appellate Division as evidence of a prior abandonment, claiming that it was a confidential communication between husband and wife. (Civ. Prac. Act, § 549.) To this objection two answers may be made. First, it was not a confidential communication induced by the marriage relation but was a statement characterizing an act and thus evidence of the act of abandonment and, secondly, it was not offered as evidence in chief but only to contradict plaintiff’s evidence that when she left her husband on that occasion she intended to return. Furthermore, the error, if any, was not substantial as to the issues actually decided.

The judgment should be affirmed, without costs.

Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment affirmed.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    A. B. Murray Co., Inc., Respondent, v. Lidgerwood Manufacturing Company, Appellant.
    Contract — sale — delivery — tender — practice — findings — contract of sale of goods with failure to fix time of delivery an engagement to deliver within a reasonable time — duty absolute unless waived by buyer — seller must make tender within reasonable time to put buyer in default — what constitutes a reasonable time a question of fact — failure of court, in action to recover purchase price, to find whether tender was made in reasonable time — finding based upon merely permissible inference of fact may not be supplied by Court of Appeals — unwarranted conclusion of law that buyer may not question reasonableness of time of delivery.
    1. Where a contract to sell does not in express terms fix the time for delivery, the law supplies the missing term and the contract is in legal effect an engagement on the part of the seller to deliver within a reasonable time. Tender within a reasonable time is a condition which must be complied with by the seller before the buyer can be said to be in default, and performance or waiver of the condition must be pleaded and proved in an action by the seller for the price of the goods or for damages for alleged default by the buyer. (Trainor Co. v. Amsinck cfc Co., Inc., 236 N. Y. 392, followed.)
    2. Unless or until waived the duty of the seller, as fixed by the contract, to deliver within a reasonable time, is absolute and unless the buyer has by his own conduct either waived a breach or lulled the seller into inaction, he may insist upon performance by the seller according to the terms of the contract as a condition to performance on his part. Where, however, failure to deliver within a reasonable time has been waived, or where the buyer has led the seller to the reasonable belief that belated delivery would be accepted as within the terms of the contract, the buyer may not urge that a subsequent tender was untimely.
    3. What would constitute delivery within a reasonable time is a question of fact. Where, therefore, in an action to recover the purchase price of goods sold, the plaintiff has pleaded tender within a reasonable time, but the trial judge has made no direct finding upon that point, but has found that no tender of delivery was made until more than eleven months after execution of the contract, and waiver is not pleaded, a conclusion of law is not justified that because no time for delivery was specified and because cancellation of the contract would cause plaintiff loss, “ defendant cannot now say that the plaintiff did not deliver within a reasonable time.”
    4. No finding based upon a merely permissible inference of fact may be supplied by this court where the court which might have drawn such inference chose not to do so.

      Murray v. Lidgerwood Mfg. Co., 212 App. Div. 869, reversed.
    (Argued December 8, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 2, 1925, unanimously affirm - ing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.

      Thomas J. Blake for appellant.
    Plaintiff was bound to perform its contract within a reasonable time, and if it did not defendant had the legal right to refuse to accept the goods. (Trainor Co. v. Amsinck, 236 N. Y. 392; Pope v. Terre Haute Manfg. Co., 107 N. Y. 61; Eppens v. Littlejohn, 164 N. Y. 187; Stoker v. Tyler, 49 Atl. Rep. 18; British Aluminum Co. v. Trefts, 163 App. Div. 184; Beals v. Hirsch, N. Y. L. J. July 17, 1925; Rogers-Pyatt Shellac Co. v. Starr Piano Co., 212 App. Div. 792.)

      William E. Camochan and William M. Sperry, 2nd, for respondent.
    Time as an element of the contract was efiminated, not to be reinstated except by notice, not only because of the loss and forfeiture which would otherwise be inflicted on the plaintiff but also because of the course of dealing between the parties down to and including December 8, 1920, when, in answer to plaintiff’s request of December third, that as to future deliveries the contract be canceled, it received defendant’s letter declining to accede. (Taylor v. Goelet, 208 N. Y. 253; Brede v. Rosedale Terrace Co., 216 N. Y. 246; Rogers-Pyatt Shellac Co. v. Starr Piano Co., 212 App. Div. 792.)
   Lehman, J.

The plaintiff has recovered a judgment for the agreed price of certain tubes. The findings establish that by contract made on the 17th day of April, 1920, the plaintiff’s assignor had agreed to have specially cut for, and to sell and deliver to, the defendant certain steel boiler tubes. No time for delivery was expressly fixed in the contract. Delivery of one item of steel boiler tubes included in this contract was made on November 1st, 1920. This item is not included in the tubes for which the plaintiff now seeks payment. No delivery of those tubes or offer to deliver was made until March 26th, 1921, when the plaintiff mailed to the defendant an invoice for them. On April 4th, 1921, the defendant notified the plaintiff by letter that it would not accept delivery of the tubes for which the plaintiff had rendered the invoice. If the defendant’s refusal to accept delivery of the tubes was wrongful, the plaintiff is entitled to recover the price of the tubes, for findings to which further reference is unnecessary conclusively establish all the other facts which would entitle the plaintiff to maintain an action for the price of the goods, under subdivision 3, section 144 of the Personal Property Law (Cons. Laws, ch. 41).

The contract to sell does not in express terms fix the time for delivery. The law supplies the missing term and the contract is in legal effect an engagement on the part of the plaintiff to deliver within a reasonable time. Tender within a reasonable time is a condition which must be complied with by the seller before the buyer can be said to be in default, and performance or waiver of the condition must be pleaded and proved in an action by the seller for the price of the goods or for damages for alleged default by the buyer. (Pope v. Terre Haute Car & Mfg. Co., 107 N. Y. 61.) These well-established principles have been reiterated by this court in the recent case of Trainor Co. v. Amsinck & Co., Inc. (236 N. Y. 392), overruling the contention there made that in the case of Taylor v. Goelet (208 N. Y. 253) we had laid down a rule which would preclude the buyer from urging that delivery was not tendered or made within a reasonable time unless, by appropriate notice given by the buyer, time for performance was made an essential term of the contract.

In the present case plaintiff by amendment of the complaint made at the trial has pleaded tender within a reasonable time, but the trial judge has not made any direct finding upon that point. He has found a contract made in April, 1920, and no tender of delivery made until more than eleven months thereafter. Even though, as we shall hereafter point out, inference from the testimony produced might perhaps be permissible either that delay was waived or that performance was made within a reasonable time, yet no finding based upon merely permissible inference of fact may be supplied by this court where the court which might have drawn such inference chose not to do so. Certainly the trial judge never intended that such finding should be implied, for he stated his conclusion of law as follows: “ As no time for delivery was mentioned in the contract the plaintiff was bound to deliver within a reasonable time. As the defendant never specified a time within which the plaintiff must deliver and a canceling of the contract would cause the plaintiff the loss of the money it paid for the tubes, the defendant cannot now say that the plaintiff did not deliver within a reasonable time.” We may assume that the premises for the conclusion may be regarded as findings of fact but the conclusion of law must be justified, if at all, upon these premises and no others.

The contract fixes the obligations of the parties. Subsequent events may affect the manner of their performance but unless or until waived the duty of the seller, as fixed by the contract to deliver within a reasonable time, is absolute. So we held in the case of Trainor v. Amsinck Co. (supra) and we indicated that the rule applied to executory contracts of sale even of goods which were to be manufactured. The buyer has a right to insist upon such delivery; the seller is bound to make it. The seller’s obligation can be no less because remedy for breach of the obligation causes him loss; the buyer cannot be compelled to accept other than the stipulated performance because refusal Would leave the seller in a position of hardship. ■ A loss to a party who is in default furnishes no ground in an action at law for depriving the other party of his contractual rights. Unless the buyer has by his own conduct either waived a breach or lulled the seller into inaction, the buyer may insist upon performance by the seller according to the terms of the contract as condition to performance on his part.

What constitutes reasonable time for performance may depend upon many circumstances. Doubtless the attitude of the parties may sometimes be an important factor in determining what is a reasonable time for performance of that particular contract. Good faith may be required of the buyer, and he may be precluded from insisting upon default of the seller when such default is occasioned by his own acts. Sometimes distinction between a waiver of default, or an extension of the time for performance, and acts which enlarge definition of a reasonable time ” as contemplated by the parties beyond the limits which might otherwise be set, is tenuous. Here the contract was made in April, part performance was made and accepted in November. Perhaps a reasonable time for performance had already passed and acceptance of the part performance might then constitute a waiver of the right to insist without further notice upon delivery within reasonable time. Some time thereafter the buyer requested cancellation of the contract. If at that time a reasonable time for delivery had not fully expired, the buyer’s indicated desire not to be compelled to take the goods, may lead to an inference that delay thereafter in tendering the goods. Was due not to fault of the seller but to reasonable consideration for a customer’s position and a desire not to press the buyer too hard, and under the circumstances the belated offer to perform in March and April may still have been timely. We indicate these questions; we may not upon the appeal pass upon them. Waiver is not pleaded, and what would constitute delivery within a reasonable time is a question of fact and may depend upon circumstances not shown by the evidence in this record.

We decide only that the seller’s obligation to deliver within a reasonable time is fixed by the contract and does not depend upon whether failure to deliver according to the contract causes a loss to the seller. Where, however, failure to deliver within a reasonable time has been waived, or where the buyer has led the seller to the reasonable belief that belated delivery would be accepted as within the terms of the contract, then the buyer may not urge that the subsequent tender Was untimely.

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

His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Judgment reversed.


text:
    Evelyn C. Schultze, Appellant, v. Cornelius A. McGuire, Respondent. Otto H. Schultze, Appellant, v. Cornelius A. McGuire, Respondent.
    Negligence — master and servant — motor vehicles — question of fact — use of automobile by chauffeur contrary to instructions of master — employer liable for damages caused by negligence of chauffeur if at time of accident he was taking car back to course he had been directed to take — not liable if chauffeur was still proceeding away from direct road upon his own business — jury not bound to credit testimony of chauffeur that at time of accident he was still proceeding on his own errand.
    1. Where a chauffeur, contrary to his employer’s instruction to take the automobile home, used it for an errand of his own but at the time of the collision, for injuries received in which this action was brought, his errand was fully performed, he was already leaving the place visited by him and was only a very short distance from the direct road which it was his duty to take; his employer is liable for any damages caused by his negligence if at that time he was taking the automobile back to the course which the employer had directed him to take; the employer is not liable if after his errand was finished the chauffeur was still proceeding away from his direct road and upon other business of his own.
    2. Testimony of the chauffeur, an interested witness, that at the time of the accident he was proceeding, contrary to his employer’s instructions, to make a visit at another place and that the automobile was turned towards that place and away from the road home presents a question for the jury which, though it might reasonably credit its truth after weighing all probabilities, yet was not bound to do so.

      Schultze v. McGuire, 212 App. Div. 834, reversed.
    (Argued December 15, 1925;
    decided January 12, 1926.)
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 5, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.

      John Boyle for appellant.
    The question whether the chauffeur had abandoned his master’s business was one of fact and as such should have been left to the jury. (Bryan v. Bunis, 203 N. Y. Supp. 634; Gulliver v. Blauvelt, 14 App. Div. 523; Cunningham v. Castle, 127 App. Div. 580; Ferris v. Sterling, 214 N. Y. 253.) The chauffeur had not abandoned his master’s business at the time of the accident. (Riley v. Standard Oil Co., 231 N. Y. 301; Ferris v. Sterling, 214 N. Y. 253; Cunningham v. Castle, 127 App. Div. 588; Gulliver v. Blauvelt, 14 App. Div. 525; Bryan v. Bunis, 203 N. Y. Supp. 634; Baum v. Schweitzer, 208 N. Y. Supp. 549.)

      Willard N. Baylis, George P. Sanborn and Lester Y. Baylis for respondent,
    The complaints were properly dismissed as it appeared by the uncontradicted and affirmative evidence of both plaintiffs and defendant that at the time of the accident the chauffeur had abandoned his master’s business, and there remained no issue for the jury’s consideration. (Der Ohannessian v. Elliott, 233 N. Y. 326; Hull v. Littauer, 162 N. Y. 569; Reilly v. Connable, 214 N. Y. 586; Flatley v. Dore, 212 App. Div. 801; Cunningham v. Castle, 127 App. Div. 580; Potts v. Pardee, 220 N. Y. 431; Fallon v. Swackhamer, 226 N. Y. 444; Rose v. Balfe, 223 N. Y. 481; Perlmutter v. Byrne, 193 App. Div. 769; Fiocco v. Carver, 234 N. Y. 219.) The court properly withdrew these cases from the jury’s consideration. (Fallon v. Swackhamer, 226 N. Y. 444; Campbell v. Warner, 234 N. Y. 645; Perlmutter v. Byrne, 193 App. Div. 769; Powers v. Wilson, 203 App. Div. 232; Maher v. Benedict, 123 App. Div. 579; Der Ohannessian v. Elliott, 233 N. Y. 326.)
   Lehman, J.

An automobile owned by the defendant and operated by a chauffeur hired by him, collided with an automobile in which the plaintiffs were driving. The plaintiffs brought these actions to recover damages for injuries sustained in the collision. The complaints were dismissed on the ground that the defendant was not liable for negligence, if any, on the part of the chauffeur because at the time of the collision the chauffeur was using the automobile for his own purposes without the defendant’s permission. It is undisputed that on the morning of the accident the chauffeur had used the automobile to drive the defendant and his son from the defendant’s home to the railway station. There is testimony that the defendant told his chauffeur to take the automobile back to his home. The collision occurred as the chauffeur was leaving the grounds of a yacht club, a very short distance from the road which the chauffeur usually took in going from the railroad station to the defendant’s home. We may upon this appeal assume that the evidence conclusively shows that the chauffeur entered the yacht club grounds without defendant’s permission and upon an errand of his own. It is quite immaterial whether the chauffeur in leaving the usual road to his employer’s home and entering the grounds of the yacht club had merely deviated from his employer’s instructions or had temporarily abandoned his employment. At the time of the collision his errand was fully performed; he was already leaving the yacht club; he was only a very short distance from the direct road which, according to his story, it was his duty to take; his employer under such circumstances is liable for any damages caused by his negligence if at that time he was taking the automobile back to the course which the employer had directed him to take; the employer is not hable if after the errand at the yacht club was finished the chauffeur was still proceeding away from his direct road and upon other business of his own.

The chauffeur testified that at the time of the accident he was proceeding contrary to the defendant’s instructions, to visit his mother who was living in the gardener’s house on an estate some distance away and the automobile was turned in the direction of this estate and away from the road to the defendant’s home. The defendant testified that he had not directed or by silence consented to such visit. If the chauffeur’s story is true it completely rebuts inference or presumption that the chauffeur was acting for the defendant which arises from the defendant’s ownership of the car and his hiring of the chauffeur who operated it. The trial court has held that the jury could not reasonably disregard this testimony — that although it was given by interested parties, its truth may not reasonably be challenged. It would serve no useful purpose to set forth the chauffeur’s testimony in detail; certainly a jury might reasonably credit its truth after weighing all probabilities, yet we find that it would not be bound to do so. Doubt of its verity might reasonably be based on some of its content and the jury rather than the court should have passed upon its truth.

The judgment in each case should be reversed and a new trial granted, with costs to abide the event.

Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur; Hiscock, Ch. J., not voting.

Judgments reversed, etc.


author: Crane, J.

text:
    The Dwelle-Kaiser Company, Respondent, v. Ætna Casualty and Surety Company, Appellant.
    Pleading — contract — insolvency of contractor engaged in building public school — completion of work by surety company which took assignment of all moneys due or to become due on contract — performance of subcontract by plaintiff in ignorance of insolvency of contractor — action against surety company to recover contract price — complaint dismissed as not stating cause of action.
    1. A complaint does not state facts sufficient to constitute a cause of action which merely alleges that defendant, the surety upon the bond of a contractor engaged in the construction of a school house, knowing that said contractor was insolvent, took from it an assignment of all moneys due or to become due on the contract and placing its representatives in charge of the business completed the work, in the course of which it caused the contractor to direct the plaintiff to furnish the glass and glazing for the school in accordance with a subcontract previously entered into between the contractor and plaintiff, and that plaintiff in ignorance of the contractor’s insolvency, that its business was being conducted by defendant and that the amount unpaid by the city would be insufficient to pay for the completion of the work, furnished the material and performed the work required by its subcontract; that upon completion of the work the defendant received from the city all sums due upon said contract which it applied in payment of moneys it had advanced to complete the work and that the acts of the defendant were done with the intent of causing the contract to be completed without payment to plaintiff for its labor and materials and to save itself harmless from the obligation of its bond.
    2. The plaintiff was under contract with the contractor to furnish the glass for the school house and was not relieved by the latter’s insolvency from -the duty of furnishing the labor and materials contracted for. If by the terms of the subcontract credit were to be given, plaintiff could, upon learning of the insolvency, have demanded cash payment, or it might have protected itself by filing a lien as prescribed by section 5 of the Lien Law, but the defendant was under no duty to keep the plaintiff informed of the financial condition of the contractor or of the status of the work in payments. Neither was it guilty of any wrongdoing or of any overreaching in protecting itself from loss instead of protecting subcontractors so long as there was no deception, false representation, or misleading conduct.

      Dwelle-Kaiser Co. v. Mtna Casualty & Surety Co., 211 App. Div. 369, reversed.
    (Argued December 16, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 2, 1925, which reversed an order of Special Term granting a motion by defendant for judgment on the pleadings and denied said motion.

      Edward L. Robertson for appellant.
    The complaint was properly dismissed as it did not state facts sufficient to constitute a cause of action. (People’s Bank v. Bogart, 81 N. Y. 101; Brackett v. Griswold, 112 N. Y. 454; Reis v. Port, 162 App. Div. 461; Conkling v. Weatherwax, 181 N. Y. 258; Posuer v. Rosenberg, 149 App. Div. 272; Dickison v. Tysen, 125 App. Div. 740; Lent v. N. Y. & M. R. R. Co., 130 N. Y. 504.)

      W. C. Carroll for respondent.
    The decision and judgment of Special Term dismissing the complaint were properly reversed by the Appellate Division. (Hanna v. Florence Iron Co., 222 N. Y. 290; Pardee v. Kanady, 100 N. Y. 121.)
   Crane, J.

The Appellate Division has certified to us the question, “ Does the complaint herein state facts sufficient to constitute a cause of action?

The Schaeffer Construction Company had a contract with the city of Syracuse to build a public school. The Maryland Casualty Company furnished a bond to the city of Syracuse, or became the surety upon a bond to the city of Syracuse conditioned that the Schaeffer Construction Company would perform its contract. We will not mention the Maryland Casualty Company again, as its place was taken, so far as this complaint is concerned, by the defendant, the ¿Etna Casualty and Surety Company. The Dwelle-Kaiser Company had a sub-contract from the Schaeffer Construction Company to furnish the glass and glazing for the school house.

Out of these relations has grown the plaintiff’s cause of action set forth in substance as follows:

The Schaeffer Construction Company in the performance of its work on the Syracuse school house became insolvent; and the money coming from the city of Syracuse was insufficient to pay for the completion of the work. The ¿Etna Casualty and Surety Company knew of this condition and procured from the Schaeffer Construction Company an assignment of all moneys due or to become due from the city of Syracuse on the contract. The complaint further alleges that the Schaeffer Construction Company continued the work and completed the schoolhouse after the defendant, the surety company, had taken charge of the construction company, by placing its representatives in charge of the business and as directors of the company. The Schaeffer Construction Company ordered and directed the plaintiff to furnish the glass and glazing for the school, according to its contract. The complaint alleges that the defendant did this ordering or directing through the Schaeffer Construction Company, and that at the time, to wit, the fifth day of February, 1921, the plaintiff was ignorant of three things: one, of the Schaeffer Construction Company’s insolvency; two, that the amount unpaid by the city of Syracuse would be insufficient to pay for the completion of the work; three, of the fact that the Schaeffer Construction Company’s business was being conducted by the defendant. A further allegation states that upon the completion of the contract the defendant, surety company, received the money from the city of Syracuse to repay it for the moneys which it had advanced to complete the contract. Finally, the plaintiff alleges that the acts of the defendant were with the intent and purpose of causing the contract to build the school house to be completed without payment to this plaintiff for the glass work and to save itself harmless from its obligation on the bond. The damage claimed is the contract price of the glass work.

In this brief statement of the important parts of the complaint it will be noted that the plaintiff relies entirely upon its ignorance, static ignorance, not induced ignorance, that is, it relies on no act performed or omitted by reason of false representations made by the defendant. The complaint of the plaintiff is, that the surety company protected itself for moneys to be advanced by it to complete the contract by taking an assignment of the moneys to become due from the city of Syracuse, instead of warning the plaintiff that the construction company had become insolvent.

The Dwelle-Kaiser Company was under contract With the Schaeffer Company to furnish the glass for the school house. The /Etna Casualty and Surety Company was under no duty to keep the plaintiff informed of the financial condition of the contractor or of the status of the work in payments. Neither was the bonding company guilty of any wrongdoing or of any overreaching in protecting itself from loss instead of protecting subcontractors so long as there was no deception, false representation, or misleading conduct.

The Lien Law (Chap. 38 of the Laws of 1909 [Cons. Laws, ch. 33]), as amended, gave to this sub-contractor for the glass work a hen for the value or agreed price of its work or materials upon the moneys of the city of Syracuse applicable to the construction of the school house, to the extent of the amount due the contractor on a contract upon filing a notice of lien as prescribed in the article (Sect. 5). As against this lien, the assignment to the .Etna Casualty and Surety Company by the Schaeffer Construction Company would be unavailable. Section 16 of the Lien Law provides that no assignment of any money to become due on such a public contract shall be valid unless it be filed within ten days with the head of the department having charge of the construction and with the financial officer of the city charged with the custody and disbursement of the corporate funds applicable to the improvement. The plaintiff, therefore, had its remedy and protection afforded by law. There is no allegation or even implication that it was misled into neglecting to file a lien by reason of anything done by the surety company. Neither the assignment to the surety company nor the insolvency of the contracting company in any way influenced the plaintiff, as the complaint alleges complete ignorance of these matters. The gist of the entire cause.set up in the complaint is that the plaintiff went ahead with its contract thinking the construction company was solvent when it was not, and that the surety company was guilty of wrongdoing in taking an assignment to protect itself without informing the plaintiff of the insolvency of the construction company.

The position of the surety company in this respect is no different than that of the Schaeffer Construction Company. What were the relative duties of the contractor and its sub-contractor in case of insolvency? There was no duty upon the part of the contractor to reveal its insolvency, as that fact would not have relieved the sub-contractor from performing its contract. The terms of the sub-contract are not alleged in the complaint, but if credit were to be given to the contractor for the glass Work, the sub-contractor, upon learning of the insolvency could have demanded cash payment. It did not relieve the sub-contractor, however, from the duty of furnishing the material and labor contracted for. There is no allegation, in the complaint that the plaintiff demanded cash or was deceived by anything that the parties did into waiving this right. The allegations amount to this:

The plaintiff performed its contract and furnished the glass work relying upon the solvency of the Schaeffer Construction Company. Later it found out that the company was insolvent and that the surety company had finished the Work through its agents and had taken an assignment of the moneys from the city of Syracuse on the contract to reimburse it for advances made. It is alleged that the insurance company took the assignment and finished the work with intent to get the plaintiff’s property without paying for it. What the surety company did, it had a right to do, and what the plaintiff did it was already under obligation and contract to do.

This is not a case where a person purchases goods from another being at the time insolvent and with the present intent not to pay for them. (Hotchkin v. T. N. Bank, 127 N. Y. 329, p. 338.) The glass work was not obtained by the surety company; it was furnished by the plaintiff under pre-existing contract. Insolvency and intent could not affect its obligation except to the extent of permitting it to demand cash payment for materials furnished.

In Pardee v. Kanady (100 N. Y. 121, at p. 126) this court said: The mere insolvency of one of the parties to a contract of sale is not equivalent either to a rescission or a breach. It simply relieves the vendor from his agreement to give credit, and payment may be substituted.” And in Hanna v. Florence Iron Co. (222 N. Y. 290, at p. 295) this court again held: “ Mere insolvency of one of the parties to a contract does not relieve the other party from performance thereof and would not excuse the refusal of defendant to carry out its contract.” The effect of insolvency was also stated in Morris v. Talcott (96 N. Y. 100, 107) in these words: It is well settled in this state that an intent to defraud cannot be imputed to a party who contracts a debt knowing that he is insolvent, merely from the fact of his insolvency, and his omission upon a purchase of property upon credit to disclose such condition to his vendor.”

The analysis of the complaint in the light of these authorities renders it necessary for us to answer the question of the Appellate Division in the negative. The order of the Appellate Division should, therefore, be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin Andrews and Lehman, JJ., concur.

Ordered accordingly.


text:
    Millie Metzroth, as Administratrix of the Estate of Charles P. Metzroth, Deceased, Appellant, v. City of New York et al., Respondents, Impleaded with Others.
    Negligence — municipal corporations — New York city — streets — city charged with duty of keeping streets in reasonably safe condition — employees of building department, in interfering with streets, are servants and agents of city— death of pedestrian through collapse of shed over sidewalk — improper storage of building material thereon ■— actual and constructive notice to city — dismissal of complaint as against city improper — dismissal of complaint proper as to owner where possession had passed to lessee and it had nothing to do with work.
    1. A city is charged with the duty either to close or keep and maintain its streets and highways in a reasonably safe condition for the use of the public, safe from dangers below or above. In so far as the employees of the building department interfere with the streets and highways, they are the servants and agents of the city, by and through whom it may have notice of conditions or be liable for nuisances created.
    2. In an action to recover for the death of plaintiff’s intestate occasioned by the collapse of a shed built over a sidewalk, open and in use by pedestrians, evidence that the city permitted the erection of the shed to protect pedestrians from falling material from a building in course of demolition; that the shed was insufficient for the purpose of storing material upon it but that, nevertheless, tons of brick had been piled upon it for months, and for two weeks before its collapse heavy steel girders; that the architect had warned the contractors to remove the material, which could be seen from the street, and that during the time agents of the city, whose duty it was to inspect, had been upon the building, is sufficient to show both actual and constructive notice to the city of the improper use being made of the shed and of the danger to pedestrians arising therefrom. A dismissal of the complaint as against the city was, therefore, error.
    3. The complaint was properly dismissed as to the owner of the building where possession thereof had passed to its lessee and it had nothing to do with the work being carried on.

      Metzroth v. City of New York, 212 App. Div. 253, modified.
    (Argued December 17, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 25, 1925, unanimously affirming a judgment in favor of defendants, respondents, entered upon a dismissal of the complaint, as to them, by the court at a Trial Term.

      Edward L. Blackman for appellant.
    The city is liable for the negligence of the superintendent of buildings and his subordinates with respect to their supervision over structures upon the streets of the city of New York. (Mayor, etc., v. Furze, 3 Hill, 612; Conrad v. Village of Ithaca, 16 N. Y. 158; Hines v. City of Lockport, 50 N. Y. 236; Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459; Henry v. City of Saratoga Springs, 171 App. Div. 827: Pittman v. City of New York, 141 App. Div. 670; Scott v. Village of Saratoga Springs, 199 N. Y. 178.) The dismissal of the complaint upon the opening as against the Garfield National Bank was error. (Hoffman House v. Foote, 172 N. Y. 348.)

      George P. Nicholson, Corporation Counsel {John F. O’Brien and Henry J. Shields of counsel), for City of-New York, respondent.
    The city is not liable on account of the issue of the permit, which was required by law to be issued, nor on account of the manner in which the shed was constructed. (Masterson v. Village of Mt. Vernon, 58 N. Y. 391; Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Crowley v. Rochester Fireworks Co., 183 N. Y. 353; Smyth v. City of New York, 203 N. Y. 106, 110; Lyman v. Village of Potsdam, 228 N. Y. 398; Agramonte v. City of Mt. Vernon, 112 App. Div. 291; Buckley v. City of New York, 135 App. Div. 512; McNamara v. City of New York, 144 App. Div. 504; Von Lengerke v. City of New York, 150 App. Div. 98; 211 N. Y. 558.) There is no evidence that the city had notice, even of an implied or constructive character, of such a distribution of weight on the shed as would appear improper to a reasonable person. Plaintiff’s witnesses agree that the shed seemed safe. (Orsen v. City of New York, 193 N. Y. 537; Schmidt v. City of New York, 179 App. Div. 667; 228 N. Y. 573.) The bureau of buildings had exclusive jurisdiction over this shed. The superintendent of buildings and the employees of the bureau of buildings exercise governmental functions and are not such agents of the city as render it liable for their errors of judgment or even for their negligence. (Connors v. Mayor, 11 Hun, 439; Fire Dept. v. Atlas S. S. Co., 106 N. Y. 566; Stubley v. Allison R. Co., 124 App. Div. 162; McGuinness v. Allison R. Co., 46 Misc. Rep. 8; 111 App. Div. 926; Smyth v. City of New York, 203 N. Y. 106; Carpenter v. City of New York, 115 App. Div. 552; Murphy v. City of New York, 128 App. Div. 463.)

      David C. George for Garfield National Bank, respondent.
    The dismissal of the complaint as to the Garfield Bank was right and was fully warranted by the facts subsequently developed. (Clancy v. Byrne, 56 N. Y. 129; Wolf v. Kilpatrick, 101 N. Y. 146; Trustees of Canandaigua v. Foster, 156 N. Y. 354.) A landlord out of possession, who has leased his premises in their entirety, is liable neither for the negligence of the tenant nor for a nuisance created or maintained by the tenant. (Clancy v. Byrne, 56 N. Y. 129; Swords v. Edgar, 59 N. Y. 28; Ryan v. Wilson, 87 N. Y. 471; Edwards v. N. Y. & H. R. Co., 98 N. Y. 245; Wolf v. Kilpatrick, 101 N. Y. 146; Ahern v. Steele, 115 N. Y. 203; Martin v. Pettit, 117 N. Y. 118; Trustees of Canandaigua v. Foster, 156 N. Y. 354; Babbage v. Powers, 7 N. Y. Supp. 306; 130 N. Y. 281; Black v. Maitland, 11 App. Div. 188; Curran v. Flammer, 49 App. Div. 293; Jones v. Brumme, 120 App. Div. 495.)
   Crane, J.

On March 24, 1920, about five o’clock in the afternoon, Charles P. Metzroth was walking on Forty-ninth street near Seventh avenue, assuming, of course, that the street was perfectly safe, as it was open and in use by pedestrians. While he was thus passing along the sidewalk, five tons of brick and steel girders fell upon him, crushing and killing him. An overhead shed, upon which these materials had been stored, collapsed and gave way with this disastrous result.

That the overhead shed was insufficient is self-evident. That the inspectors of the city, charged with a duty toward the public regarding these matters were unable to discover the danger is the present claim of the corporation counsel in this action which has been brought to recover for the death of Metzroth.

That the city is charged with the duty to keep and maintain its streets and highways in a reasonably safe condition for the use of the public is so well established that there is no attempt here to question the statement. This duty the city itself cannot shift to other persons. (Bieling v. City of Brooklyn, 120 N. Y. 98.) Unless the Legislature has seen fit to relieve or limit this responsibility the duty remains and must be performed. It has not been shifted to the building department as such. (Ehrgott v. Mayor, etc., of City of N. Y., 96 N. Y. 264; Scott v. Village of Saratoga Springs, 199 N. Y. 178; Henry v. City of Saratoga Springs, 171 App. Div. 827; Hines v. City of Lockport, 50 N. Y. 236; Lockwood v. Hover, 73 N. H. 209; Niven v. City of Rochester, 76 N. Y. 619; Kleopfert v. Minneapolis, 93 Minn. 118.)

The corporation counsel now urges that even though the city is responsible for the safety of the streets and highways, yet as the building department, a branch of the city government, has control of the erection of buildings in the exercise of the police power of the State, it also has control of a shed over a sidewalk put up to protect pedestrians from falling material during the course of such erection. The shed coming within the building regulations based on police power, the city has no duty to keep it safe for travelers on the highway. The function of supervision is governmental, not administrative. In other words, although the city may be liable for a defective bridge substituted for a sidewalk over which people walk (Parks v. City of New York, 111 App. Div. 836; affd., 187 N. Y. 555), it cannot be liable for a defective shed under which they walk. There can be no such distinction, as none exists in fact or in principle. The city can close a street if there be any question regarding its safety or condition for use. When it leaves a sidewalk open to the public, people have a right to assume that the city has fulfilled its legal obligations, and that the place is reasonably safe to walk upon, safe from dangers below or above. Whatever may be the nature of the duties of the building department regarding buildings, in so far as the employees of that department interfere with the streets and highways, they are the servants and agents of the city, by and through whom it may have notice of conditions or be liable for nuisances created. (See above cases.)

These principles become more apparent when applied to the facts of this case. This is not a case of nuisance, but of negligence. The shed which was erected may have been proper to protect pedestrians from falling material (I do not say that it was), and it may have been insufficient for the purpose of storing material on the top of it. If it were sufficient for any purpose, but improperly used, the city would not be liable until it had notice, either actual or constructive, of the danger arising from such improper use. The evidence in this case is sufficient to show in my judgment both actual and constructive notice to the city of the improper use being made of the shed, and of the danger to pedestrians arising therefrom. The dismissal of the complaint as against the city was, therefore, error. Let me state the facts more in detail.

The Garfield National Bank was the owner of premises at the northwest corner of Seventh avenue and Forty-ninth street which it had leased to a corporation known as “ 742 Seventh Avenue Corporation.” The building on the premises was to be torn down, and a new building erected. Tearing down the building would cause danger from falling material to people passing in the street. Such condition was recognized and provided for in the building code and in the charter of the city of New York. The parties complied with these provisions and procured from the borough president and the highway department a permit to erect the shed over Forty-ninth street.

The provisions of law applicable are the following: Section 191 of the building code reads: “Whenever any building or part thereof, within ten feet of the building fine, is to be erected or raised to exceed forty feet in height, or whenever such a building more than forty feet in height is to be demolished, the owner or the person doing or causing such work to be done shall erect and maintain during such work a substantial shed over the sidewalk in front of said building and extending, so far as practicable, from building line to curb. * * * Such shed shall remain in place until the building is enclosed, or, in case of demolition, until the building has been reduced to twenty feet in height. Every such shed shall be kept properly lighted at night.” Section 50 of the charter of the city of New York provides that the board of aldermen shall have power to regulate the use of streets and sidewalks by foot passengers, but shall not have the power to authorize the placing or continuing of any encroachments or obstructions upon any street or sidewalk except the temporary occupation thereof during the erection or repairing of a building on a lot opposite the same. By section 383 of the charter the president of the borough is given the right to issue permits to builders and others to use or open the streets. The bureau of buildings, by title II of the charter, is made a part of the office of the «borough president, and in Manhattan the borough president may appoint a superintendent of buildings for that borough. Other provisions of this title specify the duties of the superintendent of buildings and of his department.

Pursuant to these provisions, the president of the borough of Manhattan, bureau of highways, issued a temporary roof and shed permit “To Erect and Maintain a Temporary Roof or Shed, 100 feet long, over the sidewalk in front of the building and premises at N. W. Cor. 7th Ave. & 49th St. upon the following conditions:

“1. The portion of the sidewalk to be covered shall include all of that between the building line and the curb. * * *

“ 4. The construction of the roof or shed shall be of sufficient firmness and strength to withstand the weight of all material placed or falling thereon, and the holder of this Permit assumes all liability for loss or damage to persons or property that may occur through faulty construction or neglect to comply with this provision.

“ This Permit is issued subject to the strict observance of all laws, ordinances and regulations enacted for the protection of the City so far as they may apply.

' “ M. F. LOUGHMAN,

President of the Borough.”

The use of the word “ substantial ” in the ordinance and the word “ sufficient ” in the permit is of course relative to the use which is to be made of the shed. They mean nothing unless the city and its officials know what use is to be made of the structure. Section 200 of the Building Code requires all old material to be lowered to the ground immediately upon displacement.”

The shed was erected by the builders and their subcontractors, and was apparently sufficient to protect persons from falling material. There is evidence both ways upon this point. There is some testimony to show that the shed as erected was insufficient even for this purpose, and not in accordance with the plans and orders of the building department. That it was insufficient for carrying building material was fully established by the testimony; at least there is evidence from which a jury could find that such was the fact. Beginning with January up to the day of the collapse, three to four thousand brick, amounting to about five tons, were piled upon that portion of the shed which broke, and heavy steel girders, a few weeks before the collapse were also placed there, adding to the weight. In the meantime, people all unmindful of the danger, and relying upon the inspection of inspectors who did not inspect, were passing on their way underneath this load. On the 24th of March, 1920, this portion of the structure with its weight fell upon Charles P. Metzroth, killing him.

Rudolph P. Miller, the superintendent of buildings for the borough of Manhattan, testified that the permit was not issued for the purpose of carrying material upon the shed, and that it was altogether insufficient for the weight placed upon it. Was the city ignorant of this condition? Building inspectors visited this building and this portion of the sidewalk covered by this shed and must have seen and known of its use for storing brick and building material. The shed was only seven or eight feet above the sidewalk, with a fence along its edge, made out of old doors placed lengthwise. The brick were piled up above these doors, or fence, so as to be seen from the street. The condition had existed for weeks and months, during which time building inspectors were on the job. They were agents of the city, regarding this obstruction in the street and highway. Notice to them was notice to the city of any defective or dangerous condition making it unsafe for public travel. Even if they did not have actual notice of these conditions, the city is to be charged with constructive notice under the circumstances due to the lapse of time. Inspectors are supposed to inspect, and it is not sufficient answer to say that they did not see what any reasonable person could have seen in going upon or near the shed. Inspectors do not inspect from the building department offices or from the street; they go in and upon buildings, or at least are supposed to do so. What they should have seen and in the exercise of reasonable diligence could have seen, the city is charged with seeing. The charter (§ 406) requires them to enforce the building ordinance about removal of buildings. Thus, if this shed, inappropriate for carrying material, had stored upon it tons of brick, making it unsafe for pedestrians, and this condition had existed for months, during which time building inspectors were at the place, the city may be charged with notice of such user and condition. There is evidence here from which a jury might find both actual and constructive notice.

It may be well, however, to refer somewhat more in detail to the evidence, as we are passing upon the question whether or not there was any evidence to take this case to the jury.

Otto Stautt, the architect and superintendent of structure, had made a complaint to Mr. Gold, an officer of the “ 742 Seventh Ave. Corporation,” about the bricks being deposited on the shed, and Mr. Gold stated that they would be removed. What an architect could see was improper, surely a building inspector could find out. He also says that there were three to four thousand brick piled in the place where the shed collapsed and that the steel girders were also on the shed for about two weeks prior to March twenty-fourth, together with planks, mortar boxes, tools and implements of the bricklayers. His order to Gold to remove the bricks was given a month before the accident. The bricks had been on the shed for several months, weighing from four and a half to five tons. This witness also saw the building inspector making notes. Otto Stautt also swears that the ordinary use for an overhead structure of this type was simply for the protection of pedestrians from falling bricks and debris. To quote him, we have this question and answer: “ Q. When you said you considered that bridge a substantial bridge, for what purpose do you mean it was substantial? A. Substantial for the protection of pedestrians that it was intended for. Q. You understood that that bridge Was erected to prevent materials from falling from the building and striking pedestrians on the head, as they walked along the street? A. Yes, sir.”

In this the architect is supported by Rudolph P. Miller, the superintendent of buildings for the borough of Manhattan, who testified: “ The department does not object to the storing of material on the shed, provided the shed is constructed with that end in view, as well as serving its purpose as a sidewalk shed. ’ ’ Again he swore regarding this shed in question: Well, we only recognized the shed as a sidewalk shed built for the protection of pedestrians, and passed as that kind of a shed; and what I saw of that shed remaining when I made my inspection of the rest of it, was of the same construction, and there had been no change in it. I am of the opinion that it was a substantial shed, and served the purpose that the law intends. * * * Sufficient to protect pedestrians who may have to use the sidewalk, against the falling material that is liable to come down occasionally from buildings in course of construction.” That the building inspectors were on the job is testified to by Elias J. Lyon, an officer of one of the defendants, the Greenwich Associates, who testified that he saw Mr. Shields, the city inspector, at the place several times while the brick was on the bridge; that he made remarks to the inspectors and made appointments with them.

But the inspectors did not have to go into the building to see that material was being piled upon the shed. The witness Charles Hartman, who did business in the neighborhood, testified, “You could see the brick, the red brick, above the partition that was holding the brick from falling in the gutter, above that.”

Taking, therefore, this evidence most favorable to the plaintiff, we find that the city permitted the erection of a shed to protect pedestrians from falling material while the building was in the course of demolition. The shed was not erected for the purpose of storing material upon it. It was insufficient for that purpose. The architect knew this, and had warned the contractors to take the material off. The building superintendent examining the structure after its collapse says that it was not erected for the purpose of storing material. Tons of brick had been piled upon the shed for months, and two weeks before its collapse, heavy steel girders. During this time agents of the city, employees whose duty it is to look about and see things, had been upon the building. They must have seen what everybody else apparently knew, that this weight was being placed on a frame structure over the heads of multitudes of people passing beneath.

Faced with this evidence, and its duty under the law to either close streets or else to keep them reasonably safe for public travel, can the city claim that there was no evidence of its dereliction in this particular? I think not.

The complaint was dismissed as to the Garfield National Bank, the owner, and properly so; possession of the property had passed to its lessee. It had nothing to do with the work here spoken of. This judgment should be affirmed, with costs.

The plaintiff apparently has also appealed from the judgment in favor of Jacob Volk and the Jacob Volk House Wrecking Company. This judgment was entered upon a verdict for these defendants. We do not find this appeal seriously pressed, and little or no reference made to it in the briefs. A verdict on conflicting evidence raises a question of fact which we cannot disturb. This judgment should, therefore, be affirmed, with costs.

The dismissal of the complaint on motion of the city, at the end of the plaintiff’s case was unjustified, by reason of what I have here stated; and the judgment in its favor, affirmed by the Appellate Division, should be reversed and a new trial granted, costs to abide the event.

His cock, Ch. J., Cardozo, Pound, McLaughlin, Andrews and Lehman, JJ., concur.

Judgment accordingly.


author: Hiscock, Ch. J.

text:
    The People of the State of New York, Respondent, v. Stanley Klvana, Appellant.
    Crimes — murder in first degree — evidence.— appeal — duty of Court of Appeals to carefully scrutinize and analyze the evidence — insufficiency of evidence to establish connection with crime — identity of defendant as one of three men — testimony of witness clouded by more or less doubt and uncertainty insufficient as base for conviction of murder in first degree — evidence tending to exculpate defendant, though presenting only ordinary question of fact, of some weight on appeal where case for the prosecution is weak.
    1. Upon appeal from a judgment convicting defendant of the crime of murder in the first degree, as a party to a plot to rob a bank, in the course of which robbery a person was killed, it is the duty of the Court of Appeals to carefully scrutinize and analyze the evidence presented for the purpose of determining whether it warranted the jury in finding that beyond a reasonable doubt defendant was a party to the plot which resulted in the murder.
    2. Evidence that defendant was actively engaged in the purchase of the automobile which subsequently became the means of conveyance of the murderers to the bank and of their escape therefrom, while providing a significant introduction and basis for other evidence connecting him with the crime, is not sufficient, by itself, to establish such connection where there is no evidence to identify or connect him with the murder from the time of such purchase until after the commission of the crime five days later.
    3. Where defendant’s connection with the murder turns upon the question whether he was one of three men who alighted from an automobile and the only real evidence as to his identity, in the last analysis, is an asserted similarity of his eyes to those of a man whom the witness momentarily saw looking at her through a window when she had no occasion to exercise a complete and careful scrutiny, and where, upon a reading of her entire testimony, it seems that the witness, acting upon a small foundation, has rather reasoned herself into the belief that defendant is the man whom she saw and that her attempted identification is the result of a conclusion thus developed and clouded by more or less doubt and uncertainty rather than an identification based upon reliable and decisive observations carried by a definite recollection to a conclusion whose correctness admits of no reasonable doubt, the conviction ought not to stand. And this is especially so where there was considerable evidence on the trial tending to exculpate defendant from participation in the crime, which, though presenting only an ordinary question of fact for the jury, strengthens the feeling of finwiilingness to permit weak testimony bn the part of the People to become the basis for the conviction of defendant.
    (Argued December 7, 1925;
    decided January 12, 1926.)
    Appeal from a judgment of the Nassau County Court, rendered February 24, 1925, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Joseph Lonardo and Anthony J. Argondizza for appellant.
    The evidence fails not only to establish the existence of any plan or scheme or confederacy to rob the bank, but is utterly deficient in connecting the defendant as an aider and abettor in the commission of the crime, either by actual or constructive presence. (People v.
      Seppi, 221 N. Y. 62; People v. De Paulo, 235 N. Y. 39; People v. Miles, 123 App. Div. 862; People v. Kane, 80 Hun, 322; People v. Dunbar Contr. Co., 165 App. Div. 59; 215 N. Y. 16; People v. Peckens, 153 N. Y. 576; Kelley v. People, 55 N. Y. 565; People v. Becker, 215 N. Y. 126; Com. v. Knapp, 9 Pick. 495; People v. Bliven, 112 N. Y. 79.)

      Charles R. Weeks, District Attorney (Charles I. Wood of counsel), for respondent.
    The conspiracy is properly, and indeed of necessity, provable by circumstantial evidence. The conspiracy itself may be inferred from proof of different acts and circumstances, of isolated acts of the conspirators, and of conduct which discloses a common design and concert of action. (People v. McKane, 80 Hun, 322; 143 N. Y. 455; People v. Duffy, 160 App. Div. 385; 212 N. Y. 57; People v. Sweeney, 213 N. Y. 37; People v. Miles, 123 App. Div. 862; 192 N. Y. 541; People v. Mather, 4 Wend. 229; People v. Arnstein, 157 App. Div. 766; People v. Everest, 51 Hun, 19; People v. Brickner, 8 N. Y. Cr. 217; People v. Rose, 101 Misc. Rep. 650; Kelley v. People, 55 N. Y. 565; People v. Van Tassel, 156 N. Y. 541; People v. Peckens, 153 N. Y. 576; People v. Dunbar Co., 165 App. Div. 59; 215 N. Y. 16; People v. Suffolk Co., 171 App. Div. 645.)
   Hiscock, Ch. J.

This defendant has been convicted of murder in the first degree on the theory that he was one of several men who formed a plot to rob a bank and that in the course of this robbery a person was killed, and wherefrom followed defendant’s responsibility for the homicide even though he did not directly participate in. it. The case has been tried twice, there having been a disagreement of the jury on a former trial. It is a companion one of People v. Ross (240 N. Y. 692) and People v. Slattery (241 N. Y. 573), in each of which a judgment convicting the defendant of murder in the first degree has been affirmed by this court.

The outstanding facts which the prosecution claims to have sufficiently established, and upon which it rested its claims of defendant’s guilt, are as follows:

One Slattery was the proprietor of a saloon on Long Island which was undoubtedly a headquarters for criminal activities of certain kinds and Klvana was his bartender. March 31, 1924, Klvana was the active participator in the criminal purchase of a stolen Buick car. April fourth, two or more men entered a bank at Bellmore, Long Island, for the purpose of robbing it and as they were making their escape from the bank they shot down in cold blood and killed an outsider who was entering the bank. Some or all of the murderers then fled in a Buick car and it is undisputed that the Buick car which these criminals used in going to and escaping from the scene of their crime was the same stolen car which this defendant had taken part in purchasing four days before. After the men had fled several miles from the bank the car broke down and was abandoned and at or before the time when this happened it was met by a Hudson car and a transfer of two or three men made from the Buick car to the latter. A few minutes later a Hudson car broke down by the home of some people named Bergold and there alighted from the car three men of whom Slattery was concededly one and Klvana, it is claimed by the People, was another.

On the introduction furnished by this record the defendant emerges into our view from a situation occupied by criminals and organized for criminal activities. As he thus appears there is nothing which predisposes one to any misplaced sympathy for him or conveys any idea that he would be deterred by any law-abiding disposition from engaging in any crime which promised abundant booty and small risks. But of course he is entitled to our painstaking scrutiny and analysis of the evidence presented to us for the purpose of determining whether it warranted the jury in finding that beyond a reasonable doubt he was a party to the plot which resulted in the murder of which his associates and friends have been convicted. We are aided in this analysis by the perfectly fair attitude of the district attorney who, with a commendable conception of his duties, presents this case to us neither attempting to exaggerate its strong points nor trying to obscure its weaknesses.

The question which is thus presented to us must be very largely decided by the weight which may fairly be given to the evidence of two groups of witnesses. The first group gave the evidence tending to show that this defendant actively engaged in the purchase of the stolen Buick car which subsequently became the means of conveyance of the murderers to the bank and of their escape therefrom. We have not the slightest doubt that the evidence of these witnesses amply justified the jury in finding such criminal connection of this defendant with that transaction. But under the circumstances of this case that is not enough to sustain his conviction. There might be as the result of close succession in time or other incidents such a connection between the criminal purchase of a car and its use in the commission of a crime that a jury would be justified in saying that the one who helped to provide the instrument should be charged with responsibility for the crime in the commission of which it was subsequently used. That, however, is not this case. While the purchase of this car provides a significant introduction and basis for other evidence connecting this defendant with the crime it is not sufficient by itself to establish such connection.

There is no testimony which is claimed to identify or connect this defendant with the commission of the crime from March thirty-first until April fourth, when we come to the evidence given by the second group of witnesses in reference to the transfer of men from the murder car to a Hudson car and the subsequent appearance of a Hudson car at the Bergold farm with the attempt to identify defendant as one of the men who alighted from that car. This evidence if the conviction is to stand must be the critical proof enabling the jury to say beyond a reasonable doubt that defendant was one of the murderers. And in order to accomplish this result it must have enabled the jury to find beyond a reasonable doubt first that the Hudson car which received a transfer of men from the Buick murder car was the same car which subsequently broke down at the Bergold farm, and second, that this defendant was one of the men who there alighted from the car.

' In the case against Slattery for complicity in this same murder a majority of this court concluded that the evidence did warrant the jury in believing that the Hudson car which received the transfer of murderers from the Buick car was Slattery’s car and was the same one which subsequently appeared at the Bergold farm, and I shall make that assumption in this case. When, however, we come to the identity of the men who were in the car at the Bergold farm this case is much weaker than the one against Slattery. In his case there was no question whatever about his identity as the owner of the car and as being present at the farm. In the case against this defendant on the contrary there not only is no concession of his identity as one of the men at that place but under a denial of such identity there is, I think, such a failure of evidence sufficiently identifying him that we ought not to permit him to be executed under the present judgment. The attempted identification is made by Mrs. Bergold and her husband. We think the evidence of the latter may be disregarded as of substantially no probative value. While the witness on his direct examination did identify the defendant as being at his house with Slattery, on cross-examination he modified this statement by saying that he looks like him.” On the whole his evidence is too weak and inconclusive to be seriously regarded. The evidence given by Mrs. Bergold is stronger and the district attorney summarizes it as being to the effect that one of the men who was present with Slattery in all respects resembled the defendant, but not making a positive identification of the defendant because of a change in the color of his face, although on redirect examination and examination by the court the witness did say that the eyes were exactly the same and the build the same except that the face was pale whereas it had been red. While this is as fair a summary as could be given in much condensed form of what the witness did ultimately say in various portions of her testimony, it is impossible properly to weigh her evidence without careful examination of all of it line by line. It is not desirable to incorporate such extended analysis in this opinion and we shall simply give in brief form our conclusions after such consideration of it. The decisive and basic idea of the attempted identification is an alleged similarity in appearance of the eyes of a man whom the witness saw at the farm and of the defendant. It is true at times she does speak of some general similarity in appearance of the two men. But there was nothing in the occasion which prompted any particular scrutiny of the three men as they stopped for the commonplace purpose of telephoning for help in removing a disabled automobile and there is nothing to indicate that the witness bestowed anything approaching conscious and thoughtful observation upon any features or appearance of the man whom defendant is said to resemble except upon his eyes, and that she did that only as he looked through a window at her as she was engaged in her housework. She was given an opportunity at the jail soon after the murder to identify defendant and there as here her attempted identification was based upon an alleged similarity of eyes and made hesitant by a change in complexion of his face from red to white.

Thus in a final analysis the conviction of defendant must basically rest upon the asserted similarity of his eyes to those of a man whom the witness momentarily saw looldng at her through a window when she had no occasion to exercise a complete and careful scrutiny. That is a pretty small basis upon which to rest a conviction and, as we read the testimony of the witness as it proceeds from the friendly atmosphere of direct and redirect examination to the hostile one of cross-examination with its more exacting and insistent questions, it seems to us that she, acting upon a small foundation, has rather reasoned herself, conscientiously we have no doubt, into the belief that defendant is the man whom she saw at the farm and that her attempted identification is the result of a conclusion thus developed and clouded by more or less doubt and uncertainty rather than an identification based upon reliable and decisive observations carried by a definite recollection to a conclusion whose correctness admits of no reasonable doubt. If this is a correct estimate of her testimony the conviction ought not to stand and the man be executed.

In addition to this weakness in the prosecution’s case, there was considerable evidence on this trial which was not presented upon the Slattery trial tending to exculpate this defendant from participation in the crime. Of course if the evidence of the prosecution was sufficiently strong we should not feel controlled by the fact that it was substantially contradicted by evidence given, in behalf of the defendant. That would present an ordinary question of fact for the jury especially when we consider the character of some of the witnesses who gave this testimony. But when there is weakness in the People’s testimony the feeling of unwillingness to allow it to become a basis for the conviction of defendant is somewhat strengthened by the evidence given in his behalf.

We desire to leave no doubt that this case may be clearly distinguished from the cases against Ross and Slattery. In the former case as the court unanimously held there was evidence which amply justified the jury in finding that Ross was one of the men who directly engaged in the robbery of the bank and in the homicide. While the evidence in the case of Slattery did not implicate him in the immediate commission of the crime the evidence against him as being a party to the plot and aiding in the commission of the crime was much stronger than in the present case and may be differentiated in many particulars from the testimony now before us for review.

We think that the judgment of conviction should be reversed and a new trial granted.

Crane, Andrews and Lehman, JJ., concur with His cock, Ch. J.; Cardozo, Pound and McLaughlin, JJ., dissent and vote for affirmance.

Judgment reversed, etc.