author: Conway, J. Loughean, J.

text:
    Carl Osipoff, Appellant, v. City of New York, Respondent, Impleaded with Another.

      Argued April 23, 1941;
    decided July 29, 1941.

      Ralph Stout and Louis Rothbard for appellant.
    It was a question of fact for the jury whether the city employee, when he committed the assault on plaintiff, was acting within the general scope of his employment while engaged in his employer’s business, with a view to the furtherance of the interests of his employer. (Mott v. Consumers’ Ice Co., 73 N. Y. 543; Hewson v. Interurban Street R. Co., 95 App. Div. 112; Magar v. Hammond, 183 N. Y. 387; Higgins v. Watervliet Turnpike Co., 46 N. Y. 23; Jones v. Weigand, 134 App. Div. 644; Baker v. Allen & Arnink Auto Renting Co., 231 N. Y. 543; Buck v. Standard Oil

      Co., 224 App. Div. 299; 249 N. Y. 595; Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129; McLoughlin v. N. Y. Edison Co., 252 N. Y. 202; Encarnacion v. Jamison, 251 N. Y. 218; Doscher v. Superior Fire Proof Sash & Door Co., 221 App. Div. 63; Katz v. Lutz, 176 App. Div. 460; N. Y. C. R. R. Co. v. City of New York, 129 Misc. Rep. 917; 224 App. Div. 733.)

      William C. Chanter, Corporation Counsel (Stanley Buchsbaum and Irving Galt of counsel), for respondent.
    A person who has been assaulted by a municipal employee cannot impose liability on the municipality unless the act was within the scope of the employment. Normally an assault by a laborer or even one in charge of a highway repair group would not be within the scope of his employment; and this is so where the assault is the result of a controversy which has nothing to do with the protection of city property and has no real relation to the work being performed. (Mott v. Consumers’ Ice Co., 73 N. Y. 543; Wright v. Wilcox, 19 Wend. 343; Muller v. Hillenbrand, 227 N. Y. 448; Zucker v. Lannin Realty Co., 217 App. Div. 487; Priest v. Hudson River R. R. Co., 65 N. Y. 589; Trebitsch v. Goelet Leasing Co., 226 App. Div. 567; 252 N. Y. 554; Atlanta Baseball Co. v. Laurence, 38 Ga. App. 497; Plotkin v. Northland Transportation Co., 204 Minn. 422; Rudgeair v. Reading Traction Co., 180 Penn. St. 333; John v. Lococo, 256 Ky. 607; Steinman v. Baltimore Antiseptic Steam Laundry Co., 109 Md. 62; McManus v. Crickett, 1 East, 106.)
   Conway, J.

The plaintiff had a jury verdict. The Appellate Division reversed the judgment entered thereon and dismissed the complaint against the city of New York upon the law but affirmed the judgment as against the individual defendant, who was a municipal employee and the active tort feasor in the occurrence to which reference will later be made. The reversal and dismissal were upon the ground that the municipality was not responsible in damages for the assault by its employee as it was not committed within the scope of his authority. In view of the dismissal we must take the facts in a light most favorable to the plaintiff and, in determining whether the facts proved constitute a cause of action, give him the benefit of every favorable inference which may reasonably be drawn. (Faber v. City of New York, 213 N. Y. 411, 414; Shuman v. Hall, 246 N. Y. 51, 57.) In other words, we must determine whether there is any evidence which presented a question of fact as to whether the employee’s assault was committed within the scope of his employment by the city.

The plaintiff was the owner and lessor of a freshly painted truck, of which he had taken delivery on the day in question. It had canvas-covered racks. Plaintiff, accompanied by his seven-year-old son, drove his truck down a street in Brooklyn, after passing an intersecting avenue at which there were no warning notices or barriers indicating that there were any obstructions to be encountered. Between the avenues he came upon the following situation: there was a parked car, not owned by the city, which blocked the right side of the street; alongside of that there was a city truck; to the left there was a pile of broken asphalt which was being loaded upon the city truck. There remained upon the left, for vehicular traffic, a narrow portion of the street upon which had been newly laid a strip of asphalt, above which there were overhanging branches of trees which were likely to scratch the top and sides of plaintiff’s truck and to rip and tear the canvas upon the racks.

The method of the city in doing the street repair work is of some importance. There were two gangs at work. The first gang, of which the individual defendant, Sisto, was in charge, cut out the asphalt, where repair was needed, and piled it to one side. The second gang then ' laid the asphalt. The first then returned and loaded a city truck with the broken pieces of asphalt and they were carted away. It was more or less a continuous, synchronized method of work performance. As the plaintiff approached, the work of loading the debris was in process.

When the plaintiff, after blowing his horn, was directed to proceed over the newly laid asphalt at the extreme left, he descended from his truck and, after inspection, told Sisto and another employee who had approached, that he could not go under the trees without tearing his canvas and that that would be at his own expense.” Thereupon, the employee with Sisto attempted to enter the truck for the purpose of driving it himself and when plaintiff pushed him away, that employee struck plaintiff with his hand and Sisto struck plaintiff with his shovel, inflicting the serious injuries of which complaint is made.

The court left to the jury the question whether “ the act of the defendant Sisto in striking the plaintiff was committed in connection with and in the course of the work then being performed by the city of New York and with a view to the furtherance of that work ” and instructed the jury that, if it so found, the city was responsible even though the act was wanton, willful and unauthorized by the'Yity. The court further charged that, if the jury found that Sisto’s act was entirely without the scope of his employment, no verdict could be found against the city.

What, then, was the apparent scope of Sisto’s authority due to his employment by the city? Clearly it was to protect his master’s property, to direct the execution of the tasks assigned so that a minimum of time would be consumed and to regulate traffic in and about that portion of the public highway of which he and those under him had taken possession. It will be remembered that there were no detour or warning signs at the intersection of street and avenue which the plaintiff had last passed. Certainly it was within Sisto’s authority to so direct traffic in the area indicated that newly performed work would not be damaged and so that there would be no interference with the men while doing their work. He had authority to direct traffic to the right side of the street, to the middle of it or to the left side. That was exactly what he undertook to do. He was in command of a portion of the public highway which his master was obligated to keep reasonably safe for traffic and upon which the master was obligated to protect the person of the traveler from harm. Sisto was clothed with the power to direct plaintiff to proceed upon the extreme left of the street and to compel by all lawful means a compliance with that direction.

This brings the instant case within the zule laid down in Pollock’s Law of Torts ([14th ed.] pp. 72, 73) as follows: “ Another kind of wrong which may be done by a servant in his master’s business, and so as to make the master hable, is the excessive or erroneous execution of a lawful authority. To establish a right of action against the master in such a case it must be shown both that the servant intended to do on behalf of his master something of a hind which he was in fact authorized to do, and that the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful. Generally a servant has implied authority to do whatever is reasonably necessary to protect the master’s property in emergency, and it is a question of degree whether the force used is excessive.

The master is chargeable only for acts of an authorized class which in the particular instance are wrongful by reason of excess or mistake on the servant’s part. For acts which he has neither authorized in hind nor sanctioned in particular he is not chargeable.” (Italics supplied.)

As to a servant’s authority it was well said in Moore v. Metropolitan R. Co. (8 Q. B. 36, 39), “ where there is a necessity to have a person on the spot to act on an emergency, and to determine whether certain things shall or shall not be done, the fact that there is a person on the spot who is acting as if he had express authority, is prima facie evidence that he had authority.”

Professor Harper in his Law of Torts has discussed the liability of private and municipal corporations for tort in sections 293 and 295. In the former section he says in part:

“ There was a tendency, at one time, tó ignore the realities of what corporations actually do and, in working out the law of corporate liability to predicate results upon what it could ’ and ‘ could not ’ do, as a logical incident of its metaphysical reality. Although faced with the fact that corporations were actually committing torts and crimes in the same way and by the same agencies employed in making contracts, courts could not escape the argument that a creature with no mind or soul could not commit wrongs requiring a specific intent or a definite guilty mind.
“ But the argument based upon the ‘ nature ’ óf the corporation, more quaint, than substantial,’ has been universally repudiated. Corporations commit torts by the same people who effect and consummate their legitimate activities. For the most part, a corporation is liable, as an individual, for tort committed by its servants or agents acting within the scope of their service or agency quite as it is liable on its contracts properly executed and entered into by its agents. Thus, corporations have been held liable for assault and battery, false imprisonment, slander and libel, wrongful death, conversion, negligence, deceit, and various types of harm resulting from its extra-hazardous activities, including nuisance, blasting, and keeping dangerous animals, under the same circumstances that would entail liability on the part of an individual principal. And it may be hable for malicious prosecution and other types of tort requiring malice or an evil intent.”

In section 295, as to the liability of municipal corporations, he writes:

“ * ■ * * The same conflict exists as to liability for negligence of employees and agents engaged in repairing, cleaning or. constructing streets and highways, the more desirable rule holding the city liable therefor. * * *
It has been long recognized that the distinction between governmental and corporate powers and functions is an illusory one, incapable of uniform application, and productive of the most unsatisfactory results. The immunity of the city for torts committed by its officers and servants within the scope of their undertakings is much more the result of archaic notions of the nature ’ of the state and sovereign than of modern social policy, and is therefore, completely inconsistent with modem tendencies in the law. The agencies of government are institutions of society devised to serve the needs of the entire community. There ' must necessarily be loss and expense involved in the functioning of these agencies, and such burdens ought to be borne, of course, by the community served. Loss and damage inflicted in the course of the operation of such institutions ought obviously to be counted in the cost of government and carried by society rather than the unfortunate individual upon whom the loss accidentally happens to fall. The partial immunity of municipal corporations in tort is one of the greatest obstructions to the socialization of tort law. The principle can find no justification in sound' social policy and is one that is productive of great injustice and hardship to individuals with but slight corresponding advantage to society.”

The rule as stated in Pollock’s Law of Torts (supra) is not in conflict with the statement in Muller v. Hillenbrand (227 N. Y. 448, at p. 451). There it was said: “ The janitor, in assaulting the infant plaintiff, was not acting within the actual or apparent scope of his employment. Had the defendant been present he would have had no authority to do what the janitor did and what he could not legally do he could not, in-a legal sense, authorize the janitor to do for him. (Poulton v. L. & S. W. Ry. Co., 1867, L. R. 2 Q. B. 534; Pollock on Law of Torts [10th ed.], 97, 98.) ”

The words used as quoted were properly applicable to the case then decided but have been given, in cases since decided, although not in this court, a wider meaning than is justified by the case or text cited. Professor Pollock referred to the Poulton case in one of the paragraphs under the very subdivision in which he stated the rule quoted supra. He said: “But the master is-not answerable if the servant takes on himself, though in good faith and meaning to further the master’s interest, that which the master has no right to do even if the facts were as the servant thinks them to be: as where a station-master arrested a passenger for refusing to pay for the carriage of a horse, a thing outside the company’s powers.” The Poulton case was then cited as authority. (Pollock, The Law of Torts [10th ed.], 97, 98.)

In that case, which was an action for false imprisonment, Poulton brought back, on defendant’s railway, a horse which had not been sold at an agricultural show. Defendant had agreed to transport such horses, “ on return free, if remaining unsold, on production of certificate to that effect.” The certificate was honored at the station where the horse was entrained. On his arrival at his destination the plaintiff left the train and was taking the horse away along the road, when the station-master sent after him,” and demanded payment for the carriage of the horse. When plaintiff explained the circumstances and refused to .pay, he was detained and taken back to the station. The reason for the decision that the railway was not responsible for the act of the station-master was that the applicable act of Parliament had enacted that where a passenger does not pay his fare, he may be taken into custody, and that where goods are not paid for, they may be detained.” Thus under the statute the railway company had not the power to detain the plaintiff under the circumstances but only the goods, i. e., the horse. There could be no authority implied from the company to the station-master to do that which the company could not do.

It is clear that there was presented here, at the very least, an issue of fact as to whether or not Sisto and his companion, when they approached plaintiff’s truck and attempted to take possession of it, intended to drive over the asphalt strip at the extreme left of the street, even though the truck would be damaged, in order that they might not be compelled to move the city’s truck and thus lose time in doing the repair work. Here the employees of the municipality had taken physical possession of the public highway upon which the plaintiff was properly proceeding. He was obliged to proceed upon a public highway if he were to proceed at all.

That the act was willful does not preclude recovery. In Mott v. Consumers’ Ice Co. (73 N. Y. 543) action was brought to recover for injuries sustained by reason of the fact that the driver of one of defendant’s ice carts, while engaged in his duties, carelessly drove his cart against plaintiff’s carriage, upsetting it and causing the injuries of which complaint was made. On the trial the plaintiff offered in evidence defendant’s answer to the original complaint in which the statement was made that the driver of defendant’s ice cart “ willfully, and not negligently nor carelessly, drove said ice cart against the carriage of the said plaintiff” (p. 544). The plaintiff was nonsuited on the trial and General Term affirmed. On the appeal to this court, we reversed, saying: “ But the answer does not exclude all presumption of liability on the part of the master, and, therefore, did not preclude a recovery by the plaintiff. The act may have been willful,’ and yet committed in the course of the employment, and within the authority of the defendant, and the contrary is not averred, as it should have been, in order fully to defend the action and exclude all presumption of liability. (Citing cases.) It is not made to appear by the answer that the servant committed the act wholly for a purpose of his own, disregarding the object for which he was employed, and not intending by the wrongful act to execute it. It is consistent with the answer that the act was done in the execution of the authority given him, and for the purpose of performing the directions of the defendant. There was clearly no estoppel, and there was evidence taken in connection with the answer, upon which the jury might have found that the act was a negligent, or even a reckless act, in the course of the employment of the servant, and one for which, the defendant was responsible. The answer did not conclude the plaintiff, and the case was one for the jury ” (pp. 550, 551).

The rule as stated in the Mott case was reaffirmed by this court in Muller v. Hillenbrand (supra, p. 451), where it was said: “ The rule of liability of a master for the acts of his servant is tersely stated in Mott v. Consumers’ Ice Co. (73 N. Y. 543, 547). It is that ‘ For the acts of the servant within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master will be responsible, whether the act be done negligently, wantonly, or even wilfully. * * * But if a servant goes outside of bis employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible.’ ” (See, also, Pollock’s Law of Torts [14th ed.], pp. 75, 76; Shea v. Sixth Avenue R. R. Co., 62 N. Y. 180; Higgins v. Watervliet Turnpike & R. R. Co., 46 N. Y. 23; Rounds v. Delaware, L. & W. R. R. Co., 64 N. Y. 129, 133, 134; Girvin v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 289; Hall v. Smathers, 240 N. Y. 486; Doscher v. Superior Fire Proof Door & Sash Co., 221 App. Div. 63; Restatement of the Law of Agency, § 245.)

Under the facts disclosed, there was evidence presented from which a jury could find that the act complained of was within the scope of the actor’s employment, done while engaged in bis master’s business and in “ furtherance of that business and the master’s interests.”

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.

Loughean, J.

(dissenting). Questions put to the plaintiff on his direct examination were answered by him in these words: “ Two fellows motioned to me to come ahead. I got off my truck. I seen that I couldn’t make it; I would rip the cover and scratch the paint off the truck. Two of them come over to me and told me, ‘ What kind are you chauffeur? Afraid to go under them trees? ’ So I told them, If I go under there it will be on my expense — ripping the cover and all that, down.’ One fellow walked over to the truck and grabbed hold of it — my truck. He grabbed hold of the knob of the truck and wanted to get in there and drive it. The fellow who was with Sisto. I pushed him away. That fellow hauled off and he hit me with his hand and then the minute that fellow hit me Sisto took the shovel and bit me over the side of the head.”

On these facts, I think Sisto’s attack upon the plaintiff cannot reasonably be connected with anything but Sisto’s own bad temper. For the sake of the argument, I grant that Sisto and his fellow-workman had undertaken concerted action to conserve the resources of their employer. Even on that large assumption, I think no jury could reasonably find that Sisto’s wholly irrational behavior was within the scope of his employment (See Restatement of Agency, § 229, Comment b; 2 Mechem on The Law of Agency [2d ed.], §§ 1977, 1978.)

I vote to affirm the judgment of the Appellate Division.

Rippey, Lewis and Desmond, JJ., concur with Conway, J.; Lottghran, J., dissents in opinion in which Lehman, Ch. J., and Finch, J., concur.

Judgment accordingly,


source: Caselaw Access Project

author: Conway, J.

license: Public Domain

text:
    Miriam Imbrey, Appellant, v. Prudential Insurance Company of America, Respondent.
    Submitted April 25, 1941;
    decided July 29, 1941.

      Martin M. Kolbrener, Sydney Cutler and Julius Cutler for appellant.
    The evidence required a submission of the question to the jury. (Glen National Bank v. Auto Ins. Co., 249 App. Div. 327; 276 N. Y. 595; Kempe v. Concourse Realty Corp., 237 App. Div. 708; Webber v. Graves, 234 App. Div. 579; McKeon v. Van Slyck, 223 N. Y. 392; McMahon v. Harrison, 6 N. Y. 443; Matter of Kindberg, 207 N. Y. 220; Lee v. City Brewing Corp., 279 N. Y. 380; Piwowarski v. Cornwell, 273 N. Y. 226; Mitchell, Inc., v. Dannemann Hosiery Mills, 258 N. Y. 22; Foreman v. Foreman, 251 N. Y. 237; Commercial Casualty Ins. Co. v. Roman, 269 N. Y. 451; Lee v. City Brewing Corp., 279 N. Y. 380; Sommer v. Guardian Life Ins. Co., 281 N. Y. 508; Commercial Casualty Ins. Co. v. Roman, 269 N. Y. 451.)

      Benjamin Paul Goldman for respondent.
    The evidence as to the last known address of the insured was so clear, convincing and unrefuted as to present no question of fact for the jury. (Hull v. Littauer, 162 N. Y. 569.) The uncontradicted testimony of parties, where there is nothing in the circumstances of the case to warrant disbelief, presents no question of fact for the jury but must be deemed conclusive. This also applies where parties to the transaction are deceased. (Wood v. Wise, 153 App. Div. 223; 208 N. Y. 586.)
   Conway, J.

This is an action by a beneficiary to recover upon a policy of life insurance. The defendant interposed two defenses, only one of which is now material. That defense was that the defendant had duly mailed a timely notice to the last known post office address of the insured advising him of the quarter-annual premium payable on account of his policy of life insurance on November 22,1936, and that unless it should be paid, as in the notice specified, the policy and all premiums thereon would become forfeited and void except as to the non-forfeiture provisions contained in the policy.

The plaintiff made out a prima facie case by establishing the issuance of the policy, the payment of premiums thereon up to and including the one due on August 22, 1936, the death of the insured on June 9, 1937, and the furnishing of proper proof-s of death.. The burden of proving its defense was then upon the defendant. Unless the defense was established by a fair preponderance of the evidence, plaintiff was entitled to judgment in her favor, since a policy of life insurance may not be declared forfeited or lapsed within one year after default in the payment of a premium, in the absence of the mailing of such a notice as is pleaded in the defense. (Insurance Law, former § 92 [Cons. Laws, ch. 28], see now § 151.)

During the trial of the defendant’s case, the parties entered into a stipulation, at the suggestion of the court, by which they agreed to submit to the jury two specific questions, without a concession by defendant, however, that there would be a question of fact to be submitted to the jury at the conclusion of the proof. The first question was whether the pleaded notice had been mailed on or about October 30, 1936, addressed to the insured at a specified address and the second, whether that address was the last known post office address in this State of the insured. The parties further stipulated that after the jury had answered those questions, there should be reserved to the court all other questions at issue, including those involved in the other pleaded defense, with power in the court to take further testimony thereon, and then to direct a verdict upon the whole case, as the attorney for the defendant insisted, even without the presence of the jury.”

It was further stipulated and agreed, as a corollary to the foregoing, that it would be unnecessary for the jury to render a general verdict.

When the taking of testimony was concluded, defendant moved for a direction of a verdict as to each of the two questions about to be submitted but not for the direction of a general verdict. Decision upon those motions was reserved. The jury returned answers to the questions and found that timely notice had been duly mailed but not to the last known post office address of the insured. The court then denied defendant’s motion for a direction of a verdict as to the second question, the motion as to the first having become academic in view of the jury’s answer to it.

The parties then consented and agreed, in view of the answers made by the jury, that the case was closed, notwithstanding the stipulations theretofore made for the further trial by the court without the presence of the jury of other matters reserved by such stipulations, subject to any further motions which the defendant might see fit to make. The jury being present, it was then directed by the court to return a general verdict for the plaintiff. After the rendition of that verdict defendant moved to set it aside and for a new trial and that motion was denied.

Upon appeal, the Appellate Division reversed the judgment entered upon the verdict so directed, upon questions of law and granted judgment in favor of defendant. Thereafter, on its own motion, the Appellate Division reversed the judgment upon questions of law, granted judgment in favor of defendant and reversed the finding of the jury in its special verdict in answer to the second question submitted to it.

Such a reversal must be regarded as upon questions of fact, since it is an appeal to this' court from a judgment reversing a judgment entered upon a general verdict, with special findings, of a jury and the Appellate Division has specified in its order the particular question of fact reversed. (Civ. Prac. Act, § 602; Humphrey v. Commerce Ins. Co., 273 N. Y. 160, 162; King v. Interborough Rapid Transit Co., 233 N. Y. 330, 333; Queeney v. Willi, 225 N. Y. 374.) In King v. Interborough Rapid Transit Co. (supra) this court said: The Appellate Division, in the body of its order, not only dismissed the complaint but also specifically reversed ' the finding of the jury that defendant was negligent.’ Although the opinion does not discuss the weight of evidence, this must be regarded as a reversal on a question of fact, that is, on the weight of evidence, as well as upon the absence of evidence, within the meaning of Code of Civil Procedure, section 1338 (Civil Practice Act, § 602). (Queeney v. Willi, 225 N. Y. 374, 379; Moore v. Vulcanite P. Cement Co., 220 N. Y. 320, 322.) It follows that a new trial must be had.” In Queeney v. Willi (supra, p. 379) it was said: “ The orders of reversal specify that the finding of the jury that the defendant was guilty of negligence is disapproved by the Appellate Division. It thus appears that the judgments were reversed on questions of fact as well as on the law. A new trial must, therefore, be granted. (Code Civ. Proc. § 1338.) ”

At the trial the solution of the conflicting claims of the parties depended upon a single conversation on the telephone between a representative of the defendant and the insured. The latter, of course, was dead. The company representative testified that the deceased requested that the address, to which his mail and premium notices should be sent in the future, be changed and that he gave the new address which was to be substituted for the old. The representative further testified that he asked that the proposed change be confirmed in writing; that on the day following he received the premium notice which had previously been forwarded to the insured in connection with the premium due on August 22, 1936, with lines drawn through the address typed thereon and a new one in script, written below it. On that notice there was the figure of a hand pointing toward the name and address of the insured with the legend: “ If you want this address changed write the new address on the other side of this card and sign your name.” On the reverse side was the following: NOTICE OF CHANGE OF ADDRESS OF POLICYHOLDER. To the Ordinary Renewal Department. Gentlemen: I hereby notify you of change in the address to which premium notices and other communications are to be sent.” (Emphasis supplied.) Then followed blank lines for the street and number, city and State, of the policyholder and a fine for his signature. Opposite this latter Une there was the following: “ Note. The insured must sign full name here.”

Above the NOTICE OF CHANGE IN ADDRESS was the following:

“ NOTICE TO POLICYHOLDERS AS TO POWERS OF AGENTS.— No agent has power on behalf of the Company to make or modify any contract of insurance or waive any provision thereof, to extend the time for paying a premium, to waive any forfeiture, or to bind the Company by making any promise, or making or receiving any representation or information.” (Emphasis supplied.)

There was no address written on the reverse side of the notice and there was no signature of the insured on either side.

There was litigated the questions whether any such conversation as that related by the company representative had ever occurred between him and the insured, the content of whatever conversation the jury might find did in fact take place and whether the new address on the notice, below the address which had had lines drawn through it, was in the handwriting of the insured. The jury, as we have noted, found for the plaintiff. It found, in effect, that the defendant had failed to sustain the burden of proving its claim that it had mailed a proper notice to the last known post office address of the insured.

There were clearly questions of fact which the plaintiff was entitled to litigate before a jury as a matter of right. (State Const, art. I, § 2.) This is not a situation where defendant claimed in the Appellate Division that the verdict should be directed against the one having the burden of proof but one where the claim was that the verdict should have been directed, as a matter of law, in favor of the one having the burden of proof, after a jury had found that that burden had not been sustained.

The court charged the jury without exception, and it is the law of the case, that it was for the jury to say whether it believed “by. a fair preponderance of the evidence that Mr. Imbrey manifested — in the sense that he conveyed, by words or by conduct, or by both — a choice or an election, a designation or definition of his last known post office address, in a manner which justified the defendant insurance company, in the exercise of ordinary prudence and caution, to accept a particular significance and meaning to his [the insured’s] words or conduct or both, * * (Insertion supplied.)

Under that charge, assuming that, the jury believed the opinion witness that the handwriting was that of the insured and that the conversation occurred as related by the company representative, there still remained the question of fact as to whether the defendant exercised ordinary prudence and caution in considering as sufficient the lining out of an address and the writing of another in its place, without a signature affixed, upon a paper which advised the insured-addressee that if he wished to effect a change of address for the receipt of premium notices, he must follow a designated method and sign his name.

The exercise of ordinary prudence and caution is peculiarly a question of fact. There may frequently be occasions when a trial court is required to direct a verdict against the one seeking to establish it. Rarely will a trial court be called upon to direct a verdict as a matter of law because the one seeking to prove such exercise has established it to the point that all contrary inferences are excluded by the proof. Quite clearly that was not the situation disclosed on this record. In addition, as stated supra, there was no motion for the direction of a general verdict by defendant.

When the plaintiff established a prima facie case, as she did, there was presented a question of fact for the determination of a jury. After such determination it “ was for the Appellate Division to review this evidence and to reverse on the evidence if that court thought it insufficient to make out a case. In view, however, of the plaintiff’s prima facie case it could not reverse upon the law, that is, reverse because there was no evidence to sustain the claim and dismiss the complaint.” (Caldwell v. Lucas, 233 N. Y. 248, 254.) Since there was a reversal upon the facts, in a case where the plaintiff was entitled to a jury trial as a matter of right (State Const. art. I, § 2), the Appellate Division could not give final judgment on findings contrary to those of the jury. Such is a case provided for in the exception in Civil Practice Act, section 584, subdivision 1: “ except where it may be necessary or proper to grant a new trial or hearing, when it may grant a new trial or hearing.” (Faber v. City of New York, 213 N. Y. 411; Meisle v. N. Y. C. & H. R. R. R. Co., 219 N. Y. 317; Constantino v. Watson Contracting Co., 219 N. Y. 443, 446; Gressing v. Musical Instrument Sales Co., 222 N. Y. 215; Maguire v. Barrett, 223 N. Y. 49; Queeney v. Willi, 225 N. Y. 374; Marks v. Cowdin, 226 N. Y. 138; Murtha v. Ridley, 232 N. Y. 488; Binner v. Ethridge Co., 241 N. Y. 598; Peoples Trust Co. v. Schultz N. & S. G. Co., 244 N. Y. 14; Raolaslovic v. N. Y. C. R. R. Co., 245 N. Y. 91; Toone v. City of New York, 218 N. Y. 616; Stevens v. Hulse, 263 N. Y. 421; Cohen, The Powers of the New York Court of Appeals, pp. 305, 434, 443.)

In Lamport v. Smedley (213 N. Y. 82, 85) this court said: In equity cases, before the days of code practice, the appellate court was not constrained upon reversal to order a new trial, but might proceed to render whatever new decree the justice of the case required. (Schenck v. Dart, 22 N. Y. 420; Benedict v. Arnoux, 154 N. Y. 715, 725; Penhallow v. Doane, 3 Dallas, 54, 107; Wickliffe v. Owings, 17 How. [U. S.] 47; Cragin v. Lovell, 109 U. S. 194.) The Appellate Division has now been reinvested with that power. Indeed, the power has been extended, for it applies to all actions and proceedings whether equitable or legal, except where the trial under review has been before a jury. The limitations upon the power of the appellate court in the latter class of cases we need not now consider.” In Caldwell v. Nicolson (235 N. Y. 209, at p. 212) it was pointed out: That a new trial instead of a dismissal follows a decision that the verdict of a jury upon some issues is against the weight of evidence, is so well settled as to require no discussion.” Again, we said in York Mortgage Cory. v. Clotar Const. Cory. (254 N. Y. 128, 134): The power of the Appellate Division to make new.findings of fact and a final adjudication thereon is, of course, limited to cases triable by the court and does not extend to cases triable as of right by a jury. (Middleton v. Whitridge, 213 N. Y. 499, 506.) ”

The fact is that plaintiff made out a yrima facie case and that as to the defense there were questions of fact presented. A jury must pass on them and plaintiff must be permitted to submit her evidence to a jury. It matters not how we think the jury should decide.

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

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur.

Judgments reversed, etc.


text:
    Felix Lesk, Respondent, v. London & Lancashire Indemnity Company of America, Appellant. Edward Timms, Respondent, v. London & Lancashire Indemnity Company of America, Appellant.

      Submitted May 20, 1941;
    decided July 29, 1941.

      H. Bradley Moore for appellant.
    Where a contract fixes the time of performance, the rule of reasonable time has no application. (Lipman v. Niagara Fire Ins. Co., 121 N. Y. 454.) The right to cancel a policy of insurance is distinguishable from the automatic lapse of a policy of insurance because of non-payment of premium. (Penrose v. Metropolitan Life Ins. Co., 163 Misc. Rep. 241.)

      Douglas E. Broum for respondents.
    If the “ notice of cancellation ” was sufficient, cancellation was not effected until November 9, 1938. (Gillette v. Utica Fire Ins. Co., 156 Misc. Rep. 639; Rose Inn Corp. v. National Union Fire Ins. Co., 229 App. Div. 349; Penrose v. Metropolitan Life Ins. Co., 163 Misc. Rep. 241.) The notice served was ineffective because it did not comply with the terms of the insurance contract. (Van Valkenburgh v. Lenox Fire Ins. Co., 51 N. Y. 465; Sherri v. National Surety Co., 243 N. Y. 266; Matter of Otterbein v. Babor & Comeau Co., 272 N. Y. 149; Matter of Garelick v. Rosen, 274 N. Y. 64.)

      Maurice Brandt for Old Iron & Steel Corporation, amicus curise.

    The effective expiration time of the policy was either midnight of November eighth, or twelve o’clock noon of -November ninth, but in either event the policy was in full force and effect when the accident occurred on November eighth at five-fifteen p. m. (Cons. Laws, ch. 22, §§ 24, 25; Gillette v. Utica Fire Ins. Co., 156 Misc. Rep. 639.)
   Conway, J.

These are appeals from the unanimous affirmances by the Appellate Division of two judgments entered upon orders striking out the defendants’ answers in two actions and granting plaintiffs summary judgments.

Defendant issued its policy of automobile liability insurance for a period of one year commencing on the 24th day of January, 1938,' to the Old Iron & Steel Corp. The plaintiffs sued that latter corporation and William Shearer to recover damages for injuries sustained by reason of an accident in which an automobile truck, owned by the said corporation, and operated by Shearer, was involved. The defendant insurer refused to defend the actions, claiming that the policy of insurance had been canceled prior to the occurrence. The plaintiffs had judgments against the Old Iron & Steel Corp. and Shearer and, no part of said judgments having been paid, brought this action under former section 109 of the Insurance Law (Cons. Laws, ch. 28 [see now, § 167]) to recover the amount of the judgments from the defendant insurer.

The accident occurred at five-fifteen p. M. on the 8th day of November, 1938, and the only question presented is whether the policy had been canceled before that time.

The material clause of the policy reads as follows:

7. CANCELLATION. This policy may be cancelled by the named Insured by mailing written notice to the Company stating when thereafter such cancellation shall be effective, in which case the Company shall, upon demand, refund the excess of premium paid by such Insured above the customary short rate premium for the expired term. This policy may be cancelled by the Company by mailing written notice to the named Insured at the address shown in this policy stating when not less than jive days thereafter such cancellation shall be effective, and upon demand the Company shall refund the excess of premium paid, by such Insured above the pro rata premium for the expired term. The mailing of notice as aforesaid shall he sufficient proof of notice and the insurance under this policy as aforesaid shall end on the effective date and hour of cancellation stated in the notice. * * * ”

On November 2, 1938, the defendant insurer sent to the Old Iron & Steel Corp. by registered mail, the following notice:

Take notice that the London & Lancashire Indemnity Company of America hereby cancels its Policy No. A4529222 in accordance with the conditions thereof and that all further liability of said Company under said Policy will absolutely cease at 12 o’clock NOON Standard Time November 8th, 1938.
The premium not having been paid to the Company, formal demand is now made upon you for earned premium to date of cancellation, amounting to $80.52.”

November 8, 1938, was Election Day, a holiday. The accident occurred some five hours after noon on that day.

General Construction Law (Cons. Laws, ch. 22), sections 20 and 25, read as follows:

§ 20. Day, computation. A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made. Sunday or a public holiday, other than a half holiday, must be excluded from the reckoning if it is the last day of any such period, or if it is an intervening day of any such period of two days. In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning.”
§ 25. Holiday in contractual obligations. Where a contract by its terms requires the payment of money or the performance of a condition on a public holiday, such payment may be made or condition performed on the next business day succeeding such holiday, with the same force and effect as if made or performed in accordance with the terms of the contract.”

The cancellation became effective at the time stated in the notice, provided that was not less than five days after the mailing of the written notice to the insured. The word “ thereafter,” italicized in the second sentence of the policy provision “ 7,” has no significance unless it refers hack to the word “ mailing,” the tenth word of the sentence. Since the date of mailing was November 2d, November 8th was “ not less than five days thereafter,” and the cancellation became effective then unless General Construction Law, sections 20 or 25, is applicable.

Section 20 provides for the • exclusion, from a specified period of days, of the calendar day from which reckoning is made, i. e., the date of the mailing/ of the notice, and, in addition, for the exclusion of a public holiday from the reckoning if it be the last day of such a period. In the instant case, if we exclude November 2d, the mailing date, the five days required would not have expired on November 8th but on the day before. There would have been five intervening days ending with November 7th. A calendar day, of course, includes the time from midnight to midnight. (General Construction Law, § 19.)

Section 25 by its terms applies to a contract requiring the payment of money or the performance of a condition on a public holiday and permits such payment or performance of condition on the next succeeding business day. The notice of cancellation here did not require the payment of money nor the performance of any condition. The tender of a premium by the insured would not have affected the notice already given. The earned premium was demanded only to the date of cancellation. The insured could not have compelled the continuance of the policy upon payment of any sum. The period of not less than five days ” was prescribed in order that the insured might obtain other insurance before the effective date of the cancellation, if he so desired.

General Construction Law, section 25, was amended in 1902 (L. 1902, ch. 39) after the decision of the case of Page v. Shainwald (169 N. Y. 246, 251). There the plaintiff and defendant had agreed that the latter would, upon request, purchase plaintiff’s stock, at a price named, on the 1st day of January, 1898. The plaintiff tendered his stock and made request for performance on January 3d, claiming timeliness in view of the fact that January 1st was a holiday and January 2d was Sunday. This court, distinguishing between Sundays and holidays, held that the option had expired, saying: “ Indeed, in only two respects has the legislature attempted to interfere with the ordinary course of business whether public or private on a holiday other than Sunday. The first act provides that a negotiable instrument maturing on a holiday is payable on the next succeeding business day (Laws 1887, ch. 289), and the second that holidays shall be considered as Sunday for all purposes whatsoever, as regards the transaction of business in the public offices of the state or of the counties of the state. (Laws 1897, ch. 614, § 1.) ” (See, also, Jessar Realty Corp. v. Friedman Realty Co., 253 N. Y. 298.)

The amendment of the statute does not help the plaintiffs since there was neither payment of money nor performance of condition required or contemplated by the notice of cancellation.

The use of the present tense in the notice of cancellation — hereby cancels ” — was proper although the effective date was six days after the date of mailing. (Van Valkenburgh v. Lenox Fire Ins. Co., 51 N. Y. 465; Hanover Fire Ins. Co. v. Wood, 209 Ala. 380; German Union Fire Ins. Co. v. Clarke Co., 116 Md. 622.)

The judgments should be reversed and pursuant to the stipulation of the parties, judgment directed in favor of defendant in both actions, with costs in all courts.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur.

Judgment accordingly.


text:
    Morris H. Mann, Appellant and Respondent, v. R. Simpson & Co., Inc., Respondent and Appellant.

      Argued May 29, 1941;
    decided July 29, 1941.

      Daniel Levy for plaintiff, appellant and respondent.
    The Factors’ Act creates a statutory lien only to the extent of the amount parted with plus interest at six per cent per annum. (Green v. Wachs, 254 N. Y. 437; Nelkin v. Provident Loan Society, 265 N. Y. 393.) The claim of protection under the Factors’ Act must be affirmatively pleaded as a defense. (Weaver v. Barden, 49 N. Y. 286; Thorer & Hollander, Inc., v. Fuchs, 241 App. Div. 359.) The defendant did not assert a lien under the Factors’ Act but asserted a pawnbroker’s lien. (Lafrinz v. Whitney, 233 N. Y. 107; Maynard v. Anderson, 54 N. Y. 641.)

      Joseph J. Zeiger, Ephraim Berliner and Michael Bechler for defendant, respondent and appellant.
    Defendant’s answer read as a whole clearly makes claim to protection under the Factors’ Act (Pers. Prop. Law, § 43; Cons. Laws, ch. 41) and entitles defendant to offer proof of such claim. (Feinherg v. Allen, 208 N. Y. 215; Oakland Mfg. v. Linde Co., 162 App. Div. 543; Spooner v. Cummings, 151 Mass. 313; Freudenheim v. Gutter, 201 N. Y. 94; Nelkin v. Provident Loan Society, 265 N. Y. 393; City of New York v. Citizens’ Water Supply Co., 204 App. Div. 783; 237 N. Y. 587; Chatfield v. Simonson, 92 N. Y. 209; Wood v. Lady Duff-Gordon, 222 N. Y. 88; Hewitt v. Farmers’ Loan & Trust Co., 204 App. Div. 797; Brick v. Cohn-Hall-Marx Co., 283 N. Y. 99; Carter, Macy Co. v. Matthews, 220 App. Div. 679; Schenck v. State Line Tel. Co., 238 N. Y. 308; Neva-Wet Corp. v. Never Wet Processing Corp., 277 N. Y. 163.)
   Conway, J.

The case comes to us after a submission of controversy to the Appellate Division, first department. The terms of the "submission are so involved that it is' necessary to discuss them more fully than would be otherwise required.

The plaintiff was a dealer engaged in buying and selling jewelry and precious stones in New York city. The plaintiff delivered to one Gouldon, similarly engaged, a diamond ring of the value of $2,100, of which the plaintiff was the owner. At the time of the delivery Gouldon signed a memorandum addressed to the plaintiff and reading as follows: The undermentioned goods are for your examination at your risk, against Loss, Fixe, Burglary or Theft, and remain the property of M. H. Mann and are to be returned to him on demand. None of them are sold, nor does the title thereto pass until we shall be apprised of your selection, and have rendered a bill of a sale therefor.” Later Gouldon pledged the ring with the defendant, a licensed pawnbroker of the city of New York, which loaned to Gouldon on the security of the ring, in good faith, without notice of plaintiff’s claim of ownership of the ring, upon faith of the possession of it by Gouldon and in the regular and usual course of its business, the sum of $1,000 and delivered to Gouldon the usual memorandum known as a pawn ticket, providing for redemption upon payment of the loan with the regular pawnbroker’s interest of two per cent per month for the first six months and one per cent per month thereafter.

Thereafter plaintiff commenced an action in the City Court of the City of New York, which has since been discontinued. The complaint and the answer in that action are attached to the Submission of Controversy, made a part of it and amended by it. The question of admissibility of evidence, presented for our consideration by paragraph “ 11 ” of the Submission and the pleadings, as amended thereby, is to be determined as though in an action at issue.

The complaint, which was in replevin, alleged that the plaintiff was the owner and entitled to the immediate possession of the ring; that on the 7th day of February, 1938, the defendant was in possession of it; that on that day plaintiff made a demand for the immediate possession but the defendant refused and continues to refuse to deliver and wrongfully withholds possession of the ring from the plaintiff; that the ring on that date was worth $2,100, and that the withholding resulted in damage of $250 to the plaintiff. The matter of the damage has been withdrawn from the controversy.

The answer of the defendant consisted of general denials and a separate defense. The separate defense alleged that on November 29, 1937, a certain ring was pawned with the defendant as pawnbroker by a person who was then in possession thereof, and who was either the owner thereof, or entrusted by the plaintiff with the possession thereof for the purpose of sale, as security for a loan then made in the sum of $1,000 with interest thereon at pawnbroker’s rates and that the defendant in good faith, upon that security, delivered its pawn ticket representing such security and advanced the sum of $1,000.

We now come to the amendment of the answer by paragraph “ 11 ” of the Submission:

“ 11. It is and at all of the times mentioned herein was a general custom among jewelry dealers and in the jewelry trade in the City and State of New York, that jewelry delivered on memorandum and under memorandum, such as set forth in paragraph ‘ 8 ’ herein, is delivered for the purpose of sale to such customer or customers as the deliveree may find and the deliveree has the right to sell such jewelry to such customer or customers, said deliveree being obligated to return the goods or the sum of money set forth in the memorandum. Such custom was at all of the times mentioned herein known to the plaintiff and the said Alfred M. Gouldon and the delivery of said diamond ring by the plaintiff as aforesaid was made in accordance with and pursuant to such custom and for the purpose of this stipulation the defendant’s answer may be regarded as alleging such facts. The parties stipulate that the facts contained in this paragraph are true, but plaintiff makes the contention that solely because of defendant’s answer in the said City Court action, proof as to the said facts is incompetent under the Parol Evidence Rule and would be inadmissible by reason thereof as evidence on a trial under said pleadings in said action and the plaintiff therefore objects to such proof. In consequence plaintiff does not stipulate that these facts are to be considered in a decision of this case unless the Court determine that plaintiff’s said objection to such proof is untenable. Defendant contends Jihat such proof is admissible, notwithstanding the Parol Evidence Rule, under the defendant’s answer because of the provisions of Section 43, Personal Property Law. If plaintiff’s said objection to admissibility of such proof is sustained, judgment should be rendered for the plaintiff as set forth in the last paragraph hereof. If such objection is overruled, judgment should be rendered for defendant as set forth in the last paragraph hereof.”

The answer concluded with the following paragraph and demand:

7. That no part of the said loan has been repaid to the defendant, nor its said pawn ticket therefor returned to defendant, and that defendant still holds the said ring as security for the said loan, and that this defendant has a pawnbrokers’ lien thereon for the said sum of $1,000 with interest at pawnbrokers’ rates from November 29th, 1937.
WHEREFORE defendant demands judgment dismissing the complaint herein, together with the costs and disbursements of this action.”

The Submission contains the concession that the memorandum agreement between plaintiff and Gouldon as set forth in paragraph “ 11 ” thereof is unambiguous and then provides that the parties exclude from the consideration of the court any omission on the part of the plaintiff to make any money tender to the defendant before the commencement of the City Court action or the Submission and any question of demand by plaintiff upon defendant for the ring involved and any question of refusal of defendant to comply with the demand.

The question for decision comes to this: If in its answer the defendant sought to defeat plaintiff’s cause of action by relying upon a pawnbrokers’ lien, plaintiff is entitled to recover because then defendant would be relying upon the agency of Gouldon and would be bound by the memorandum agreement between plaintiff and Gouldon. Defendant would then be seeking the “ benefit of its bargain.” Gouldon was not authorized to pledge and defendant could not vary the terms of the memorandum agreement signed by Gouldon.

If on the other hand defendant by its answer sought to obtain the benefit of section 43 of the Personal Property Law (Cons. Laws, ch. 41), entitled “ Factors’ Act,” then it would be claiming an advantage conferred by statute and not under the memorandum agreement between plaintiff and Gouldon. The parol evidence rule would then not be applicable and defendant could obtain a dismissal of plaintiff’s complaint under the terms of the submission. (Nelkin v. Provident Loan Society, 265 N. Y. 393.)

It is provided in the first subdivision of the Factors’ Act, Personal Property Law, section 43, that every factor or other agent, entrusted with the possession of any merchandise for the purpose of sale, shall be deemed to be the true owner thereof so far as to give validity to any contract made by such agent with any other person * * * for any money advanced * * * upon the faith thereof.” Subdivision 3 provides that nothing contained in the preceding subdivisions shall be construed to prevent the true owner of any merchandise from demanding or receiving it upon prepayment of the money advanced.

Returning now to the answer, the answer pleads that the ring was pawned by one who was entrusted by the plaintiff with the possession of the ring for the purpose of sale and that the ring was pawned as security for a loan made (this latter was the contract “ made by such agent with any other person,” to which validity was given by the statute). It was, up to that point, a clearly worded pleading which brought the defendant within the benefits accorded by the Factors’ Act. Has the defendant lost those benefits and has he changed his pleading entirely by adding to that statement in paragraph fifth of his answer that the loan of $1,000 was “ with interest thereon at pawnbrokers’ rates ” and that upon the security of the ring defendant delivered to the pledgor its pawn ticket and advanced the sum of $1,000? Going one step further, has the defendant lost the benefits accorded by the Factors’ Act because he added the 7th and Wherefore ” paragraph of his answer quoted supra?

A decision of that question, apart entirely from rules of pleading, requires a consideration of subdivisions 1 and 3 of the Factors’ Act. We read them to mean this: One such as Gouldon who has been entrusted with the possession of a ring for the purpose of sale shall be deemed to be the true owner thereof so far as to give validity to any lawful contract made by Gouldon with any person for money advanced upon the ring. That means that when Gouldon entered into a contract with the pawnbroker defendant, that contract had validity whether it gave a pawnbrokers’ lien with pawnbrokers’ rates of interest or whether there were other and different provisions in it. Validity was given to that contract and the defendant may hold the ring under that vahd contract and enforce it as against all except the true owner. As to the true owner it is a vahd contract but he has a right not given to any one else. The contract between Gouldon and the defendant is still vahd but it is not enforceable against the true owner if the latter takes advantage of subdivision 3 of the Factors’ Act and, upon prepayment of the money advanced,” demands the return of the ring. It would be vahd and enforceable even against the true owner if he failed to make prepayment ” within a reasonable time after knowledge of the contract.

There has been no prepayment ” here. The parties in the Submission have excluded from the consideration of the court any omission on the part of the plaintiff to make any money tender to the defendant before the commencement ” of the City Court action. If the omission of tender, which we assume means prepayment,” is excluded, that which is excluded is the omission.” Therefore, it was not made but we are not to consider that fact. There has thus been no tender or prepayment and subdivision 3 of the Factors’ Act, Personal Property Law, section 43, is excluded from our consideration.

That leaves us concerned only with subdivision 1 of the Factors’ Act! Under that, defendant holds under a valid pawnbroker’s contract with pawnbrokers’ interest rates. It is incorrect to speak of a factors’ hen here. Defendant holds under the contract he made and to that the Factors’ Act has given validity. The pleading of defendant was meticulously correct. It pleaded the ultimate facts to bring it within the provisions of the Factors’ Act and then carefully set up the terms of the contract which it had made with Gouldon and to which validity had been given by the terms of the Factors’ Act. Defendant was not claiming a pawnbrokers’ lien except as that was given to it by reason of the fact that it had entered into a contract with Gouldon for a pawnbroker’s lien, which, in turn, was made valid by the terms of the Factors’ Act. The Factors’ Act by statute, made valid a contract which without such act would have been invalid because the agent had breached the authority conferred upon him by his principal. That contract, whatever it was, whether for a pawnbroker’s lien or for something else, was made valid by the Factors’ Act and it was perfectly proper, if not necessary, to set it out in the answer.

In Green v. Wachs (254 N. Y. 437) no claim to protection under the Factors’ Act was made, as was pointed out in Nelkin v. Provident Loan Society (265 N. Y. 393). The answer in the Green case shows that claim was made under the original agreement and a general custom. The seventh and eighth paragraphs of the Green answer were as follows:

Seventh. Upon information and belief that the plaintiff has been in the diamond and the jewelry business for a number of years, and that there is a general custom among the diamond merchants of the City of New York that when any diamonds or jewelry are delivered to any person on memorandum under a form of memorandum usually used by diamond merchants and which was used by the plaintiff when he delivered the said property to the said Vollman; that the person to whom said property is delivered on memorandum is clothed with authority and has the right to convey title to said property.
“ Eighth. That said general custom has been in existence for a long time, and that said article was delivered by the plaintiff to said Vollman under said general custom with the right in said Vollman to convey title to said property, and that said Vollman did convey title to said property mentioned in the complaint.”

Clearly what was sought was the benefit of the bargain,” upon assertion of full title.

As to the judgment which should be granted, the 15th paragraph of the Submission of Controversy provides:

15. Wherefore, plaintiff and defendant submit their controversy depending upon the foregoing facts to this Honourable Court for judgment in favor of the plaintiff, without costs, for the return of the said diamond ring or its value of Twenty-One Hundred ($2100.00) Dollars, with interest on Twenty-One Hundred ($2100.00) Dollars at six (6%) percent per annum, to the date of such return or payment, or for judgment in favor of the defendant, without costs, adjudging that it has a lien upon the said ring for the sum of One Thousand ($1000.00) Dollars from November 29, 1937, with interest thereon at the rate of two (2%) percent per month for the first six (6) months of said loan and at the rate of one (1%) percent per month for each succeeding month.”

The Submission provides for the judgment and courts will not go beyond a stipulation, which makes the law of the case in which it is made. (Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447, 452, 453.) There it was said: “* * * But the agreement of the parties bound them and concluded the court in that proceeding, and the court was bound as between the parties to observe, enforce and carry out the agreement. Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional rights.” (See, also, Matter of Malloy, 278 N. Y. 429, 433.)

The judgment of the Appellate Division should be reversed, without costs, in accordance with the terms of the Submission of Controversy, and judgment directed in favor of the defendant adjudging that it has a lien upon the ring for the sum of $1,000 from November 29,1937, with interest thereon at the rate of two per cent per month for the first sis months of the loan and at the rate of one per cent per month for each succeeding month.

That judgment is directed only because of the terms of the Submission of Controversy. Under the complaint and answer as amended there should be merely a dismissal of the complaint since no affirmative adjudication was requested by defendant. Under subdivision 3 of the Factors’ Act the defendant would be entitled to prepayment ” with six per cent interest from the date of the advance of moneys, provided plaintiff acted within a reasonable time after knowledge. Under the terms of the Submission, however, we are required to give the judgment indicated upon our determination that defendant’s contention is correct that proof of the facts set forth in paragraph 11 of the Submission and the pleadings, as amended, is admissible “ notwithstanding the parol evidence rule, under the defendant’s answer because of the provisions of section 43, Personal Property Law.” The Submission further provides: If such objection is overruled, judgment should be rendered for defendant as set forth in the last paragraph hereof.” The paragraph referred to by the word “ hereof ” is paragraph 15 quoted in full, supra.

Plaintiff appeals, by cross-appeal, from so much of (1) the judgment entered on the order for judgment of the Appellate Division which was entered June 29, 1939, as fails to award to the plaintiff interest on $2,100 from February 7, 1938, and (2) from an order of the Appellate Division entered November 17, 1939, which denied plaintiff’s motion to resettle the order for judgment of the Appellate Division so as to provide for interest from February 7, 1938.

On plaintiff’s appeal: The appeal should be dismissed, without costs.

On defendant’s appeal: The judgment of the Appellate Division should be reversed, without costs, and judgment directed in favor of the defendant in accordance with this opinion.

Lehman, Ch. J., Finch, Rippey, Lewis and Desmond, JJ., concur; Loughran, J., dissents.

Judgment accordingly.


author: Per Curiam.

text:
    In the Matter of Paul Meyer, Appellant, against Sigismund S. Goldwater, as Commissioner of Hospitals of the City of New York, Respondent.
    Argued May 20, 1941;
    decided July 29, 1941.

      David Morgulas and Milton U. Copland for appellant.
    There is no evidence to sustain the finding of guilt on the third specification. (People ex rel. Leonard v. Cropsey, 149 App. Div. 730; People ex rel. Moynihan v. Greene, 179 N. Y. 253; Group v. Szenher, 260 App. Div. 308; 284 N. Y. 741.)

      William C. Chanter, Corporation Counsel (Edward J. McGratty, Jr., and Henry J. Shields of counsel), for respondent.
    The determination of respondent dismissing petitioner from the department was properly confirmed. (Matter of Roge v. Valentine, 280 N. Y. 268; People ex rel. Jackson v. Grant, 12 Daly, 294; People ex rel. Eagan v. York, 53 App. Div. 336; People ex rel. Ryan v. Sturgis, 96 App. Div. 620; 183 N. Y. 540; People ex rel. Reagan v. Partridge, 184 N. Y. 566; Matter of Greenfield v. Moses, 169 Misc. Rep. 389; 257 App. Div. 809.)
   Per Curiam.

The petitioner entered the service of the city of New York as a draftsman in 1910. Twenty-five years later, in 1935, a charge of “ incompetency, neglect of duty and misconduct ” with three specifications was preferred against him. The specific charge with which we are concerned arose out of transactions which it is alleged occurred in 1926. The petitioner being an honorably discharged soldier of the World War, a hearing was had upon the charge pursuant to section 22 of the Civil Service Law (Cons. Laws, ch. 7). Under that section the burden of proving incompetency or misconduct rests upon the person alleging it.

Two of the specifications were dismissed by the Appellate Division and they are not before us. The third specification, the one in issue, which referred to transactions alleged to have occurred nine years before, in 1926, reads as follows:

“ 3. Between March 19, 1926, and July 9, 1926, you, the said Paul Meyer, did receive and accept and employ to your own personal use and benefit from D. M. W. Contracting Company and/or David M. Woolin, divers sums of money amounting to approximately $550, when and at the time you, the said Paul Meyer, had been inspecting work done by the said D. M. W. Contracting Company and/or David M. Woolin in the performance of a certain contract with The City of New York for alterations to the Bellevue and Allied Hospitals in the City of New York.”

The specification was drawn improperly. In 1926 the petitioner was not an inspector but an architectural draftsman of building plans. He had never inspected any work done by the D. M. W. Contracting Company or David M. Woolin for the city of New York. No evidence was offered to prove that he had or that he was an inspector or that the city had suffered the slightest injury or damage. That specification, therefore, was not and could not be proved and no motion to amend it was made by the Corporation Counsel.

The learned Appellate Division in affirming the dismissal of petitioner and speaking with reference to the third specification said: The last named charge was, in effect, that petitioner had received and accepted money from a contractor ■ doing business with the department. The evidence supports this charge, and shows that the money was used by the petitioner in a stock brokerage account. While there is no direct evidence that at the time the money was received petitioner had control, or was passing upon any work done by this contractor, or that his official conduct was influenced by the payments received, still we think that the circumstances justify a finding by the department head that petitioner’s conduct warranted dismissal.” (260 App. Div. 3, 4). (Italics supplied.)

That formulates a charge other than the one made. Of that newly formulated charge, the petitioner may or may not be guilty. It was not the charge litigated. At the hearing the petitioner was called to the stand by the Corporation Counsel and frankly answered all of the nine questions which were put to him regarding the third specification and then relied on the complete failure of proof thereof.

The Legislature has been explicit in forbidding the removal of a veteran except for incompetency or misconduct shown after a hearing upon stated charges, and with the right to such employee or appointee to a review pursuant to article seventy-eight of the Civil Practice Act.” (§ 22, subd. 1.) So careful has been the Legislature of the rights of such a veteran, that it has made special provision that the burden of proving incompetency or misconduct shall be upon the person alleging it. In view of that we may not say that one charge may be made and that the accused, after faithful performance of his duties for almost a quarter of a century, be found guilty of another. We may not say that although the only proof adduced is that the accused did not do that which is charged, that nevertheless he may be dismissed from service.

The order should be reversed and the determination annulled, with costs in this court and in the Appellate Division. (See 286 N. Y. 697.)

Loughran, Rippey, Lewis and Conway, JJ., concur; Lehman, Ch. J., Finch and Desmond, JJ., dissent.

Order reversed, etc.

       David M. Woolin was doing business as D. M. W. Contracting Company.


text:
    In the Matter of John J. Finn, Appellant. Westchester County Bar Association et al., Respondents.
    Submitted June 12, 1941;
    decided July 29, 1941.

      John J. Finn, in person, and Thomas F. McAndrews for appellant.

      Richard H. Levet for Westchester County Bar Association, respondent.

      Elbert T. Gallagher, District Attorney of Westchester County (.Frederick E. Weeks, Jr., of counsel), respondent.
   Per Curiam.

The appellant, an attorney, was disbarred in 1932, without notice of application therefor, under Judiciary Law (Cons. Laws, ch. 30), section 477, after his conviction of a felony. No appeal was taken from the order of disbarment. In 1940 a motion was made by appellant to vacate or modify the order of disbarment as permitted by Judiciary Law, section 88, subdivision 4, by reason of his pardon by the Governor of this State. That motion was denied by an order of the Appellate Division, second department, entered on January 13, 1941. Thereafter in 1941 a motion was made to resettle that order of denial. Resettlement was granted by an order of the Appellate Division, second department, entered on February 18, 1941, but no material change was thereby made. The appeal to this court is only from such order of resettlement. It is an appeal from a non-appealable order and presents no constitutional question.

The appeal should be dismissed, without costs. (See 286 N. Y. 722.)

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Appeal dismissed.


text:
    People ex rel. Manice DeF. Lockwood et al., Respondents, against William S. Miller et al., Constituting the Tax Commission of the City of New York, Appellants
    Argued May 19, 1941;
    decided July 29, 1941.

      William C. Chanler, Corporation Counsel (.Arthur H. Goldberg, Arthur A. Segall and Morris Handel of counsel), for appellants.
    The court was without jurisdiction to review the supplemental assessment in the absence of an application for the correction of that assessment and a petition, order and writ of certiorari directed thereto. (People ex rel. Goelet v. Miller, 104 N. Y. L. J. 1960.)

      William E. Shrewsbury and Robert S. Tyson for respondents.
   Per Curiam.

The issue in this certiorari proceeding, as tendered by the petition and return, the latter of which was verified on August 18, 1938, was passed upon by a referee. Paragraph “ third ” of the petition alleged: “That during the time provided by law, a deputy tax commissioner acting under the direction of said Board of Taxes and Assessments, duly assessed the above mentioned real estate of the petitioners for the purpose of taxation for the years 1938 and first half 1939 * * That allegation was admitted.

Upon the service of the return, the court obtained jurisdiction of the parties and subject-matter. Subsequently, on October 1, 1938, the Tax Commission, purporting to act under the authority of section J41-4.0 of the Administrative Code (L. 1937, ch. 929), opened supplemental books for the first half of 1939 and therein listed the relators’ property. No application, with respect to the supplemental assessment for the first half of 1939 was made by relators, except one for exemption from local taxation of alterations and improvements pursuant to section J41-2.0 of the Administrative Code. No motion has ever been made to amend the return so as to raise the question, which was first urged on the motion to confirm the referee’s report, that the. court had been deprived of jurisdiction to review the assessed valuation for the first half of 1939 by reason of the fact that relators had not made application for reduction of the supplemental assessment and had not obtained a writ of certiorari directed to it. The issue litigated before the referee was the value of relators’ property as of October 1, 1937, and there was considered both the original assessment for 1938 and the first half of 1939 and the supplemental assessment for the latter period. The theory and pleadings upon which the proceeding was tried, submitted and decided by the referee must be retained. (Racine v. Morris, 201 N. Y. 240, 243.)

The order should be affirmed, with costs.

Lehman,. Ch. J., Loughban, Finch, Bippey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed.


text:
    Daniel O. Hastings, as Trustee of Standard Gas and Electric Company, Appellant, v. H. M. Byllesby and Company et al., Defendants, and Walter T. Rosen et al., Copartners under the Firm Name of Ladenburg, Thalmann & Co., et al., Respondents.
    Argued April 10, 1941;
    decided July 29, 1941.

      Simon H. Rifkind, William H. Button and Herbert L. Cohen for appellant.
    Plaintiff’s, title may not be attacked in this suit. (Bovay v. Byllesby, 12 Atl. Rep. [2d] 178; Palmer v. Larchmont Manor Co., 284 N. Y. 288; Thompson v. Magnolia Petroleum Co., 309 U. S. 478; Davis v. Davis, 305 U. S. 32; Louisville Railroad Co. v. Central Stockyards Co., 212 U. S. 132; Union Joint Stock Land Bank v. Byerly, 310 U. S. 1; Grant v. Leach & Co., 280 U. S. 361; Johnson v. Manhattan Ry. Co., 289 U. S. 479; Matter of Paramount Publix Corp., 82 Fed. Rep. [2d] 230; Matter of Eastern Utilities Investing Corp., 98 Fed. Rep. [2d] 620; Mulligan v. Bond & Mortgage Guarantee Co., 193 App. Div. 741; Ross v. Stroh, 165 Fed. Rep. 628.) Plaintiff is the owner of the causes of action. His ownership is derived from the orders of the bankruptcy court and from the express trust created by the plan of reorganization of the company. (Palmer v. Larchmont Manor Co., 284 N. Y. 288; Matter of Cheney Bros., 12 Fed. Supp. 605; Matter of Paramount Publix Corp., 82 Fed. Rep. [2d] 230; Matter of Eastern Utilities Investing Corp., 98 Fed. Rep. [2d] 620; National Lock Co. v. Thompson, 86 Fed. Rep. [2d] 484; Matter of Philadelphia & Reading Coal & Iron Co., 105 Fed. Rep. [2d] 354; Stephan v. Merchants Collateral Corp., 256 N. Y. 418; Central Hanover Bank & Trust Co. v. President & Directors of Manhattan Co., 105 Fed. Rep. [2d] 130.) The complaint sufficiently alleges plaintiff’s title and capacity. (Ward v. Petrie, 157 N. Y. 301; Ullman v. Cameron, 186 N. Y. 339; Cohen v. American Surety Co., 123 App. Div. 519; 192 N. Y. 227; Kittinger v. Churchill Evangelistic Assn., 239 App. Div. 253; Bouton v. Wheeler, 118 App. Div. 426; Rinehart v. Hasco Building Co., 153 App. Div. 153; Brenner v. McMahon, 20 App. Div. 3; Dyer v. Broadway Central Bank, 252 N. Y. 430; Schlesinger v. McDonald, 106 App. Div. 570; McLeod v. Miller, 201 N. Y. Supp. 108;
      Clark v. Kirby, 243 N. Y. 295.) Even if plaintiff were no more than an equity receiver, he would still have the right to maintain the action as a matter of comity. (Mabon v. Ongley Electric Co., 156 N. Y. 196; Stone v. Penn Yan, K. P. & B. R. R. Co., 197 N. Y. 279; Bicknell v. Lloyd-Smith, 109 Fed. Rep. [2d] 527; Union Guardian Trust Co. v. Broadway Nat. Bank, 138 Misc. Rep. 16; Booth v. Clark, 17 How. 322; Kirkbride v. Van Note, 275 N. Y. 244.)

      Alexander B. Siegel and Lewis A. Spence for Walter T. Rosen et al., as copartners, et al., respondents.
    Where action is instituted by a person, not in his natural capacity, but in an artificial capacity, the complaint must contain allegations of fact from which his capacity to bring suit appears. (White v. Joy, 13 N. Y. 83; Wikoff v. Hirschel, 258 N. Y. 28; Crouse v. New York State Railways, 214 App. Div. 678; Van Tuyl v. New York Real Estate Security Co., 153 App. Div. 409; Burns v. Maguire, 255 App. Div. 552; 280 N. Y. 700.) The allegations of the complaint are insufficient to show that appellant has rights of any kind in respect of the causes of action asserted in the complaint. (Burns v. Maguire, 255 App. Div. 552; Lion Bonding & Surety Co. v. Karatz, 262 U. S. 77; Fowler v. Osgood, 141 Fed. Rep. 20; Collins v. McDonald, 98 Fed. Rep. [2d] 258.) From the allegations of the complaint it appears that appellant is not a trustee with the powers defined in section 77B (c) of the Bankruptcy Act. (Matter of Forty Wall Street Corp., 258 App. Div. 108.) Appellant as special trustee appointed pursuant to the equity powers of the United States District Court of the District of Delaware has no capacity to sue outside of Delaware. (Gabouny v. Central Vermont Ry. Co., 250 N. Y. 233; Great Western Mining & Manufacturing Co. v. Harris, 198 U. S. 561; Lion Bonding & Surety Co. v. Karatz, 262 U. S. 77; McCandless v. Furlaud, 293 U. S. 67; Fairview Fluor Spar & Lead Co. v. Ulrich, 192 Fed. Rep. 894; Collins v. McDonald, 98 Fed. Rep. [2d] 258; Sigua Iron Co. v. Brown, 171 N. Y. 488.) Appellant should not be permitted to sue by comity. (Murnan v. Wabash Ry. Co., 246 N. Y. 244; Douglas v.
      N. Y., N. H. & H. R. R. Co., 248 N. Y. 580; Barth v. Backus, 140 N. Y. 230; Ockerman v. Cross, 54 N. Y. 29; Sigua Iron Co. v. Brown, 171 N. Y. 488; Shipman v. Treadwell, 208 N. Y. 404; Hale v. Allinson, 188 U. S. 56; Merchants’ Loan & Trust Co. v. Clair, 36 Hun, 362; 107 N. Y. 663; National Lock Co. v. Hogland, 101 Fed. Rep. [2d] 576.)

      Royal E. T. Riggs for Victor Emmanuel et al., respondents.
    It appears from the face of the complaint that the plaintiff has not legal capacity to sue. (Burns v. Maguire, 255 App. Div. 552; 280 N. Y. 700; Booth v. Clark, 17 How. 322; Great Western Mining & Manufacturing Co. v. Harris, 198 U. S. 561; Lion Bonding & Surety Co. v. Karats, 262 U. S. 77; Sigua Iron Co. v. Brown, 171 N. Y. 488; Shipman v. Treadwell, 208 N. Y. 404.)

      Bethuel M. Webster and Henry Cassorte Smith for Albert S. Cummins, respondent.
    The complaint was properly dismissed under rule 106 for failure to allege plaintiff’s capacity to sue. (White v. Joy, 13 N. Y. 83; Burns v. Maguire, 255 App. Div. 552; 280 N. Y. 700.) The plaintiff appointed pursuant to the equity powers of the District Court lacks capacity to sue as of right outside the State of Delaware. (Great Western Mining & Manufacturing Co. v. Harris, 198 U. S. 561; Lion Bonding Co. v. Karatz, 262 U. S. 77; Shipman v. Treadwell, 208 N. Y. 404; Hart v. Sansom, 110 U. S. 151; Holmberg v. Merrick, 24 Fed. Supp. 594; 110 Fed. Rep. [2d] 1022.) The plaintiff has no right to sue in the courts of ' New York by virtue of comity. (Barth v. Backus, 140 N. Y. 230.)

      H. G. Pickering and Stuart H. Steinbrink for Amerex Holding Corporation, respondent.
    The dismissal of the complaint on the ground that it appears on the face thereof that the plaintiff has not legal capacity to sue should be affirmed. (Burns v. McGuire, 255 App. Div. 552; 280 N. Y. 700; Goldberg v. Weihman, 243 App. Div. 734; 269 N. Y. 537.)

      Dwight R. Collin for Haystone Securities Corporation, respondent.

      Orison S. Harden for First Security Company, respondent.
   Per Curiam.

These are six appeals on a consolidated record from judgments entered upon decisions of the Appellate Division affirming judgments dismissing a consolidated complaint against the respondents and from the orders dismissing said complaint under rule 106 of Rules of Civil Practice upon the ground that it appeared upon the face of the complaint that the plaintiff had not legal capacity to sue.

The paragraph of the complaint upon which appellant must rely is as follows: .'

1. On or about the 27th day of September, 1935, Standard Gas and Electric Company filed in the District Court of the United States for the District of Delaware its petition seeking reorganization under Section 77B of the Act of Congress relating to bankruptcy, as amended; and on or about the same day said court made an order assuming exclusive jurisdiction of Standard Gas and Electric Company, Debtor, and of its property and assets wherever located. By an order of said court dated November 26, 1937, plaintiff was appointed Special Trustee of certain property and assets of Standard for the purposes set forth in said order, and this suit is brought by authority of the said court; and by further orders of said court plaintiff was duly authorized-to retain * * * counsel * *

The order of appointment is not attached to or made a part of the complaint. However, by stipulation there has been submitted to us certain papers among which is the order of the District Court of the United States for the District of Delaware, dated March 5, 1938, confirming the plan of reorganization of Standard Gas and Electric Company and making it a part of the said order of confirmation. An examination of the order and plan makes it manifest that the plaintiff is trustee under section 77B of the Bankruptcy Act (48 Stat. 912) of causes of action alleged to exist in favor of the debtor and referred to in the order of his appointment, that there is vested in him title to said property and assets and that he has been authorized to institute a suit or suits thereon. (See, also, Bankruptcy Act, § 77B, [c], [2].)

Some of the respondents here, in a similar action brought in the District Court for the District of Delaware, argued successfully that plaintiff is a trustee under section 77B of the Bankruptcy Act. The Circuit Court of Appeals for the Third Circuit has affirmed that ruling in a decision rendered since the submission of this case to us and, in the opinion rendered therein, referring to the instant case, pointed out that the plaintiff herein was a trustee and not an equity receiver. (See Matter of Standard Gas & Electric Co.— Hastings v. Byllesby & Co., 30 Fed. Supp. 21, on appeal, opinion of United States Circuit Court of Appeals, Third Circuit, filed April 23, 1941.) In footnote 2 to the opinion, the court said: “ In an action brought by the present plaintiff in the Supreme Court of New York against some of the present defendants that court granted a motion to' dismiss on the ground that the plaintiff was not a trustee but merely an equity receiver and, therefore, had no right to sue in a court outside of the jurisdiction in which he was appointed. It seems clear, however, from an examination of the order of appointment that the plaintiff was appointed trustee under § 77B with title to the choses in action sued on and with the powers which the Bankruptcy Act confers upon such a trustee to bring suit for the recovery thereof.”

Assuming, arguendo, however, that plaintiff’s status were merely that of equity receiver, nevertheless he has a right to sue, as a matter of comity, for the reason that the causes of action in suit were voluntarily assigned to him under the plan of reorganization, to which Standard Gas and Electric Company was a party. (Mabon v. Ongley Electric Co., 156 N. Y. 196.) In that case Judge Vann, writing for the court, said: While the laws of a foreign state have no force, as such, in this state, still our courts uphold the title of a foreign assignee or receiver upon the principle of comity. If the title is by virtue of a voluntary conveyance or transfer, it is sustained as against all, including even domestic creditors, but if it depends on a foreign statute or judgment, it is sustained against all except domestic creditors ” (p. 201).

Our courts have been liberal in allowing foreign receivers to sue. (Howarth v. Angle, 162 N. Y. 179; Stone v. Penn Yan, K. P. & B. Railway, 197 N. Y. 279; Bicknell v. Lloyd-Smith, 109 Fed. Rep. [2d] 527, at p. 528 [pointing out the difference between the Federal and the New York rule]; 1 Clark on Receivers, §§ 294, 591.)

Finally under a liberal construction of the pleadings, plaintiff’s capacity to sue is sufficiently alleged. (Rinehart v. Hasco Building Co., 153 App. Div. 153; affd., 214 N. Y. 635; Bouton v. Wheeler, 118 App. Div. 426.) The plaintiff here took title to the causes of action in suit. (Plan of Reorganization; Order of March 5, 1938; Bankruptcy Act, § 77B [c], [2] and [j].) In the Rinehart case the receiver was a chancery or common law receiver without title.

There, however, the court treated the demurrer, upon the ground that it did not appear on the face of the complaint that the plaintiff had legal capacity to sue, as frivolous, saying: It does not appear on the face of the complaint that the plaintiff has not legal capacity to sue. He not only alleges his appointment as receiver, but alleges that the court authorized him to bring the action. It is now well settled that the sufficiency of the complaint is not presented by this form of demurrer, and that it only raises the question as to whether, in the form in which the suit is brought, it appears by the complaint that the plaintiff had capacity to sue. (Ward v. Petrie, 157 N. Y. 301; Ullman v. Cameron, 186 id. 339; Cohen v. American Surety Co., 123 App. Div. 519; affd., 192 N. Y. 227; Leggett v. Stevens, 77 App. Div. 612.) Here the plaintiff was duly appointed receiver and duly authorized to sue, and, therefore, he had capacity to sue even though he did not have a cause of action” (p. 155).

The judgments should be reversed and the motion denied, with costs in all courts. (See 286 N. Y. 705.)

Finch, Lewis, Conway and Desmond, JJ., concur; Loughran, J., dissents; Lehman, Ch. J., and Rippey, J., taking no part.

Judgments reversed, etc.


text:
    Mohonk Realty Corporation, Appellant, v. Wise Shoe Stores, Inc., Respondent.
    Argued June 9, 1941;
    decided July 29, 1941.

      Meyer Grouf, David W. Kahn and Nathan Siegel for appellant.

      Joseph M. Proskauer, I. Alfred Levy, Bernard Weiss and Eugene Eisenmann for respondent.
   Per Curiam.

This is an action brought to recover rent under a lease. At Special Term the plaintiff was granted summary judgment. The Appellate Division reversed, taking the view that there were triable issues presented respecting whether the defendant should be held bound through privity of contract, as distinguished from privity of estate ” (260 App. Div. 64, 66) as well as other triable issues relating to an assignment made by the defendant, its surrender of possession to its assignee, and the latter’s acceptance of the assignment and entrance into possession. Two questions have been certified:

“1. Was there privity of contract as well as of estate between the parties?
“ 2. On the record herein was plaintiff entitled to summary judgment? ”

The decision of the Appellate Division was apparently •founded in a discretion which was exercised because the factual situation did not justify an answer to either of the questions now certified to us. The certified questions, therefore, should not be answered.

The appeal should be dismissed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Appeal dismissed, etc.