author: Cardozo, Ch. J. Crane, J.

text:
    Joseph Resigno, as Administrator of the Estate of Anthony Resigno, Appellant, v. F. Jarka Co., Inc., Respondent, Impleaded with Another.
    Ships and shipping — maritime law — stevedores — negligence — provision of Merchant Marine Act that seaman may maintain action at law for injury in course of his employment limited to seamen upon domestic vessel — stevedores on same footing as members of crew — action may not be maintained under Merchant Marine Act for death of stevedore njured on foreign vessel in waters of New Jersey ■— action maintainable under statute of New Jersey giving cause of action to his representatives— remedy not supplanted by adoption in that State of Workmen’s Compensation Act.
    1. The provision of section 33 of the Merchant Marine Act of 1920 (41 Stat. ch. 250) that any seaman who shall suffer personal injury in the course of his employment, may, at his election, maintain an action for damages at law * * is to be limited to seamen at work upon domestic vessels. They are without the purview of the act when working upon foreign vessels. Nor is there a distinction between the remedy available to seamen and that available to stevedores. The test does not vary with the nature of the service. For the purpose of applying the statutory remedy a stevedore is on the same footing as a member of the crew. (International Stevedoring Co. v. Haverty, 272 U. S. 50, explained.)
    2. An action, therefore, to recover for the death of a stevedore from injuries suffered on a foreign steamship, in navigable waters, at Hoboken, New Jersey, may not be maintained in this State under section 33 of the Merchant Marine Act, but, where a statute of New Jersey gives a cause of action for damages to appointed representatives, for negligence resulting in death, the action may be maintained under that statute and a motion to dismiss the complaint on the ground that the remedy has been supplanted by the adoption in that State of a Workmen's Compensation Act is improperly granted. There was no power in the Legislature of New Jersey to substitute a system of workmen’s compensation for the existing right of action for the use of the survivors. Since the wrong was done upon the waters, the circumstance is unimportant that the death which followed was upon the land.

      Resigno v. Jarka Co., Inc., 221 App. Div. 214, reversed.
    (Argued November 29, 1927;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1927, which affirmed a judgment in favor of defendant-respondent entered upon an order of Special Term granting a motion of defendant-respondent for dismissal of the complaint as to it.

      Harold R. Medina, Edward Gluck and Joseph Levy for appellant.
    Section 33 of the Jones Act applies to the case of a longshoreman fatally injured on a foreign ship in United States territorial waters. (International Stevedoring Co. v. Haverty, 272 U. S. 50; Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436; Padrone v. Howlett, 237 N. Y. 394; Panama R. R. Co. v. Johnson, 264 U. S. 375; Engel v. Davenport, 271 U. S. 33; Hammond Lumber Co. v. Sandin, 17 Fed. Rep. [2d] 760; Luckenbach S. S. Co. v. Campbell, 8 Fed. Rep. [2d] 223; 5 Fed. Rep. [2d] 674; Blosky v. Overseas Shipping Co., Inc., 219 App. Div. 438; Lloyd v. Hogan & Sons, 128 Misc. Rep. 665; Kuhlman v. Fletcher Co., 20 Fed. Rep. [2d] 465; Ingersoll-Rand Co. v. U. S. Shipping Board, etc., 195 App. Div. 838.) The incident that the death took place on land did not prevent the case from being one within the admiralty jurisdiction, where death statutes govern. (Matter of Clyde S. S. Co., 16 Fed. Rep. [2d] 930; Campbell v. Luckenbach S. S. Co., 5 Fed. Rep. [2d] 674; Luckenbach S. S. Co. v. Campbell, 8 Fed. Rep. [2d] 223; Kursa v. Overseas Shipping Co., 217 App. Div. 775; 220 App. Div. 729; United States Shipping Board Emergency Fleet Corp. v. Greenwald, 16 Fed. Rep. [2d] 948; Ryley v. Phila. & Reading R. R. Co., 173 Fed. Rep. 839; The Anglo-Patagonian, 235 Fed. Rep. 92; The Chiswick, 231 Fed. Rep. 452; Hamburg-Amerikanische Packetfahrt Aktien Gesellschaft v. Gye, 207 Fed. Rep. 247; The Sammanger, 298 Fed. Rep. 620; Van Doren v. Penn. R. R. Co., 93 Fed. Rep. 260; Needhams v. Grand Trunk R. R. Co., 38 Vt. 294; Louisville & Nashville R. R. Co. v. Williams, 113 Ala. 402.) The New Jersey Workmen’s Compensation Law does not govern this case; and if for any reason the Jones Act does not apply, then the New Jersey death statute does. (Fed. Const, art. 3, § 2; art. 1, § 8; Jensen v. Southern Pacific Co., 244 U. S. 149; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149; Washington v. Dawson & Co., 264 U. S. 219; Millers’, etc., v. Braud, 270 U. S. 59; Kursa v. Overseas Shipping Co., 217 App. Div. 775; 220 App. Div. 729; March v. Vulcan Iron Works, 132 Atl. Rep. 89; Lee v. Fletcher Co., 4 Fed. Rep. [2d] 3; Leszczymski v. Radel Oyster Co., 129 Atl. Rep. 539; Roswell v. Grays Harbor Stevedore Co., 231 Pac. Rep. 934.)

      Charles B. McLaughlin for respondent.
    The Jones Act does not apply at bar. (Clark v. Montezuma Transportation Co., 217 App. Div. 172; Plamals v. Pinar del Rio, 125 Am. Mar. Cas. 1309; The Navarino, 7 Fed. Rep. [2d] 743; The Princess Sophia, 278 Fed. Rep. 180; Panama R. R. Co. v. Johnson, 264 U. S. 375; Thompson Towing etc., Co. v. McGregor, 207 Fed. Rep. 209; Rainey v. N. Y., etc., Co., 216 Fed. Rep. 449; Transportation Co. v. Turner, 269 Fed. Rep. 334; Wenzler v. Robbin Line S. S. Co., 277 Fed. Rep. 812; Bennett v. Connolly, 122 Misc. Rep. 149; 208 App. Div. 852; Patterson v. Endora, 190 U. S. 169.) The cause of action here arose on the land, territory of New Jersey. The Compensation Law of that State is applicable, and there is no cause of action in admiralty, and, therefore, none at common law. (Bockhop v. Phoenix Transit Co., 97 N. J. L. 514; Grant, Smith-Porter Ship Co. v. Rohde, 257 U. S. 469; Holland v. Atlantic Stevedoring Co., 210 App. Div. 129; McKeering v. Pennsylvania R. Co., 65 N. J. L. 57; Cooper v. Shore Electric Co., 63 N. J. L. 558; Consolidated Traction Co. v. Hone, 60 N. J. L. 444; Grosso v. Delaware, L. & W. R. R. Co., 50 N. J. L. 317; Matter of Meekin v. Brooklyn Hts. R. R. Co., 164 N. Y. 145; Matter of Brennan, 160 App. Div. 401; Gmachle v. Rosenberg, 83 App. Div. 339.) The elective feature in a compensation law provides an exclusive remedy, even in cases exclusively within the admiralty jurisdiction, where the cause of action or the work out of which it arose is of a purely local nature, and does' not interfere with the general uniformity of the maritime law. (Atlantic Transport Co. v. Imbrovek, 234 U. S. 52; Egan v. Morse Dry Dock, 214 App. Div. 226; 212 N. Y. 556; State Industrial Comm. v. Nordenholt, 257 U. S. 567; Grant, Smith-Porter Ship Co. v. Rhode, 257 U. S. 469; Millers’ Underwriters v. Braud, 270 U. S. 59; Lahti v. Terry & Tench, 240 N. Y. 292; Metcalfe v. The Alaska, 130 U. S. 201.)
   Cardozo, Ch. J.

Plaintiff, an administrator, brings this action against F. Jarka Company, Inc., a corporation carrying on the business of master stevedores, to recover damages for the death of Anthony Resigno, his son. Anthony Resigno, a stevedore employed by the defendant, was working, when his injuries were suffered, on the steamship Hannover in navigable waters at Hoboken, New Jersey. The steamship Hannover is owned by the North German Lloyd, and flies the flag of Germany. Plaintiff alleges that the Jarka Company, the employer, was negligent in omitting to provide his son with a safe place of work and with competent fellow-servants as well as in other particulars. The employer moves to dismiss the complaint under Civil Practice Rule 107, subdivision 2, upon the ground that the Workmen’s Compensation Act of New Jersey supplies an exclusive remedy. The plaintiff founds his right of action, first, upon the act of Congress, commonly known as the Jones Act (Act of June 5, 1920, 41 Stat., c. 250, pp. 988, 1007, § 33), and if that be deemed inapplicable, upon a statute of New Jersey, adopted in 1848, awarding the remedy of damages where negligence results in death.

(1) Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.” (3 Mason’s U. S. Code, p. 3273, § 688.)

The foregoing section (33) is part of a statute entitled “ An Act to provide for the promotion and maintenance of the American Merchant Marine, to repeal certain emergency legislation, and provide for the disposition, regulation, and use of property acquired thereunder, and for other purposes.” Another section (39) is to the effect that the act “ may be cited as the Merchant Marine Act, 1920.”

Section 33, above quoted, is an amendment of section 20 of an act of March 4, 1915 (38 Stat., c. 153, p. 1164; Panama R. R. Co. v. Johnson, 264 U. S. 375, 389). The act last mentioned is entitled An act to promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion and to secure the abrogation of treaty provisions in relation thereto; and to promote safety at sea.” It amends divers provisions of the United States Revised Statutes, some of which are again amended by the.act of 1920, and also divers provisions of the act of December 21, 1898, entitled “ An act to amend the laws relating to American Seamen, for. the protection of such seamen, and to promote commerce.” It includes a new section, numbered 20 (the parent of the present § 33) which provides “ that in any suit to recover damages for any injury sustained on board vessel or in its service, seamen having command shall not be held to be fellow-servants with those under their authority.”

We hold that section 33 of the Merchant Marine Act of 1920, like its parent, section 20 of the act of 1915, is to be limited to seamen at work upon domestic vessels. We do not doubt the power of Congress to give a broader remedy. Irrespective of the nationality of the vessel, the remedy may be extended to any one who is injured within the territory of our waters. We are unable to convince ourselves that the power has been exercised. The section now before us is to be read in the setting of other acts and sections. So read, it is not susceptible of extension to any vessels but our own. As to these it applies both at home and on the seas. At home and on the seas they are subject to the power of our government. No such range of power exists in respect of foreign vessels. Power as to these is territorial and local. Congress did not intend to give a remedy for injuries suffered on the high seas aboard a vessel of another flag (Jackson v. S. S. Archemedes, 275 U. S. 463; American Banana Co. v. United Fruit Co., 213 U. S. 347, 357). We see no token of an intention to change the class of vessels with changes of locality. The act, when read in its setting, is true to its title, wherein its primary purpose is defined as the promotion and maintenance of the American Merchant Marine (cf. Patterson v. Bark Eudora, 190 U. S. 169, 172). It is not to be extended by words of general application to shipping not our own (cf. The Pinar Del Rio, 16 Fed. Rep. [2d] 984; affd. by the U. S. S. C. sub nom. Plamals v. S. S. Pinar Del Rio, 277 U. S. 151, without passing on this question; The Falco, 20 Fed. Rep. [2d] 362, 364).

A reading of related sections reinforces this conclusion. When foreign vessels are brought within the range of their provisions, the extension is express. There is no resort to doubtful inference. This is true of the Revised Statutes (see, e. g., §§ 4510, 4530, .4607, 4612; The Elswick Tower, 241 Fed. Rep. 706). It is true of the act of 1915 (see, e. g., §§ 14, 16). It is true of the act of 1920 (see, e. g., § 30, subsection P; §§ 31, 32, 34). Section 31 makes provision for the payment of part of the wages earned by seamen on board a vessel of the United States at ports where the vessel arrives. There is express statement that this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement.” The debates in the Congressional Record quoted in the briefs of counsel have relation to this section. They do not touch the case at hand. Section 32 makes it unlawful to pay wages in advance. Again there is provision that the section shall apply to foreign vessels in our waters (Jackson v. S. S. Archimedes, supra). Next in order is section 33, the one before us for construction; it significantly omits an equivalent extension. A few words would have stated that intention, not leaving such an important regulation to be gathered from implication ” (Jackson v. S. S. Archimedes, supra, quoting Sandberg v. McDonald, 248 U. S. 185). Congress had no difficulty in making its meaning plain when extension was desired. Its silence is the more telling when contrasted with its utterance.

Another signpost of intention is yet to be considered. As if to clinch the meaning, the chapter of the United States Code embodying the statutes in respect of merchant seamen ends with a section which has the label definitions.” In the construction of this chapter, every person having the command of any vessel belonging to any citizen of the United States shall be deemed to be the ' master ’ thereof; and every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the same shall be deemed and taken to be a ' seaman ’ ” (U. S. Code, § 713, c. 18, title 46; formerly U. S. R. S. § 4612). We cannot read this provision except as a statement that the intention of the Congress is to deal with domestic vessels and with those who work aboard them (The Elswick Tower, supra, and cases there cited). We do not ignore the plaintiff’s argument that section 713 of the United States Code, being substantially a re-enactment of United States Revised Statutes, section 4612, is to be limited to those sections of the chapter which were contained in the Revised Statutes before they were gathered into the Code (cf. Mason’s U. S. Code, vol. 1, p. 1). Of these, the present section (§33 of the act of 1920, now § 688 of the Code) is not one. Even if this be so, the definition has significance. The act of 1920 did amend many provisions of the Revised Statutes, as also did its parent, the act of 1915. The provisions so amended are cognate in spirit and effect to the section now before us. We impute to Congress a willingness to mask its true intentions if we say that the acts of 1915 and 1920 were framed throughout their main provisions in subjection to the statutory definitions of “ master ” and “ seaman,” but that a single section was expected without hint of such a purpose to bear a broader meaning. The conclusion is unreasonable that the lawmakers, designing an extension, would have left us thus to struggle with silence and obscurity. A new basis of liability, a new principle of jurisdiction, will not be held to have been interjected without warning or by uncertain implication. If considerations of convenience or policy can be marshaled in aid of a contrary conclusion, there are none of them so clear and unequivocal as to have controlling value. The development of our merchant marine requires, it is said, that foreign and domestic owners compete on a basis of equality. Equality is impracticable in respect of this provision, however we construe it, for jurisdiction is lacking to define the law of remedies for foreign vessels on the seas. In the long run, the development of our merchant marine may be fostered rather than impeded by holding out to seamen employed upon our ships the inducement of a protection withheld by our competitors. The appraisal of such tendencies is matter for the lawmakers. That which in its immediacy is a discouragement may be part of an encouragement when seen in its organic connection with the whole ” (Holmes, J., in Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U. S. 87, 100). We see no reason for a departure from the definitions of a glossary embodied in related statutes and framed for the very purpose of helping to stabilize construction.

The court is unanimous in its holding that seamen in the strict or proper sense are without the purview of the act when working upon foreign vessels. Whatever division there is among us has its origin in a supposed distinction between the remedy available to such seamen and that available to stevedores. The suggestion is that in cases of the latter order, the nationality of the vessel is to be rejected as a test. The judgment of the court is that the test does not vary with the nature of the service. Under the ruling of the Supreme Court (International Stevedoring Co. v. Haverty, 272 U. S. 50), a stevedore is in as good a position as if he were a seaman proper. We are unable to satisfy ourselves that under that decision, or by force of any consequences legitimately flowing from it, his position is even better. The fact is recalled to us in Atlantic Transport Co. v. Imbrovek (234 U. S. 52, 62), that in bygone days the work of loading and unloading was done by members of the crew. We think the effect of International Stevedoring Co. v. Haverty is merely to put a stevedore on the same footing as the crew for the purpose of applying the statutory remedy. True, indeed, it is that the remedies available to a stevedore may thus vary from day to day, and even from hour to hour, with the location of bis labor. Distinctions of that order are not unknown to the law. They have been made familiar by rulings under the Workmen’s Compensation Acts by which a longshoreman is given a remedy if working on a boat and denied the same remedy if working on a dock (State Industrial Commission v. Nordenholt Carp., 259 U. S. 263). So under the Employers’ Liability Act of Congress. The servant gains a remedy or loses one according to the particular service he is rendering at the very moment of the injury (Chicago, B. & Q. R. R. Co. v. Harrington, 241 U. S. 177). The incongruity is no greater here. Congress did not mean that if a stevedore and a member of a crew were injured on the same vessel as a result of the same casualty, the stevedore should have a remedy and the seaman none. The act was intended to apply to both or neither.

(2) The Federal act failing, there remains the statute of New Jersey which gives a cause of action for damages to appointed representatives where negligence results in death.

The Appellate Division held that the remedy under that act had been supplanted by the adoption in New Jersey of a Workmen’s Compensation Act, awarding the usual system of insurance to workmen subject to its provisions. We think the holding is erroneous. Resigno was injured while engaged in maritime work upon navigable waters. There was no power in the Legislature of New Jersey to substitute a system of workmen’s compensation for the right of action for damages that was his under maritime law. There was a like defect of power to substitute such a system for the then existing right of action for the use of his survivors. The point was expressly ruled in Warren v. Morse Dry Dock & Repair Co. (235 N. Y. 445; 262 U. S. 756); cf. Western Fuel Co. v. Garcia (257 U. S. 233, 240); Southern Pacific Co. v. Jensen (244 U. S. 205); Knickerbocker Ice Co. v. Stewart (253 U. S. 149); Washington v. Dawson & Co. (264 U. S. 219). A different question would be here if the Legislature had attempted to repeal the death statute altogether. What it attempted was “ not to abolish every remedy, but to substitute one remedy for another ” (Warren v. Morse Dry Dock & Repair Co., supra). “ To the extent that the substitution of a new remedy is ineffective, the old one survives.”

Since the wrong was done upon the waters, the circumstance is unimportant that the death which followed was upon the land (Kursa v. Overseas Shipping Co., Inc., 217 App. Div. 775; U. S. Shipping Bd. Corp. v. Greenwald, 16 Fed. Rep. [2nd] 948.)

The judgment of the Appellate Division and that of the Special Term should be reversed, and the motion denied, with costs in all courts.

Crane, J.

(concurring in result). A motion was made by the defendant, F. Jarka Co., Inc., under rule 107, subdivision 2, of the Rules of Practice, for judgment on the pleading dismissing the complaint upon the ground that the court did not have jurisdiction of the subject of the action. The motion was granted and the judgment of dismissal has been affirmed by the Appellate Division, one of the justices dissenting.

The complaint alleges that the defendant, F. Jarka Co., Inc., is and was a foreign corporation duly organized and existing under the laws of the State of New Jersey, maintaining an office for the regular transaction of business as stevedore in the borough of Manhattan, city and State of New York. Further allegations set forth that F. Jarka Co., Inc., under contract and agreement with the defendant, the North German Lloyd, was engaged in loading and discharging a cargo upon and from the steamship Hannover, lying afloat in navigable waters at a pier at the foot of Sixth street, city of Hoboken, State of New Jersey. The plaintiff’s intestate, Anthony Resigno, was in the employ of F. Jarka Co., Inc., as a longshoreman loading and unloading the ship. The complaint then goes on to allege negligence upon the part of the employer toward this employee, which resulted in his death. It is said that the master failed to provide him with a safe place to work, to furnish him competent fellow-servants; failed to warn him of latent and unknown dangers, or to properly instruct him in the performance of his duties — a common-law cause of action by a servant against his master. The facts of the accident are alleged, followed by a copy of the law of New Jersey, approved ■March 3, 1848, entitled: “An Act to provide for the recovery of damages where the death of a person is caused by a wrongful act, neglect or default,” the damages being recoverable by the representative of the deceased for the benefit of the widow and next of kin.

The courts of this State had jurisdiction of this cause of action, irrespective of Federal statutes, and the complaint should not have been dismissed.

The Workmen’s Compensation Law of New Jersey did not apply to the case, as the cause of action arose upon the navigable waters of the United States. (Danielsen v. Morse Dry Dock & Repair Co., 235 N. Y. 439; 262 U. S. 756; Washington v. Dawson & Co., 264 U. S. 219.) The fact that Anthony Resigno died on land does not ■change the admiralty nature of the tort. (Kursa v. Overseas Shipping Co., Inc., 217 App. Div. 775; The Chiswick, 231 Fed. Rep. 452; The Anglo-Patagonian, 235 Fed. Rep. 92; U. S. Shipping Board Emergency Fleet Corp. v. Greenwald [1927 C. C. A. 2], 16 Fed. Rep. [2d] 948; Hamburg-Amerikanische Packetfahrt Aktien Gesellschaft v. Gye, 207 Fed. Rep. 247, 253 [1913 C. C. A. 5].)

As the Workmen’s Compensation Act did not apply, an action could be maintained under the New Jersey Death Statute for common-law negligence causing death where the tort was committed upon navigable waters, and the State courts would have jurisdiction of the cause. (Warren v. Morse Dry Dock & Repair Co., 235 N. Y. 445; Western Fuel Co. v. Garcia, 257 U. S. 233; Kursa v. Overseas Shipping Co., Inc., supra.)

This complaint, therefore, stated a cause of action for common-law negligence resulting in death for which the New Jersey statute gave a right of action to the representatives for the benefit of the widow and next of kin of the deceased. Such a cause of action could be maintained in the Supreme Court of New York State, as it had jurisdiction of the parties. For this reason, if no other, the judgments below must be reversed, and the motion denied. It will not do, however, to stop here, as evidently the plaintiff is unable to prove a cause of action without the assistance of the benefits of the Federal statute. (Act of June 5, 1920; 41 Stat. 1007, chap. 250, sec. 33 which also appears in 3 Mason’s United States Code, Ann. of 1926, title 46, chapter 18, section 688, and known as section 33 of the Jones Act.)

As the deceased was working on a German ship, the Appellate Division has held that he is to be deemed a German seaman, and that the act is intended solely for the benefit of American seamen. Although agreeing with that court that the act was intended solely for the benefit of American seamen, I cannot agree that the deceased was in any sense a part of the crew of the Hannover, and thus a German seaman.

Section 33 of chapter 250 of the act of June 5, 1920, reads as follows:

“ Recovery for injury to or death of seaman.— Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located. (Mar. 4,1915, c. 8153, sec. 20, 38 Stat. 1185; June 5, 1920, c. 250, sec. 33, 41 Stat. 1007.)”

The appellant insists that “ every seaman ” includes every articled seaman of foreign ships entering our territorial waters; that this act applies to all foreign ships and their crews. He refers to the cases of Strathearn S. S. Co. v. Dillon (252 U. S. 348) and Cunard S. S. Co. v. Mellon (262 U. S. 100). As stated in the opinion below, when Congress intended to apply the shipping act to foreign ships, it so stated. This was the basis of the Dillon decision. Section 31 of the act of 1920 (Sec. 597 of Mason’s Code), “ Payment at ports,” provided: “That this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement.” Section 33 makes no such application, and it is natural to assume, therefore, that Congress did not intend to extend its provisions to foreign ships. The object of the act was to provide for the promotion and maintenance of the American Merchant Marine (Panama R. R. Co. v. Johnson, 264 U. S. 375, p. 389), and I fail to see how the American Merchant Marine would be benefited by applying the act to the crews of foreign ships. Stewart v. Pacific Steam Navigation Co. (3 Fed. Rep. [2d] 329) did not directly decide this point. (See The Navarino, 7 Fed. Rep. [2d] 743.)

However, even though the Jones Act does not apply to foreign ships and their crews while in territorial waters, it does not follow that longshoremen now considered to be American seamen are not within the purposes of the act, even when working on ships of other nationalities.

Longshoremen have become a class by themselves. They are connected with the local port and do the work of loading and unloading of ships of all nationalities entering that port. They are seldom, if ever, employed by the ship or its owners, but are usually in the employ of a boss stevedore. Such was the case here. Resigno was employed by F. Jarka Co., Inc. This was a corporation doing stevedore business. Resigno had no relations whatever with the ship. It did not employ him and owed him none of the duties arising out of the relationship of master and servant. F. Jarka Co., Inc., was the employer, and owed him the duties imposed by the common law upon masters. For a violation of those duties the ship owners would not be liable. (The Auchenarden, 100 Fed. Rep. 895; West India & P. S. S. Co., Ltd., v. Weibel, 113 Fed. Rep. 169; 51 C. C. A. 116; Imbrovek v. Hamburg-American Steam Packet Co., 190 Fed. Rep. 229; Dobrin v. Mallory S. S. Co., 298 Fed. Rep. 349, 352.) The longshoremen thus employed by a stevedore may work on many ships in the course of a day. Would he change his nationality every time to that of the ship on which he happened to be working? Such a statement strikes us at once as unreasonable. In fact he is not a seaman, but merely classed as such to come within the benefits of the Jones Act. Resigno was a resident of New Jersey, worked in New Jersey, and was employed by a domestic corporation doing stevedoring work. He never formed or became part of the crew of any ship, nor was he at the time in question employed by the ship or its owners. That he was classed as a seaman was due entirely to the intention of Congress as read into this provision of section 33, passed for the purpose of advancing the interests of the merchant marine and to benefit American seamen. His work was so closely connected with shipping and became so necessary to the loading and unloading of vessels that an act passed in the interests of American seamen could hardly have been intended to exclude him. This is the ruling in the Haverty case (International Stevedoring Co. v. Haverty, 272 U. S. 50). When Mr. Justice Holmes writes: “ It is true that for most purposes, as the word is commonly used, stevedores are not ‘ seamen.’ But words are flexible,” this is merely the justice’s stylistic way of saying that the act of June 5, 1920, was intended to include longshoremen among the class to be benefited by the act. The work of longshoremen was described in Atlantic Transport Co. v. Imbrovek (234 U. S. 52, 62) as follows: “ Formerly the work was done by the ship’s crew; but, owing to the exigencies of increasing commerce and the demand for rapidity and special skill, it has became a specialized service devolving upon a class ‘ as clearly identified with maritime affairs as are the mariners.’ ” This class of specialized workers connected with maritime service is to be covered by the act of 1920 and included within its provisions; not merely those few members of the class who happen for the time being to be working upon American ships. Stevedores and longshoremen would receive very little benefit from this act of Congress were it so limited. Unless the act has this general application, a shift of a gang of longshoremen from a ship on one side of a dock to a ship on the other side, might also shift the law of responsibility. Did Congress intend to make the law of responsibility for this class of workmen, or did it intend to leave it to these toilers by hand to select that law? The question must answer itself.

This application of the act of June 5, 1920, has been made in Zarowitch v. F. Jarka Co., Inc. (21 Fed. Rep. [2d] 187) where Judge Sheppard said: There was no privity between the ship and plaintiff, who was merely a harbor worker, in the service at the time of the Jarka Company, and it would seem a far cry, in view of these facts, to classify the plaintiff as a foreign seaman. The provisions of the Jones (Merchant Marine) Act, extending the rights and remedies applicable to seamen to stevedores, did not invest the latter with the character of seamen, but the statutes by judicial interpretation have been held to include marine workers, and the mere incident of the locus in quo of the work performed, though the test of admiralty jurisdiction in tort, does not change the status of such employee from stevedore to seaman.” This was followed by Judge Moscowitz in Mahoney v. International Elevating Co., Inc., in the District Court for the Eastern District of New York, November, 1927 (not yet reported), and by the Appellate Division, second department, in Muti v. Hoey, decided Nov. 4, 1927, and reported in 224 N. Y. Supp. 662. In Clark v. Montezuma Transportation Co., Ltd. (217 App. Div. 172), upon which so much stress is made, the plaintiff was part of the ship’s crew and was employed by the ship. He ceased for the time being to be an American seaman. (See, also, the reasoning in Rainey v. New York & P. S. S. Co., 216 Fed. Rep. 449.)

In behalf of the respondent, the suggestion has been made that we are forced to narrow the application of this act to longshoremen working on American vessels, by reason of the section of the law relating to merchant seamen containing definitions, schedule and tables found in section 713 of chapter 18, title 46, volume 3, Mason’s United States Code, Ann., 1926, p. 3279. It reads as follows: " Definitions, schedule, and tables — In the construction of this chapter, every person having the command of any vessel belonging to any citizen of the United States shall be deemed to be the master ’ thereof; and every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the same shall be deemed and taken to be a ' seaman; ’ and the term ‘ vessel ’ shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river, to which the provisions of this chapter may be applicable, and the term ' owner shall be taken and understood to comprehend all the several persons, if more than one, to whom the vessel , shall belong.”

I do not read this section as containing any such limitation. The purpose was expansion, not limitation. It intended to include in the word “ seaman ” all those working on board an American ship who might not ordinarily be classed as seamen, such for illustration as an orchestra owner. (The Sea Lark, 14 Fed. Rep. [2d] 201, and employments there cited.) It did not, however, necessarily exclude or intend to exclude all others from being American seamen. A sailor salvaging a foreign ship in domestic waters would not cease to be, I take it, when aboard such ship, an American seaman entitled to the benefits of the act. A longshoreman, now classed as an American seaman, does not lose the benefits of this act because he happens to be working for a few hours upon a German instead of an American ship. The act was for the benefit of the seamen, not solely for the benefit of the ship or the ship owners.

This act of June 5, 1920, about which we are writing, section 33, gives to the personal representative of any seaman whose death has been caused by a personal injury, an action for damages at law, with the right of trial by jury. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides, or in which his particular office is located. That such provisions did not exclude the jurisdiction of the Supreme Court of this State in a proper case, see Patrone v. Howlett (237 N. Y. 394).

E the above reasons be sound, it follows that the judgments below should be reversed, and the motion "for judgment on the pleading be denied, with costs in all courts.

Pound, Andrews, Lehman, Kellogg and O’Brien, JJ., concur with Cardozo, Ch. J.; Crane, J., concurs in result in separate opinion.

Judgments reversed, etc.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    In the Matter of Cornelius E. Byrne, Respondent, v. Jane E. Padden, Appellant.
    Jurisdiction — summary proceedings —• landlord and tenant — accord and satisfaction — wherever brought, judgment in any amount for the rent due may be granted in summary proceedings — such construction not in conflict with section 18 of article 6 of Constitution — City Court of Long Beach — jurisdiction of summary proceeding wherein judgment is demanded for rent due — accord and satisfaction between landlord and tenant.
    1. Section 1425 of the Civil Practice Act providing that, in summary proceedings to recover possession of real property, “ the court, upon rendering a final order, may determine the amount of rent due to the petitioner and give judgment for the amount found to be due,” is a general provision referring to all applications wherever made. In summary proceedings, therefore, wherever brought, judgment for rent due may be granted, whatever the amount.
    2. Nor is such a construction in conflict with section 18 of article 6 of the Constitution providing that the Legislature may not confer on any local court any greater jurisdiction than is conferred on County Courts by the judiciary article.
    3. The City Court of Long Beach, therefore, the jurisdiction of which is limited in actions on contract to those where the sum claimed does not exceed one thousand dollars, is authorized to entertain a summary proceeding to recover possession of real property, wherein the petitioner asks judgment for twelve hundred dollars rent due and in which there is pleaded a defense of accord and satisfaction and a counterclaim for damages for breach of contract.

      4. Where upon the trial of such a proceeding the evidence shows that there being a genuine dispute between the landlord and tenant as to their rights, in return for the tenant continuing as such and paying a sum stated, the landlord agreed to permit her to remain for the rest of the season and to release his claim for rent unpaid, and a check for the amount named was accepted by the landlord, presented to the bank on which it was drawn and by it certified, there was an accord and satisfaction.

      Matter of Byrne v. Padden, 221 App. Div. 764, reversed.
    (Argued April 11, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 10, 1927, which reversed an order of the Nassau County Court reversing a judgment of the Long Beach City Court in favor of plaintiff entered upon a verdict and directed reinstatement of said judgment.

      William C. Mayer and M. John P. Jacobs for appellant.
    The City Court of Long Beach because the amount of rent claimed exceeded $1,000 did not acquire jurisdiction of the rent claim to render a money judgment. (McIntyre v. Corriere, 17 Hun, 64; Heffron v. Jennings, 66 App. Div. 443; Madison Estates, Inc., v. Rainess, 131 Misc. Rep. 45; Cook v. Cook, 56 Misc. Rep. 249; Goodman v. Jamison, 72 Misc. Rep. 32; Nat. Surety Co. v. Rosenberg, 158 App. Div. 896; Warden v. Goldman, 84 Misc. Rep. 87; Weis v. Richartz, 130 Misc. Rep. 583; Central Park-West 84th St. Corp. v. Cusack, 130 Misc. Rep. 770; Dobrikin v. Union R. Co., 130 Misc. Rep. 796; Dilworth v. Yellow Taxi Co., 220 App. Div. 772.) The Waiver by the landlord of demand for a money judgment could not be recalled. (Alsens A. P. C. Works v. Degnon Const. Co., 222 N. Y. 34; Matter of Cushman, 177 App. Div. 127; Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447.) , An accord and satisfaction was proved and left nothing for a jury. (Rauch v. Davenport, 60 Hun, 70; Reiner v. Jones, 38 App. Div. 441; Thomson-Houston

      Elec. Co. v. Durant Land Imp. Co., 144 N. Y. 34; Hexter v. Knox, 63 N. Y. 561; Brewster v. Silverstein, 78 Misc. Rep. 123; Schnell v. Perlmon, 238 N. Y. 362; St. Regis Paper Co. v. Tonawanda Co., 107 App. Div. 90; Looby v. Village of West Troy, 24 Hun, 78; Nassoiy v. Tomlinson, 148 N. Y. 326; Hill v. Sommer, 53 Hun, 392.)

      Frederick W. Shaw and John J. Knob for respondent.
    The City Court of the city of Long Beach had jurisdiction to try both issues even though the petition and precepts originally demanded judgment in excess of $1,000. (Cook v. Cook, 107 N. Y. Supp. 384; Libow v. Lauer, 210 N. Y. Supp. 618; Central Park-West 84th St. Corp. v. Cusack, 130 Misc. Rep. 770; Lewkowicz v. Queens Aeroplane Co., 154 App. Div. 142; 207 N. Y. 290.)
   Andrews, J.

In April, 1926, Cornelius Byrne leased a house to be used as a boarding house at Long Beach to Mrs. Padden for the summer season. She was to pay therefor $1,100 before May 1st and $1,100 on July 1st. The house was in poor condition and the landlord promised orally to make necessary repairs. One thousand dollars was in fact paid but when the balance was demanded in July, the tenant refused to pay because this had never been done. Then late in the month the tenant told Mr. Byrne that the rent should be reduced or she would abandon the premises. Apparently in their then condition they were not suitable for the purposes for which they had been rented. Mrs. Padden offered Mr. Byrne a check for $500 indorsed in full payment for balance of the season, premises 228 East Broadway, Long Beach.” If not accepted she again said she would leave the premises. It was accepted. It has never been returned and by some .one, clearly acting on behalf of the landlord, it has been presented to the bank on which it was drawn and certified.

Subsequently Mr. Byrne began proceedings in the City Court (of Long Beach to dispossess his tenant for nonpayment of rent. Also he asked to be granted judgment for $1,200 for rent due. The answer pleaded an accord and satisfaction and also counterclaimed for damages for breach of the contract to repair. The charter of the city of Long Beach limits the jurisdiction of the City Court in actions on contract to those where the sum claimed does not exceed $1,000. At the opening of the case the presiding judge called attention to this fact and the attorney for Mr. Byrne stated that he would waive the demand for a money judgment and proceed solely on the theory of dispossess.” At the end of the case repentance came. He then asked to be allowed to recover $700 and said the landlord was asking for a money judgment. On this theory the case was submitted to the jury without objection. A verdict for that amount was rendered and judgment (although not printed in the record) seems to have been entered awarding possession of the property to Mr. Byrne and for $700. The County Court reversed this judgment and ordered a new trial. Its theory was that in these proceedings the recovery of a money judgment is dependent upon a determination of the right to possession (Civ. Prac. Act, § 1425) and the jury not having passed upon that question, the real issue was never tried. This result has been reversed by the Appellate Division, and the judgment of the City Court reinstated. Appeal to us, however, was permitted.

1. As has been said the petition and precept claimed that rent in excess of $1,000 was due. And as has also been said the City Court is given jurisdiction in cases of contract where the sum claimed does not exceed $1,000,” and in numerous other cases with a like limitation. Summary proceedings may also be begun there, but no provision is made as to the value of the lease affected. Such proceedings are to be taken as prescribed by article 83, Civil Practice Act, so far as applicable to courts of justices of the peace. . (L. 1922, chap. 635, § 187.)

At first a dispute would not arise. In 1922 no judgment for rent was allowed as an incident to the removal of a tenant. A change came in 1924. “ If,” the statute now says, the precept contain a notice that demand is made in the petition for a judgment for rent in arrears, * * * the court, upon rendering a final order, may determine the amount of rent due to the petitioner and give judgment for the amount found to be due.” (Civ. Prac. Act, sec. 1425.)

The right to rent is based on contract. The jurisdiction of the City Court is limited by the claim ” made. Here no amount need be stated. It is enough if rent in arrears is demanded. Such a proceeding does not come within the letter of the statute. We prefer, however, to place our decision on a broader ground.

These limitations placed upon the jurisdiction of inferior courts are not upon the theory that they are incapable of dealing with larger sums. Their power ordinarily depends upon the amount claimed in the complaint. If it asks more than the sum prescribed, no jurisdiction attaches. It may not act. No subsequent amendment will confer what has never been acquired. But once jurisdiction- exists it is not lost because far more than the specified sum may be involved. A County Court may grant judgment in any sum on a counterclaim. (Howard Iron Works v. Buffalo Elevating Co., 176 N. Y. 1.) So the Legislature having conferred on County Courts jurisdiction to foreclose a mortgage, and made no limitation as to amount, it may enter a deficiency judgment for whatever is due. (Hawley v. Whalen, 64 Hun, 550.) In Justices Courts a counterclaim may be pleaded and the claim may be tried. (Heigle v. Willis, 50 Hun, 588.) Except for the Justice Court Act (sec. 264) an appropriate judgment far in excess of $200 might follow.

In short an inferior or local court, having once obtained jurisdiction may dispose of the entire dispute between the parties unless prohibited by Constitution or statute. Here the City Court may entertain these summary proceedings. The power to fix the rent due is an incidental matter. There is no intimation that the amount for which judgment may be given is limited — that results differ should the application be made to a justice of the peace, to a county judge, to a judge of the City Court of New York, or to the Municipal Court of that city. Section 1425 is a general provision referring to all applications wherever made.

Nor is such a construction in conflict with section 18, article 6 of the Constitution. The Legislature may not confer on any local court any greater jurisdiction in other respects than is conferred on County Courts by or under the judiciary article. Their jurisdiction is limited in-actions for the recovery of money only where the complaint demands judgment for a sum not exceeding $3,000. This is not such a proceeding. Except for this limitation and another not material, the Legislature may enlarge, their jurisdiction. And when enlarged jurisdiction is conferred “ by and under ” the Constitution.

Our conclusion is, therefore, that in summary proceedings, wherever brought, judgment for rent due may be granted, whatever the amount.

2. The verdict as recorded was in favor of the plaintiff in the sum of $700.” It seems to have been assumed that this was also a verdict that the landlord was entitled to possession. No objection was made to it. Had there been there could have been correction. The proper judgment seems to have followed. No point is now made by the appellant. We should not reverse on any such ground.

3. Even if under the counterclaim damages' for breach of contract might be proved none were in fact shown. Work was not done. As to its value nothing is said. At most, therefore, if the premises were untenantable the lessee might surrender possession.

4. The serious question is that of accord and satisfaction. There clearly was a genuine dispute between the parties as to their rights. Mrs. Padden claimed that she had been induced to enter upon the lease by oral promises to make repairs. By renewal of these promises she was induced to pay an installment of rent. The promises were never fulfilled and the house was in no condition to receive boarders. Under the circumstances Mrs. Padden clearly believed she might abandon possession and refuse to pay the balance of $1,200. She maintained this position in the face of threats of suit. Whether she was right or not we are not concerned. We deal with the question whether there was in good faith a dispute between these parties. (Schnell v. Perlmon, 238 N. Y. 362.)

With afiiairs in this condition an accord was reached. In return for her continuance as tenant and paying $500, Mr. Byrne was to permit her to remain for the rest of the season and release his claim for $1,200. And there was a satisfaction for he not only accepted the check but had it certified.

In view of this evidence the proceeding might have been dismissed. "In its discretion, however, the County Court granted a new trial. It might do so. (Justices Court Act, sec. 453.) Although mistaken as to the ground taken by it, the result was right. The judgment of the Appellate Division should be reversed and the judgment of the County Court affirmed, with costs in this court and in the Appellate Division.

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

Judgment accordingly.


author: Per Curiam.

text:
    Egbert H. Dudley et al., Respondents, v. Evelina B. Perkins et al., as Executors of George W. Perkins, Deceased, Appellants.
    Contract — principal and agent — action upon written contract— proof that plaintiffs had failed to comply with conditions — no recovery unless substantial performance or modification of conditions is shown ■ — • proof of authority of special agent to modify contract between his principal and third parties.
    1. Where it appears, in an action upon a written contract, that plaintiffs had failed to comply with its conditions and there is no evidence that the defect was so slight as to justify a finding of substantial performance, a recovery must fail unless it is shown that the conditions of the contract were modified thereafter.
    2. The authority of a special agent to modify a contract between his principal and third parties must be proved, not by his own acts or representations, but by the acts or representations of the principal.

      Dudley v. Perkins, 218 App. Div. 809, reversed.
    (Argued May 1, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict.

      Herbert A. Heminway for appellants.
    It was error to submit to the jury the question as to whether McGrath had authority to make agreements with the Dudleys that he was not instructed to make by Mr. Perkins. (Farmers Fund, Inc., v. Tooker, 207 App. Div. 37; Wells v. Chaffee, 207 App. Div. 467; City of Syracuse v. Standard Accident Co., 210 App. Div. 165; The Carbo Villano, 14 Fed. Rep. 978; Norton v. Albers Bros. Milling Co., 226 Pac. Rep. 809; Rhode v. Gallay, 70 Fla. 536; Ferran v.
      Boston Elev. Ry., 249 Mass. 212; Bowles v. Rice, 107 Ya. 53; Met. Aluminum Mfg. Co. v. Lau, 61 Misc. Pep. 105.)

      James O. Sebring for respondents.
   Per Curiam.

The plaintiffs failed to supply potatoes corresponding in size or grade to those called for by the conditions of their written contract with George W. Perkins, the defendants’ testator. There is no evidence for the plaintiffs that the defects were so few or slight as to justify a finding in their favor of substantial performance. To sustain their recovery they must show that the conditions of the contract were modified thereafter.

The modification relied upon is one that is said to have been permitted by one McGrath, acting or professing to act as Mr. Perkins’ representative. We held, when the case was here on an earlier appeal (Dudley v. Perkins, 235 N. Y. 448), that McGrath was at most a special and not a general agent, and that his authority to modify must be proved, not by his own acts or representations, but by the acts or representations of his putative principal. He had been employed to oversee the performance of a particular contract, not to modify its terms. A new trial has been had, and the case for the plaintiffs is no stronger than before. If anything, it is weaker, for the agent has been permitted to state the instructions of his principal. Neither by act nor by word did Mr. Perkins invest his assistant with authority to change the contract or release its obligations. The cause of action, therefore, fails.

On the authority of Dudley v. Perkins (235 N. Y. 448), the judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.


author: O’Brien, J.

text:
    George H. Newhall et al., as Receivers of the Kingston Trust Company, Appellants, v. Longacre Bank, Respondent.
    Banks and banking — fraud — parties — checks deposited in bank by payee who gave no consideration therefor and collected by bank through fraud of drawer — action by drawee to recover balance on deposit — payee of checks not necessary party to action.
    1. Where the record in an action shows that defendant, a bank, has possession of moneys misappropriated from the trust company of which plaintiffs are receivers, the proceeds of cheeks fraudulently drawn against the trust company by its treasurer and deposited with defendant by the payee who gave no consideration therefor, which cheeks defendant, without notice of the fraud, was able to collect, and defendant makes no claim of title, pleads no separate defense and produces no evidence to disprove the plaintiff’s case, there is no defense to the action.
    2. A contention that, in the absence of the payee of the checks, no action can be maintained against defendant, cannot be sustained. On the facts as disclosed the payee is not a necessary party.

      Newhall v. Longacre Bank, 221 App. Div. 837, reversed.
    (Argued May 2, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 21, 1927, modifying and affirming as modified a judgment in favor of defendant entered upon a verdict directed by the court.

      Allen S. Hubbard and Alfred M. Lindau for appellants.
    Plaintiffs proved a good cause of action for money had and received. Cragg, Matthews & Co., Inc., was not a necessary party. (Chapman v. Forbes, 123 N. Y. 532; Walsh v. Nat. Broadway Bank, 13 Misc. Rep. 3; Roberts v. Ely, 113 N. Y. 128; Stephens v. Bd. of Education, 79 N. Y. 183; People ex rel. Briggs v. Hanley, 226 N. Y. 453; Seagle v. Barreto, 190 App. Div. 549 ; 231 N. Y. 586;
      Calumet & Hecla Mining Co. v. Equitable Trust Co., 275 Fed. Rep. 552; Hindmarch v. Hoffman, 127 Penn. St. 284; Oklahoma St. Bank v. Bank of Central Arkansas, 120 Ark. 369; Mason v. Waite, 17 Mass. 560; Importers & Traders Nat. Bank v. Peters, 123 N. Y. 272; Hauptmann v. First Nat. Bank, 83 Hun, 78; 146 N. Y. 376; Abraham v. American Exchange Nat. Bank, 191 App. Div. 594.)

      Oscar Lawrence and Murray L. Jacobs for respondent.
    The plaintiffs are not entitled to judgment herein — they cannot take the funds without any adjudication against the depositor. (Mahr v. N. U. F. Ins. Society, 127 N. Y. 452; Helene v. Corn Exchange Bank, 96 App. Div. 392; Bayer v. Bayer, 215 App. Div. 454; Gugel v. Hiscox, 216 N. Y. 145.)
   O’Brien, J.

Maude E.Tefft was treasurer of the Kingston Trust Company of Kingston, Rhode Island, of which plaintiffs are receivers. She contracted with Cragg-Matthews and Company of New York to purchase for her personal account certain shares of stock in an oil company. Having no funds on deposit with the trust company, she drew, under a fictitious name, two checks aggregating $12,000 on that institution to the order of Cragg-Matthews and Company. The payee did not deliver the stock to her nor give any other consideration, but deposited the checks with defendant bank for collection. Through a second fraud committed by Miss Tefft, assuming to act this time in her capacity as treasurer of the trust company, defendant, without notice of the fraud, was enabled to collect them and now, after notice, retains on deposit a balance of $6,843.14 of the proceeds. As far as this record shows, the bank has possession of moneys misappropriated from the trust company and deposited by a payee who gave no consideration. Defendant makes no claim of title, pleads no separate defense nor produces any evidence tending to disprove the allegations of the complaint. It insists, as its sole argument, that in the absence of Cragg-Matthews and Company as a party defendant no action can be maintained against it. The Trial Term supported its contention and directed a verdict in its favor. That judgment has been modified by the Appellate Division to the extent of providing that it is not upon the merits and is without prejudice to an action against defendant in which Cragg-Matthews and Company shall be joined as a party defendant.

On the facts as disclosed by this record, the payee is not a necessary party. The presence of no other person is required finally to determine the issue. (Chapman v. Forbes, 123 N. Y. 532, 544.) The money deposited with defendant by Cragg-Matthews is shown by uncontradicted evidence to belong to the Kingston Trust Company. The payee is not defendant’s creditor. The trust company is the creditor. The evidence proves that the payee never acquired title to the proceeds of the checks, for the payee obtained them without consideration after the checks had been fraudulently uttered. (Stephens v. Board of Education, 79 N. Y. 183, 186; People ex rel. Briggs v. Hanley, 226 N. Y. 453, 458.) Nothing in the case contradicts plaintiffs’ evidence. In the face of such proof, there is no defense to the action. That the bank might be held liable in some other action, if instituted against it by Cragg-Matthews and different proof made in such an action, cannot change the conclusion that in this action plaintiffs have shown themselves to be the bank’s creditors. Defendant might have protected itself from future litigation by bringing in the payee as a party defendant in the present action. Not since the service of its answer has it made an effort to do so. No heavier burden rests upon plaintiffs to sue the payee than rests upon defendant to make the payee a party. No adverse claimant is found, and so the bank must put the plaintiffs to their proof, and wage the contest as it can. (Scheffer v. Erie Co. Savings Bank, 229 N. Y. 50, 54.) The proof has been produced and shows that the bank owes the trust company the balance remaining on deposit.

The judgment of the Appellate Division and that of the Trial Term should be reversed and judgment directed for plaintiffs in the sum of $6,843.14, with interest from February 19, 1925, and with costs in all courts.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur.

Judgment accordingly.


author: Pound, J.

text:
    The People of the State of New York, Respondent, v. Solomon C. Sugarman, Appellant.
    Crimes — trial — evidence — depositions — waiver — accused may waive right to confrontation by complaining witness to obtain favor of adjournment of trial — loss of exhibits offered upon taking of deposition — denial of motion to suppress deposition reversible error —• deposition may not be pieced out by extrinsic evidence of correctness of photostatic copies of exhibits — secondary evidence of deposition limited to certified copy.
    1. A condition to adjournment of a criminal trial, that defendant waive his right to confrontation by the complaining witness and consent that he be examined conditionally on behalf of the People, is proper. The right of confrontation is a privilege extended to the accused which he may waive.
    2. Where, however, on the trial of the case, it appeared that exhibits offered on behalf "of the People and of the defendant, at the taking of the deposition, had been lost, a motion to suppress the deposition should have been granted and its use on the trial after denial of such a motion was reversible error. The fundamental right of the defendant to be confronted by the witnesses against him is not waived except by strict compliance with the law. The loss of the exhibits destroyed the completeness of the deposition and it may not be pieced out by extrinsic evidence of the correctness of photostatic copies which were not before the witness and were no part thereof. Secondary evidence of depositions is expressly limited to certified copies. (Code Grim. Pro. § 631.)

      People v. Sugarman, 222 App. Div. 726, reversed.
    (Argued May 7, 1928;
    decided May 29, 1928.)

      Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 2, 1927, which affirmed a judgment of the Court of General Sessions in the i county of New York, rendered upon a verdict convicting the defendant of the crime of forgery in the second degree.

      John J. Curtin and Wesley S. Sawyer for appellant.
    The judgment should be reversed because of the denial of defendant’s motion to suppress the deposition of G. P. Smith, and the making of the order of May 12, 1925, was an abuse of discretion and reversible error. (People v. Stollo, 191 N. Y. 42.)

      Joab H. Banton, District Attorney (Robert Daru of counsel), for respondent.
    The defendant caused the deposition of Smith to be taken and consented to it; the court properly denied the motion to suppress the deposition; the motion to “ withdraw defendant’s waiver ” was likewise properly denied; the court had the power to order the taking of Smith’s deposition; the deposition was certified and introduced in evidence according to law. (People v. Fish, 125 N. Y. 136; People v. Penhollow, 5 N. Y. Cr. Rep. 41; 42 Hun, 103; People v. Gilhooley, 108 App. Div. 234; 187 N. Y. 551; People v. Bitusky, 155 App. Div. 139; People v. Browne, 118 App. Div. 793; Matter of Waverly Water Works Co., 85 N. Y. 478; Brownell v. Ruckman, 85 N. Y. 648; Smith v. Alker, 102 N. Y. 87.)
   Pound, J.

The indictment charges defendant with forgery, second degree, in two counts, i. e., one, that defendant, having in his possession a check for $25,000, dated June 26, 1919, made by S. Barkin payable to the order of George P. Smith, forged the indorsement of the name of the payee on the back thereof, and another, that he uttered the same.

Smith, whose signature defendant is charged with having forged, was a young man, somewhat under thirty years of age at the time of the transaction complained of. He had had business transactions with defendant, who was a lawyer. He had indorsed and made notes for defendant who claimed to be engaged in an enterprise with Smith, in connection with the purchase of war material from the United States government. Defendant asked him for $25,000.

Smith was entitled to receive $300,000 from the estate of his grandfather, under the terms of his will, on arriving at the age of thirty years. The trustees had power to advance money for his education and maintenance. They had made substantial advancements to him. He had made assignments of the fund as security for loans. Defendant testified that Smith was willing to raise $25,000 for the Washington enterprise and agreed to assign his interest in his grandfather’s estate as security; that the assignment was drawn up and signed by Smith; six notes were signed by Smith representing the loan in question and the money was obtained from Samuel Barkin, a money lender, who gave the check therefor payable to the order of Smith. Smith denied that he signed the assignment, or the notes, or that he indorsed the check. The money was deposited in Sugarman’s bank account by his brother and associate, Joseph H. Sugerman, and was drawn out by checks signed in defendant’s name by Joseph. The interest and stamps amounted to $433. Smith admitted that he gave defendant his check for this amount but says that he gave it to him for cash and that he was induced to add the words interest and stamps ” to carry out some purpose of defendant unconnected with the forgery here charged.

The People make no claim that defendant personally forged the disputed indorsement or uttered the check. The evidence tends to establish that Joseph H. Sugarman did so, being thereto aided and abetted by defendant. The defense is that the indorsement is the genuine signature of George P. Smith, arising out of a legitimate business transaction. A question of fact was thus presented for the jury. It cannot be said that there was no evidence of defendant’s guilt. The verdict is conclusive unless material error appears reviewably on the record.

I think that material error does appear. The court made an order on March 21, 1924, that the case be peremptorily set down for trial on March 24, 1924, if the defendant did not file a consent that Smith, the complaining witness, be examined conditionally on behalf of the People and waive his right to confrontation by the witness on the trial. The consent was filed to obtain an adjournment of the trial and the deposition of Joseph H. Sugarman as a witness for the defense. The latter deposition was not obtained and Joseph was not a witness on the trial. The condition was a proper one which defendant complied with to obtain a favor. He merely waived the right to be confronted by one of the People’s witnesses. The right of confrontation is a privilege extended to the accused which he may waive. (Diaz v. U. S., 223 U. S. 442.)

The deposition of Smith was taken by the People before one of the judges of the Court of General Sessions a year or more before the trial. Smith left the State and did not return. The deposition consisted of 274 pages of stenographer’s minutes. On the taking of the deposition the People offered sixteen written exhibits and the defendant offered five written exhibits. They included the check described in the indictment, written indorsement thereon; the assignment of Smith’s interest in his grandfather’s estate; six promissory notes signed in the name of Smith representing a loan of $25,000; a letter signed in the name of Smith to Barkin; directing him to deliver to defendant a check for the proceeds of the loan of $25,000; a concededly genuine check for the $433, for interest and stamps ” above mentioned; and five exhibits offered by defendant containing the genuine signature of George P. Smith, offered for the purpose of comparison of handwriting. The exhibits were not attached to and made a part of the deposition but were filed separately with the clerk of the Court of General Sessions. On the trial of the case it appeared that they had been lost and could not be introduced as a part of Smith’s deposition. Photostatic copies had been made by the district attorney of some of the exhibits including the check and the indorsement, but not of all of them. The People’s evidence tended to show the forgery of the several writings, made for the purpose of indicating that the check in question was part of a legitimate business transaction. Smith testified, in giving his deposition, that none of the People’s exhibits were signed by him except the check for $433. The deposition was used on the trial after a motion to suppress by reason of the loss of the exhibits had been made and denied and over defendant’s objection.

This, I think, was reversible error. The loss of the exhibits destroys the completeness of the deposition. ■ The original written exhibits which were before the witness had disappeared. Their place was taken in part by photostatic copies which were not before the witness when the deposition was taken. Secondary evidence of originals, even of a forged instrument, might in ordinary course be produced on the trial of a defendant for the forgery on establishing the loss of the primary evidence. (People v. Kingsley, 2 Cow. 522, 525; State v. Tilden, 242 Ill. 536; 31 L. R. A. [N. S.] 215.) That is not the point. Whüe a witness may by consent of the defendant be conditionally examined on behalf of the People in the manner and with the effect provided by title 12, chapter 3 of the Code of Criminal Procedure for taking examination of witnesses conditionally on behalf of the defendant (Code Crim. Pro. § 219), the fundamental right of the defendant to be confronted by the witnesses against him (Civil Rights Law [Cons. Laws, ch. 6], § 12; People v. Bromwich, 200 N. Y. 385) is not waived except by strict compliance with the law. The witness Smith did not have the photostatic copies of the documents before him and did.not testify in regard thereto when his deposition was taken. The deposition may not be pieced out by extrinsic evidence of the correctness of photostatic copies which were not before the witness and were no part of the deposition.

Secondary evidence of the exhibits in connection with the deposition was improperly received. The Code expressly limits secondary evidence of depositions to a certified copy thereof. (Code Grim. Pro. § 631.)

It is said that in civil cases there is no difference between lost depositions and any other written testimony if a proper foundation is laid for their admission. (Williams v. Richardson, 66 Fla. 234; 1916D Ann. Cas. note, p. 253.) “ The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code.” (Code Crim. Pro. § 392.) But in criminal cases depositions are an innovation on the common law. It is for the People to produce either the witness or his deposition or a certified copy thereof. (§ 631, supra.) When the right to be confronted by the People’s witnesses is waived, the waiver goes no further than the law prescribes.

On the trial objections were made to the introduction in evidence of the copies. They need not be considered. Assuming the propriety of admitting the deposition in connection with the photostatic copies, it does not appear that any substantial error was committed in the proof. The correctness of the copies was admitted on the trial. They were not used as standards of comparison by the witnesses. But the exception taken to the motion to suppress the deposition by reason of the loss of the exhibits was not waived. It was impossible to read the whole deposition on the trial. To suffer to go to the jury any evidence given by a witness on direct examination by the People where, without the fault of the defendant, the whole evidence cannot be submitted to it is error. (People v. Cole, 43 N. Y. 508.) The question is one of supreme importance. The loss of original exhibits, even after the trial, may, if the evidence is of a substantial nature, require the court on appeal to grant a new trial. (People v. Strollo, 191 N. Y. 42.) As the substituted copies of the original exhibits could not be received in connection with the deposition as the equivalent of the exhibits which were before the witness, the motion to suppress should have been granted.

The judgment of the Appellate Division and that of the Court of General Sessions should be reversed and a new trial ordered.

Crane, Andrews and O'Brien, JJ., concur; Cardozo, Ch. J., dissents; Lehman and Kellogg, JJ., not sitting.

Judgments reversed, etc.


author: Lehman, J.

text:
    Theodore I. Garfein, Respondent, v. Michael A. McInnis, Appellant, Impleaded with Another.
    Process — service — specific performance — summons in action for specific performance may be served out of the State — court may grant judgment in such an action which will result in transfer to plaintiff though defendant fail to obey — motion to set aside service of summons and complaint on nonresident without State, in action for specific performance of contract to convey real estate, properly denied.
    1. The language of the statute (Civ. Pr. Act, §§ 232, 235) providing that in an action “ where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in or lien upon specific real or personal property within the State or that such an interest or lien in favor of either party be enforced, regulated, defined or limited, or otherwise affecting the title to such property,” the summons may be served out of the State, is sufficiently broad to cover an action for specific performance of a contract to convey real property within this State.
    2. In such an action the court may grant a judgment which will operate upon the property itself and result in a transfer of the title to a successful party though the defendant fail or refuse to obey a command of the judgment directed to him. (Civ. Pr. Act, § 979.) The court, therefore, in such an action obtained jurisdiction over a nonresident by personal service upon him in a foreign State of the summons and complaint and a motion to set aside such service was properly denied.

      Oarfein v. Mclnnis, 223 App. Div. 28, affirmed.
    (Argued April 30, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 15, 1928, which affirmed an order of Special Term denying a motion by defendant-appellant for an order setting aside the service on him of the summons and complaint.
    The following questions were certified:
    “ 1. Has any jurisdiction been obtained by the Supreme Court of New York State in an action brought by the vendee in the Supreme Court, Westchester county, for the specific performance of a contract to convey real property situated in said county of ■ Westchester, where the vendor is a resident of Connecticut, and has not been personally served within the State of New York, nor appeared in the action, but was personally served with a summons and verified complaint in the State of Connecticut?
    “ 2. Under the circumstances as set forth in the above question, if the court decrees specific performance for the vendee, can the court direct the sheriff to convey the property, under section 979 of the Civil Practice Act? ”

      Thomas F. Hennessy for appellant.
    An action for the specific performance of a contract is an action in equity, and in the absence of a statute giving jurisdiction in rem, equity acts in personam merely. (Hart v. Sansom, 110 U. S. 151; Snell v. Hill, 263 Ill. 211; Fowler v. Fowler, 204 Ill. 82; Spur v. Scoville, 57 Mass. 578; Felch v. Hooper, 119 Mass. 52; Merrill v. Beckwith, 163 Mass. 503; Silver Camp Mining Co. v. Dickert, 31 Mont. 488; Gardner v.
      Ogden, 22 N. Y. 327; McLaughlin v. McLaughlin Real Estate Co., 162 App. Div. 644; Patrick v. Jones, N. Y. I . J. Feb. 9, 1927; Smilowitz v. Watt, N. Y. L. J. April 8, 1927.) There is no statute in New York allowing service by publication or personal service outside of the State, on a non-resident vendor or vendee in an action for the specific performance of a contract to convey real property. (Patrick v. Jones, N. Y. L. J. Feb. 9, 1927; Smilowitz v. Watt, N. Y. L. J. April 8, 1927; Matter of City of New York [Edgewater Road], 138 App. Div. 203; 199 N. Y. 560; Bruce v. Tilson, 25 N. Y. 194; Merrill v. Beckwith, 163 Mass. 503.) Even conceding that section 232, subdivision 6, includes specific performance actions, it is ineffective against non-residents, not within the jurisdiction of the court. (Smilowitz v. Watt, N. Y. L. J. April 8, 1927.)

      Aaron Simmons for respondent.
    The service of the summons and complaint in the State of Connecticut was proper. (Matter of City of New York, 138 App. Div. 203; 199 N. Y. 560; Hollander v. Central M. & S., 109 Md. 131; Fetch v. Hooper, 119 Mass. 52.)
   Lehman, J.

In an action for the specific performance of an alleged contract to convey real estate in the State of New York, service of the summons and complaint has been made in the State of Connecticut, upon a resident of that State. The motion of the defendant to set aside such service has been denied.

In an action where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in or lien upon specific real or personal property within the State or that such an interest or lien in favor of either party be enforced, regulated, defined or limited, or otherwise affecting the title to such property,” the summons may be served out of the State. (Sections 232 and 235, Civ. Prac. Act.) The language of the statute is sufficiently broad to cover an action for specific performance. Service without the State is sufficient to give the court jurisdiction to grant a judgment in rem binding upon a non-resident defendant so served. It does not, however, bring the non-resident defendant’s person within the jurisdiction of the court. A decree in personam “ can be supported against a person who is not a citizen or resident of the State in which it is rendered only by actual service upon him within its jurisdiction. (Hart v. Sansom, 110 U. S. 151.) The question presented by this appeal is whether a judgment in an action for specific performance is only a decree in personam against the party who has agreed to convey property, or whether the court in such an action may grant a judgment which will operate upon the property itself and result in a transfer of the title to a successful party though the defendant fail or refuse to obey a command of the judgment directed to him.

That a court of chancery acts only upon the person is a recognized maxim of equity jurisprudence. (Ewing v. Orr Ewing, L. R 9 App. Cas. 34. See Cook on Powers of Courts of Equity, 15 Columbia Law Review, 36.) A decree of chancery spoke in terms of personal command to the defendant, but its directions could only be carried into effect by his personal act. * * * The decree never stood as a title in the place of an actual conveyance by the defendant; nor was it ever carried into effect by any officer acting in the defendant’s name.” (Pomeroy on Equity Jurisprudence, section 428.) In jurisdictions where the decrees of a court of equity still retain the traditional form and effect of a mere command, a court of equity cannot obtain jurisdiction over a nonresident by service without the State. (Hart v. Sansom, supra; Spurr v. Scoville, 3 Cush. [Mass.] 578.)

It has been doubted whether the jurisdiction of courts of equity was ever subject to' any inherent limitation that its decrees must operate solely in personam, though the early chancellors adopted the method of acting, as they said, upon the conscience of defendants.” In this country “ the statutes of the several states have virtually abolished the ancient doctrine that the decrees in equity can only act upon the person of a party, and have generally provided that in all cases where the ends of justice require such an effect, and where it is possible, a decree shall either operate ex proprio vigore to create, transfer, or vest the intended right, title, estate, or interest, or else that the acts required to be done in order to accomplish the object of the decree shall be performed by an officer of the court acting for and in the name of the party against whom the adjudication is made.” (Pomeroy’s Equity Jurisprudence, sec. 135.) “ A bill for the specific execution of a contract to convey real estate is not strictly a proceeding in rem, in ordinary cases; but where such a procedure is authorized by statute, on publication, without personal service of process, it is, substantially, of that character.” (Boswell’s Lessee v. Otis, 50 U. S. 336.)

It has been held that the power of a court of equity to pronounce a judgment in rem is not dependent upon statute and may be exercised against a non-resident whenever the Legislature has authorized constructive service. (Tennant’s Heirs v. Fretts, 67 West Va. 569.) In Silver Camp Mining Co. v. Dickert (31 Mont. 488) the court reached opposite conclusion. We need not now decide between such conflicting decisions. A court of equity, undoubtedly, may by constructive service, in accordance with statute, acquire jurisdiction over a nonresident in an action for specific performance whenever it has power, whether granted by statute or inherent, to make a decree which will result directly, or through conveyance by an officer, in the transfer of title or interest in land. (Hollander v. Central Metal & Supply Co., 109 Md. 131; Felch v. Hooper, 119 Mass. 52. See, also, 2 Story’s Equity Jurisprudence [14th edition], 743.)

In this State the Legislature has provided in section 979 of the Civil Practice Act that where a “ judgment directs a party * * * to convey real property, if the direction is disobeyed, the court, by order, besides punishing the disobedience as a contempt, may require the sheriff * * * to convey the real property, in conformity with the direction of the court.” A decree of the court is enforceable not merely by punishment of a disobedient party but may be carried into effect by action of the sheriff operating directly upon the property. It may be that the primary purpose of the Legislature was to grant additional force to a decree in a case where the court had acquired jurisdiction of the person of a disobedient party. Its effect extends beyond such a case. It has changed the nature of the action from an action in personam,, to an action substantially in rem. Though the court cannot by constructive service obtain jurisdiction of the person of a non-resident defendant and cannot compel such a defendant to obey its decree, where the court has the power to make a decree which will affect the interests of a party in property within the State, whether that party obeys the decree or not, the action is not purely in personam,. The court’s decree acts upon the property as well as the person of the nonresident defendant. In such case the objection that the court by constructive service obtains no jurisdiction over the person of a non-resident is without force. The Legislature has expressly provided that in an action for specific performance a court may enforce its decree by other means than direction to the defendant.

The order should be affirmed, with costs, and the questions certified answered “ Yes.”

Cabdozo, Ch. J., Pound, Cbane, Andbews and O’Bbien, JJ., concur; Kellogg, J., dissents.

Order affirmed, etc.


text:
    Rome Metallic Bedstead Company, Respondent, v. Anable Avenue Factory Corporation, Defendant, and Degnon Realty and Terminal Improvement Company, Appellant.
    Contract —■ guaranty — landlord and tenant — guaranty by landlord that .floor of building to be erected for tenant shall carry specified load — landlord not bound to indemnify tenar. for sagging of floor from other cause — complaint in action to recover cost of constructing new floor dismissed where necessitated by general subsidence of soil in neighborhood.
    1. The obligation of a lessor which had agreed to erect a building for its tenant and guaranteed that the ground floor of the building to be erected by it should be “ designed to carry a dead load of 2,000 pounds on each square foot,”, and that such a load if placed there “ will not injure the superstructure ” nor cause the floor to sag at any place more than one inch, does not extend to indemnity for a sagging of the floor due to other causes against which it was not bound to provide.
    2. Where, therefore, several years after the erection of such a building, owing to a general subsidence of the ground under and in a considerable section surrounding the building, the ground floor became so damaged that the tenant was compelled to replace it, the complaint in an action to recover its damages should be dismissed, where there is no claim that the building was negligently erected or that the ground floor could not have carried the specified load and it does not appear from the evidence that in the erection of the building the defendant should have foreseen the possibility that the condition of the land might change, and should have provided against such a contingency.

      Rome Metallic Bedstead Co. v. Anable Avenue Factory Corp., 219 App. Div. 730, reversed.
    (Argued May 10, 1928;
    decided May 29, 1928.)
    Appeal from so much of a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 21, 1927, as affirms a judgment in favor of plaintiff entered upon a verdict.

      Charles Adkins Baker for appellant.
    The letter of March 6, 1916, assuming it to be effective, was at most an insertion or addendum to the plans or specifications. It was a provision for the type and form of construction, not a warranty of permanent endurance and maintenance. (Howard v. Doolittle, 3 Duer, 464; Fleischman v. Toplitz, 134 N. Y. 349; Mc Knight Flintic Stone Co. v. Mayor, etc., 160 N. Y. 72; Tidewater Bldg. Co. v. Hammond, 144 App. Div. 920; Dwyer v. Mayor, etc., 77 App. Div. 224; Kuhs v. Flower City Tissue Mills Co., 104 Misc. Rep. 243.)

      Harry J. Ahlheim for respondent.
    The guaranty contained in the letter of March 6, 1916, was a continuing one. (Jenet v. D. & H. C. Co., 136 N. Y. 593; Franklin v. Brown, 118 N. Y. 110; Dearstine v. Dunckel, 130 Misc. Rep. 281; Condict v. Onward Constr. Co., 210 N. Y. 88; Kuhs v. Flower City Tissue Mills Co., 104 Misc. Rep. 243.)
   Lehman, J.

On the 30th day of November, 1915, the plaintiff and the Degnon Realty and Terminal Improvement Company executed two instruments under seal. One instrument constituted a lease by the Degnon Realty and Terminal Improvement Company, to the plaintiff, of premises in Queens county for the term of twenty-one years beginning October 1st, 1916. In the second instrument the lessor agreed to erect a building upon the leased premises before the beginning of the term. The building to be erected is described in the instrument as follows: three story reinforced concrete factory building, generally similar to the building adjacent known as Brett Building and Studebaker Building, in size about 364 feet x 100 feet, irregular, with penthouse about 20 feet x 250 feet, floor load capacity 200 pounds per square foot, twenty foot spans between columns, with two elevators, sprinkler system, necessary plumbing and heating; the whole to be constructed in strict accordance with the plans and specifications of William Higginson, Architect, which plans and specifications shall be subject to the approval of each of the parties hereto, and when so approved shall be signed by each of the parties and shall then constitute a part of this agreement.”

In March, 1916, the Degnon Realty and Terminal Improvement Company was engaged in the construction of the building upon the premises it had agreed to lease to the plaintiff. There is evidence that the plaintiff had not at that time approved the plans for the building. A floor load capacity of 200 pounds per square foot on all the floors of the building was insufficient for the purposes of the business which plaintiff intended to conduct therein. Plaintiff refused to approve any plans for a building which would not provide a floor load capacity of 2,000 pounds per square foot on the ground floor.

In order to satisfy the plaintiff, Degnon Realty and Terminal Improvement Company then delivered to the plaintiff the following letter:

“ Quotations 277,
“ Rome Metallic Bedstead Company,
“ #418 West 25th Street,
“ New York, N. Y.
Attention Mr. Myers.
Gentlemen.— With reference to the building which we are erecting for you on Anable Avenue, Long Island City, would state that our understanding of the plans and specifications prepared by William Higginson, is that the ground floor is designed to carry a dead load of 2,000 pounds on each square foot, and that such a load if placed there by you will not injure the superstructure. It, however, may cause the floor to sag at various places not to exceed a depth of one inch. The conditions as enumerated above we guarantee.
“ Very truly yours,
“ DEGNON REALTY & TERMINAL IMPROVEMENT COMPANY (Signed) E. S. Nugent.”
“ ESN :JJC.

The building was completed and the plaintiff took possession of the leased premises. There is no claim that the building was negligently erected or that at the beginning of the term the ground floor could not have carried a dead load of 2,000 pounds on each square foot without injury to the superstructure. At some period — perhaps more than a year — thereafter, the ground under the building and in a considerable section of the city surrounding the building began to subside. The cause of the subsidence is not explained. Expert witnesses do no more than conjecture, but it does appear that the subsidence bears no relation to the weight placed upon the ground or building. It took place in the streets as well as under this and other buildings. The result of the subsidence of the ground was that the floor of the building sank with the ground upon which it was built. The damage grew greater as time passed, and seven years after the beginning of the term the plaintiff was compelled to replace the concrete floor. For the consequent damages the plaintiff has recovered judgment.

Under the terms of the formal sealed instruments between the parties, Degnon Realty and Terminal Improvement Company was under no obligation to keep the building, which it had agreed to erect, in repair. Its obligation was complete when the building was erected. The plaintiff’s cause of action is based upon the claim that by its letter of March, 1916, Degnon Realty and Terminal Improvement Company wrote into its contract a continuing guaranty that the floor would not sag at any point more than one inch.

The defendant urges, upon several grounds, that the letter cannot change or add to the obligations previously embodied in formal instrument under seal. We do not pass upon that contention now. Under a fair construction of the terms of the letter, even if such terms had been embodied in the sealed instrument, the defendant has given no guaranty that the floor of the building to be erected by it would not sag because the ground below the building subsided.

The subject-matter of the agreement between the parties is the erection of a building. The defendant guaranteed that the ground floor of the building to be erected by it should be designed to carry a dead load of 2,000 pounds on each square foot,” and that such a load if placed there “ will not injure the superstructure ” nor cause the floor to sag at any place more than one inch. There is nothing in the evidence to indicate and, indeed, no claim is made that the building was so constructed that the ground floor could not carry a dead load of 2,000 pounds without injury to the superstructure, or that any load placed upon the floor would cause it to sag. The sagging of the floor which occurred some years thereafter was not caused or affected by any load placed upon it or by any weakness inherent in the building. Neither cause nor effect was confined to this building, and it does not appear from the evidence that in the erection of the building the defendant should have foreseen the possibility that the condition of the land might change, and should have provided against such a contingency. The defendant guaranteed that the ground floor would not be caused to sag more than one inch by the placing of a specified weight upon it. Its obligation, even if otherwise enforceable, does not by its terms extend to indemnity for a sagging of the floor due to other causes against which the defendant was not bound to provide.

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

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

Judgments reversed, etc.