author: O’Brien, J.

text:
    Harry J. Bareham, Appellant, v. City of Rochester et al., Respondents.
    Constitutional law — Home Rule — municipal corporations — Rochester (city of) — validity of local law providing for nomination and election of councilmen and appointment of city manager — no conflict with section 2 of article 10 of Constitution — local law in harmony with section 1 of article 12 — no incompatibility between local law and section 1 of article 3 — prohibition of section 18 of article 3 not violated — Election Law not a statute applicable alike to all cities of State — municipality empowered under Home Rule Law to modify Election Law affecting election of local officers — local law invalid in so far as it supersedes Election Law without clearly specifying section, subsection or subdivision sought to be repealed —- local law relating to assessment and collection of city tax valid.
    1. Sections 1 to 20 of a local law adopted by the city of Rochester, which provide for the nomination and election of councilmen, and section 90, which provides for the appointment of a city manager, do not conflict with the Constitution and there is no fatal inconsistency between them and any statute applicable alike to all the cities of the State.
    2. There is no conflict with section 2 of article 10 of the Constitution which commands that all city officers whose election or appointment is not provided for by the Constitution itself shall be elected by the electors of such cities or appointed by such authorities thereof as the Legislature shall designate for that purpose. Councilmen and city managers are not specified in the Constitution, but are clearly provided for in section 3 of article 12, which section allows every city to adopt local laws relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of all its officers.
    3. Harmony also exists between the local law and section 1 of article 12 of the Constitution which requires the Legislature to provide for the organization of cities. By passage of the City Home Rule Law (L. 1924, eh. 363) the Legislature has provided for the organization of all cities by giving the local governing bodies the right to make changes in the structure and form of their present organizations.
    4. The term “ mode of selection ” in section 3 of article 12 of the Constitution expresses an intent to allow a city to determine not only that it shall cause its officers either to be elected or appointed but connotes also that a municipality may define the precise method by which either an election or appointment shall be effected. This mode of selection does not result in any incompatibility between the local law and the provisions of section 1 of article 3 of the Constitution. The legislative power has been exerted in enacting the City Home Rule Law. The option which the Legislature by that act left open to cities has been accepted by Rochester. The Constitution and the Legislature say that the city may choose the mode of selection of its officers and the city has specified it.
    5. Neither has the prohibition of section 18 of article 3 of the Constitution been violated. The Legislature has not passed any private or local bill for “ the opening and conducting of elections or designating places of voting.” It passed a general law, the City Home Rule Law, applicable to every city in the State, by which each city is allowed to legislate in respect to the mode of selection of its officers.
    6. The Election Law (Cons. Laws, ch. 17) is not a statute applicable alike to all the cities of the State in respect to nominations and elections of city officers. Under the Home Rule Law a - municipality is empowered to modify an election law in so far as that law affects the property, government or affairs of the municipality, i. e., in so far as it affects the election of the local officers.
    7. But the city is without authority to supersede the legislative act except in the way indicated. Subdivision 1 of section 12 of the City Home Rule Law, as amended (L. 1925, ch. 397), requires that the statute, section, subsection or subdivision sought to be superseded by a local law shall be clearly specified. The local law in suit is, therefore, invalid in so far as it supersedes the provisions of the Election Law without compliance with provisions of the City Home Rule Law prescribing the form and manner of repeal.

      8. The provisions of the local law relating to the assessment and collection of the general city tax for the year 1928 áre valid.

      Bareham v. City of Rochester, 221 App. Div. 36, modified.
    (Argued June 7, 1927;
    decided July 20, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 24,1927, modifying and affirming as modified a judgment entered upon a decision of the court on trial at Special Term.

      Eugene J. Dwyer for appellants.
    The provisions of the local law for the nomination and election of councilmen and appointment of a city manager are repugnant to article 10, section 2, article 12, section 1, article 3, section 18, and article 3, section 1, of the New York State Constitution. (Matter of Brenner, 170 N. Y. 185; People v. Pelham, 215 N. Y. 374.) All provisions.of the local law in conflict with the Election Law are void. (Lynn v. Nichols, 122 Misc. Rep. 170; People v. President of Wappingers Falls, 83 Hun, 130; Matter of Ahern v. Elder, 195 N. Y. 493; Matter of McCabe v. Voorhis, 243 N. Y. 401; Sturgis v. Spofford, 45 N. Y. 446; State Board v. Bellinger, 138 App. Div. 12.)

      Clarence M. Platt, Corporation Counsel (Howard Lee McBain and Isaac Adler of counsel), for respondents.
    The provisions of article I (§§ 1-20) of the local law, which provide a plan of so-called non-partisan nominations and elections' for members of the city council, are not void because of conflict with the State Election Law. (People ex rel. Krulish v. Fornes, 175 N. Y. 114; Vroman v. Fish, 181 App. Div. 502.) The provisions of. the Rochester local law relating to the nomination and election of councilmen are not in violation of article 3, section 18, of the Constitution, which prohibits the Legislature from passing “ a private or local bill ” providing for “ the opening or conducting of elections.” (Matter of Ahern v. Elder, 195 N. Y. 493; Lynn v. Nichols, 122 Misc. Rep. 170.) The Rochester local law is not unconstitutional in that the provisions thereof relating to the election of councihnen and appointment of other city officers are in violation of article 10, section 2, of the Constitution. (People ex rel. Carter v. Rice, 135 N. Y. 473; People ex rel. W. E. & C. Co. v. Metz, 193 N. Y. 148; People ex rel. McClelland v. Roberts, 148 N. Y. 360; Matter of Seeley v. Stevens, 190 N. Y. 158.) The City Home Rule Law is not in conflict with article 12, section 1, of the State Constitution. (Bank of Chenango v. Brown, 26 N. Y. 467; Townsend v. City of New York, 16 Hun, 362; 77 N. Y. 572; Bank of Rome v. Village of Rome, 18 N. Y. 38; People v. Metz, 193 N. Y. 148.)
   O’Brien, J.

The common council of the city of Rochester, assuming to exercise the authority conferred upon all cities of the State by article 12, sections 2 and 7, inclusive, of the Constitution and by chapter 363, Laws of 1924, enacted a local law superseding many provisions of its charter and of other statutes and radically changing the form of its government. Plaintiff, a taxpayer of that city, alleges that the whole local law is void and demands a declaratory judgment to that effect and an injunction to restrain the enforcement of the local law. Such parts of the local law as were considered by the Appellate Division, with the exception of paragraph 2 of section 95, which attempts to disqualify for appointment all persons who within one year previous to appointment have held elective office, were declared valid. Jurisdiction in an action for a declaratory judgment is discretionary (Civ. Pr. Act, § 473; Rules Civ. Pr. 211, 212). Likewise in an action for an injunction. We decline to exercise any broader jurisdiction at this time than was entertained by the courts below. Two issues, requiring prompt decision, relate to the validity of those sections which deal with nominations and elections of the newly created municipal officers and with the assessment and collection of the general city tax for the year 1928. Again, the Home Rule article of the Constitution and the City Home Rule Law (Cons. Laws, ch. 76) claim our interpretation. (See Browne v. City of New York, 241 N. Y. 96; Matter of McCabe v. Voorhis, 243 N. Y. 401; Schieffelin v. Berry, 243 N. Y. 603.)

Under the Rochester charter (Laws of 1907, chapter 755, as amended), some of the city officers were appointed by the mayor. Most of them were elected by the people. The local law provides by section 61 for the election by the electors of the city of five councilmen-at-large and for the election of four district councilmen by the electors of the four city districts. These nine officers are declared" by section 60 to constitute the common council and, pursuant to section 90, they shall select and may suspend or remove the city manager who is therein described as the chief administrative officer of the city. His extremely broad powers are enumerated in sections 91, 93 and 94. Upon the council, as provided by sections 65, 66, 67 and 68, is also conferred the authority and imposed the duty of selecting the mayor, an officer vested with slender power, as well as the vice-mayor and city clerk. The basic structure of the new government, therefore, is the council and the city manager. It is the validity of the proposed manner of the selection of the occupants of these offices that we must first consider.

Are sections 1-20 of the local law, which provide for the nomination and election of councilmen, and section 90, which provides for the appointment of a city manager, inconsistent with the Constitution or with any statute applicable alike to all the cities of the State? Appellant argues that they do conflict with article 10, section 2, article 12, section 1, article 3, section 18, and article 3, section 1, of the Constitution and with the Election Law. We think that they do not conflict with the Constitution and that no fatal inconsistency exists between them and the Election Law.

Article 10, section 2, of the Constitution commands that all city officers whose election or appointment is not provided for by the Constitution itself shall be elected by the electors of such cities or appointed by such authorities thereof as the Legislature shall designate for that purpose. Councilmen and city managers are not specified in the Constitution, but specific mention or minute description is not the subject with which the Constitution is concerned. This part deals with city officers whose election or appointment is not “ provided for ” by it. Surely, councilmen and city managers, as well as innumerable other municipal officers concerning whom the Constitution is silent, are clearly provided for in article 12, section 3. This new section allows every city to adopt local laws relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of all its officers. If article 12, section 3", could be said to be inconsistent with article 10, section 2, it would have the effect, as a later enactment, to modify the earlier one. Those parts of the local law assailed as inconsistent with article 10, section 2, derive their authenticity from chapter 363, Laws of 1924, section 11, which, in turn, is valid in its relation to article 12, section 3. This section, as part of the Constitution, cannot be inconsistent with itself. The local law springs from the Home Rule statute and that statute descends from the Constitution. A different interpretation of the combined effect of article 10, section 2, and article 12, section 3, would tend toward an unreasonable result and would defeat the purpose of the Home Rule amendment.

Harmony exists also between the local law and article 12, section 1, of the Constitution. No discord can be discerned. This section casts a duty upon the Legislature to provide for the organization of cities. The Legislature has fulfilled that obligation. First, it enacted the charter of the city of Rochester (Laws of 1907, chapter 755), and later by the passage of the City Home Rule Law (Laws of 1924, chapter 363) it provided further for a different organization of that city and of all other cities by giving the local governing body the right to make changes in the structure and form of the present organization. The local law under review does not provide for organization. It organizes. The Constitution by article 12, section 1, and the statute by chapter 363, Laws of 1924, have made the provision. The local law merely puts into operation an organization for which the Legislature has provided.

Article 3, section 1, and article 3, section 18, may be considered together and in relation to article 12, section 3. Article 12, section 3, of the Constitution, as we have recited, imparts authority to every city to adopt local laws, not inconsistent with the Constitution and laws of the State, relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of all officers and employees of the city. Section 11 of the City Home Rule Law (Laws of 1924, chapter 363) embraces the same grant of power. The term “ mode of selection ” expresses an intent to allow a city to determine not only that it shall cause its officers either to be elected or appointed but connotes also that a municipality may define the precise method by which either an election or appointment shall be effected. To hold that the expression restricts municipal action merely to a choice of election or appointment would, we think, place a narrower interpretation on that phrase than the Constitution and the statute intended. We find no contrary doctrine declared in Sturgis v. Spofford (45 N. Y. 446) nor in People v. Dooley (171 N. Y. 74), cases cited by appellant. The better view is that cities are empowered by the new constitutional provision not only "to make this choice but are authorized to direct the manner by which their officers shall be enabled to assume their positions. According to the direction of section 31, City Home Rule Law, we are impelled toward a liberal construction. The right to select and to define the manner of election or appointment is, however, limited by the requirement that the method must not be inconsistent with the Constitution or with statutes which are applicable to all cities and that it must not conflict with the procedure directed by the City Home Rule Law itself. This mode of selection, as the term is construed by us, does not result in any incompatibility between the local law and the provisions of article 3, section 1, and article 3, section 18, of the Constitution. The legislative power vested in the Senate and Assembly, as declared in article 3, section 1, has been exerted by those houses in enacting the City Home Rule Law. The option which the Legislature by that act left open to cities has been accepted by Rochester. The Constitution and the Legislature say that the city may choose the mode of selection of its officers and the city has specified it. The principle of the legislative authorization and of the municipal action does not differ from the doctrine of Cleveland v. City of Watertown (222 N. Y. 159). Here the authority is even broader because, under the Constitution as it existed at the time of the decision in the Cleveland case, any semblance of delegation of legislative power to make charters was prohibited; now, pursuant to article 12, sections 3 and 5, municipal influence has been perceptibly expanded. Section 5 sanctions the bestowal by the Legislature of rights more extensive than those specifically enumerated in section 3. Such additional rights have been conferred by sections 11, 20 and 36 of the City Home Rule Law. The wide powers to adopt charters granted by section 20 were theretofore unknown. Neither has the prohibition of article 3, section 18, of the Constitution been violated. The Legislature has not passed any private or local bill for the opening and conducting of elections or designating places of voting.” It passed a general law, the City Home Rule Law, applicable to every city in the State, by which each city is allowed to legislate in respect to the mode of selection of its officers.

Appellant argues that, because much of the substance of the local law conflicts with the Election Law, the statute must prevail and the local law is void. This argument would be unanswerable if the Election Law were, in so far as it regulates the nomination and election of city officers, such a statute as in terms and in effect applies alike to all cities. Section 130 of the Election Law (Cons. Laws, ch. 17) excludes it from that class. This section limits its operation when it declares that this article shall not repeal nor affect the provisions of a statute, general or local, prescribing a particular method of making nominations of candidates for certain school or city offices.” The Legislature has enacted several local statutes, applicable only to certain cities, whereby nominations and elections of city officers are authorized or regulated in a manner different from the general scheme defined in the Election Law. That law, therefore, is not a statute applicable alike to all the cities of the State in respect to nominations and elections of city officers. Yet, it does apply to Rochester until it shall be superseded by the Common Council in the manner required by the City Home Rule Law. The local statutes existing by legislative action abolish the party primary, forbid the display of party emblems or devices and provide for the non-partisian election of city officers. (Laws of 1914, chapter 217, title IV, sections 70-99, Buffalo; Laws of 1915, chapter 170, section 18, Mechanicville; Laws of 1916, chapter 229, sections 100-105, Saratoga Springs; Laws of 1916, chapter 172, sections 202-206, Sherrill; Laws of 1921, chapter 678, section 18, Batavia; Laws of 1923, chapter 665, section 12-a, Jamestown.) In principle the local law of Rochester is apparently modelled upon them. The legislative construction of the Constitution respecting the validity of these various statutes, apparently unattacked as they have been for several years, is entitled to great weight. (People ex rel. Einsfeld, v. Murray, 149 N. Y. 367, 376; People v, Schweinler Press, 214 N, Y. 395; Schieffelin v. Hylan, 236 N. Y. 254, 264.) We cannot say that they are unconstitutional. On the contrary, we believe them to be valid. The municipality is empowered to modify an election law in so far as that law affects the property, government or affairs of the municipality, i. e., in so far as it affects the election of the local officers. It cannot, of course, modify the Election Law in respect to other officers, for as to these the Election Law is not one that regulates the municipal government or affairs.

In one respect we think that the present form of the local law pertaining to nominations and elections cannot be approved. Section 12, subdivision 1, of the City Home Rule Law warns local legislatures of the penalty for failure to comply with its command. The warning is not perfectly clear and the command is somewhat faint and indirect. Nevertheless we think that the warning is visible and the command audible. Section 12 says that any local law adopted pursuant to this chapter may specify any provision of an act of the Legislature by reference to chapter number, year of enactment, title of statute, section, subsection or subdivision, which provision relates to the subject matter of such local law and does not in terms and in effect apply alike to all cities, and which it is intended to supersede by such local law; and upon the taking effect of such local law, such provision of any such act of the Legislature so specified shall cease to have any force or effect in such city.” By chapter 397, Laws of 1925, this subdivision was amended by adding: Such a superseding local law may contain the text of such statute, section, subsection or subdivision and may indicate the changes to be effected in its application to such city by enclosing in brackets the matter to be eliminated therefrom and italicizing or underscoring new matter to be included therein.” In Matter of McCabe v. Voorhis (243 N. Y. 401, 414, 415) the court said: If it is intended to supersede by a local law a provision of an act of the Legislature which does not in terms and in effect apply alike to all cities, such local law shall specify any provision of such act of the Legislature by chapter number, year of enactment, title of statute, section, subsection or subdivision which it is intended to supersede by a local law.”

The section is permissive; i. e., the change in the general law may be made by the local law in the way indicated. No other way is indicated. Hence the city is without authority to supersede the legislative act except in the way indicated. The existence of a duty to keep a local law free from ambiguity cannot be denied. Confusion would be intolerable if, in the case of every local law adopted throughout the cities of the State, no one could feel confident that local legislatures had intended to supersede an entire statute or only part of it. If a part, which part? The purpose of section 12, subdivision 1, of the City Home Rule Law. is to compel definiteness and explicitness in order that clarity shall result. Section 20 of the local law alludes to the Election Law, but not in such a way that one can perceive with reasonable certainty the particular sections of that law which it seeks to supersede. An earnest and attentive comparison of the Election Law with the Rochester charter and with the local law might result in knowledge respecting the sections of the Election Law intended to be superseded. On the other hand, we cannot be assured that such knowledge can be acquired except by resort to the courts and by the varying application of those intricate and sometimes conflicting rules which are said to elicit evidence of legislative intent. For this reason, the local law requires amendment by the inclusion of a clear declaration of intent to supersede such sections of the Election Law as the local law seeks to supersede. The right conferred upon cities by the new constitutional provision and by the City Home Rule Law is an extraordinary one. We recognize that sections 30 and 31 of the City Home Rule Law require liberal construction respecting the provisions of the act. Such direction cannot dispense with the obligation of substantial adherence to the statutory procedure. There was no such adherence here.

Are the provisions of the local law relating to the assessment and collection of the general city tax for the year 1928 valid? They may be so construed and we agree generally with the reason assigned by the learned justice at Special Term. Section 188 of the charter has not been wholly superseded by section 180 of the local law. Reading together the surviving parts of the present charter and supplemental provisions of the local law, a sufficiently plain implication respecting the rights of taxpayers to a hearing prior to April 2, 1928, is present. The duty of the assessors to hear grievances can be compelled by the courts.

The judgment of the Appellate Division should be modified by declaring the local law to be invalid in so far as it supersedes the provisions of the Election Law without complying with the provisions of the City Home Rule Law prescribing the form and manner of repeal, and as modified affirmed, without costs to either party.

Cardozo, Ch. J., Pound, Crane, Andrews and Kellogg, JJ., concur with O’Brien, J.; Lehman, J., concurs in the view that the provisions of the Election Law are not superseded by the inconsistent provisions of the local law, but dissents from that part of the opinion which holds that these provisions of the local law are separable and that the remainder of the local law is valid.

Judgment accordingly.


source: Caselaw Access Project

author: Cardozo, Ch. J.

license: Public Domain

text:
    Adolph C. Wappler, Respondent, v. The Woodbury Company, Appellant.
    Equity — judgment — assignment —■ plaintiff must have cause Of action for some relief at commencement of suit — assignee of judgment, while another assignment is outstanding, may not recover in action to enforce judgment on theory that pending action title to judgment was by a default revested in assignor — title to judgment not revested in assignor by failure of first assignee to make payment due pending action —• plaintiff’s interest subject to that of prior assignee.
    1. Even in courts of equity, the general rule is that a plaintiff must have a cause of action for some relief at the commencement of Ms suit. Such a right existing, the extent of the relief will be adapted to the situation at the time of the decree. The rule may be subject to exceptions in the interests of justice but there will be no departure therefrom to work an unrighteous forfeiture or to cause justice to miscarry.
    2. In the circumstances of this case a buyer did not forfeit his right to shares of stock by failing to make payment for them while the present suit was pending.
    3. The buyer was at liberty to suspend performance on Ms part while the seller in defiance of his bargain was enforcing the judgment which is the basis of this action. There was not even a technical default, and still less such a default as equity would use as the basis of a forfeiture.
    4. Plaintiff’s interest in the judgment, if any, is subject to that of the prior assignee. The earlier interest did not terminate automatically without reassignment or foreclosure, and the holder of that assignment is a necessary party to the determination of the controversy.

      Wappler v. Woodbury Co., 218 App. Div. 754, reversed.
    (Argued June 2, 1927;
    decided July 20, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 5, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

      William H. Chorosh and H. H. Nordlinger for appellant.
    The plaintiff Wappler never acquired legal title to the 1912 judgment. (Reed v. Barkley, 123 Misc. Rep. 635; Herribin v. Malackowski, 113 Misc. Rep. 100; Dingley v. Bon, 130 N. Y. 607; Dunn v. Dunn, 151 App. Div. 800; Moore v. LeMaire, 169 App. Div. 154.) The rule that equity will shape its relief according to the situation existing at the time of the trial does not justify the judgment appealed from. (Sherman v. Foster, 158 N. Y. 587; Shepard & Morse Lumber Co. v. Hurd, 55 App. Div. 627; Banigan v. Village of Nyack, 25 App. Div. 150; Farmers’ Loan & Trust Co. v. United Lines Telegraph Co., 47 Hun, 315; Tiffany v. Bowerman, 2 Hun, 643; Staunton v. Swann, 10 Civ. Pro. Rep. 12.) There is a defect of necessary parties to the action. (Hood v. Hood, 85 N. Y. 561; Ridgway v. Balsen, 72 Hun, 211; Mahr v. N. U. F. Ins. Soc., 127 N. Y. 452; Cook v. Lake, 50 App. Div. 92; Shaver v. Brainard, 29 Barb. 25.)

      Keyes Winter and John C, Pemberton for respondent.
    The plaintiff is entitled to a judgment in equity upon the facts as they are established at the time of the trial and not as of the date of filing of his complaint. (Breckenridge v. Carey, 195 App. Div. 156; Merrihew v. Kingsbury, 15 App. Div. 40; Ne-ha-sa-ne Park Assn. v. Lloyd, 25 Misc. Rep. 207; 45 App. Div. 631.) The courts below properly rendered judgment without directing C. Palmer Woodbury to be brought in as a party. (Matter of Boucker Co. v. Callahan Co., 218 N, Y. 321; Woodward v. Holland Medicine Co., 21 Civ. Pro. 23.)
   Cardozo, Ch. J.

In 1918, Robert Buggeln, for whom plaintiff is a “ dummy ” or an agent, sold to William A. Woodbury the entire capital stock of the Woodbury Company. The chief value of the stock was dependent upon the ownership of trade-marks then in litigation. Another corporation, the Andrew Jergens Company, made claim' to them as owner. Accordingly there were provisions in the contract whereby the terms of payment for the stock were proportioned to the menace of the suit. The total price was to be $6,000, of which $500 was paid in cash. The residue, $5,500, was not to be paid at all unless the Woodbury Company prevailed in its contest for the trade-marks. In the event of a final determination in its favor, $1,000 was to be paid within ninety days and the balance, $4,500, within fifteen months thereafter. There was, however, another menace in addition to the challenge of title to the trade-marks. A judgment for $15,000 had been entered against the company. Buggeln held this judgment for his own use in the name of his brother-in-law Clinton. To enforce it would wipe out the value of the shares. An agreement was, therefore, made whereby this judgment was assigned to one Hart, a “ dummy ” for Woodbury. If Woodbury paid the $5,500, the judgment was to be canceled. If Woodbury defaulted in payment, the stock and the judgment were to be given back to Buggeln or Buggeln’s nominee.

The United States District Court decided the trademark litigation in favor of the Woodbury Company. Payment for the stock was not yet due, for there was an appeal from the decree, and payment was not to be made until final determination. Even so, the rendition of the decree was a signal, it seems, to Buggeln to try to regain his shares by one method or another. At that time William A. Woodbury had assigned the shares to C. Palmer Woodbury, who also received from Hart an assignment.of the judgment. Buggeln brought a suit in the Supreme Court to rescind and cancel his sale of the shares upon the ground that the resale was a violation of a term of the agreement. The Supreme Court decided this suit against him. On the very day that the decision was announced he turned to' new devices. His brother-in-law, Clinton, had already assigned the $15,000 judgment to Hart, Woodbury’s nominee, who had assigned to C. Palmer Woodbury. Without a shadow of right, Buggeln, on the very day of the adverse decision, executed and filed another assignment of this same judgment, to a second dummy,” Wappler, the present plaintiff. Upon the basis of his pretended ownership of this judgment, Wappler brought this suit to enforce the judgment against the defendant corporation, to sequester its assets, and to wind it up by a receiver.

The suit was begun June 27, 1922. Not till October 23, 1922, did the Supreme Court of the United States dismiss the writ of ceroiorari in the trade-mark litigation. Ninety days thereafter, January 21, 1923, the first payment for the stock, $1,000, would be due under the contract. Fifteen months thereafter, April 21, 1924, would be the time for the payment of the balance. This action was tried in March, 1924, and the decision made in June, 1925. Pending the action, Wappler assigned his judgment to the Andrew Jergens Company, which, defeated by its rival in the trade-mark litigation, was attempting by a flank movement to regain the lost ground. The Supreme Court at Special Term gave judgment for the sequestration of the assets and the appointment of a receiver as prayed for in the complaint. It conceded in its opinion that no cause of action was in existence when the action was begun. The plaintiff at that time had no title to the judgment. The owner was C. Palmer Woodbury, who has not been joined as a defendant. No default had yet been made in the payment of the purchase money for the stock, for nothing was yet due. The court held, however, that default had come about through the failure to pay the installments accruing under the contract while the sequestration suit was pending. The effect of this default, according to the holding of the court, was automatically to revest the title to the judgment in Buggeln or his nominee. The principle was then invoked that equity will adapt its relief to the facts as they exist at the date of the decree. Under cover of that principle, applied at times by courts of equity to advance the ends of justice, an action, begun without shadow of right, in a transparent attempt to evade and avoid the obligation of a contract, has been carried to a triumphant judgment. Upon appeal to the Appellate Division, there was a unanimous affirmance.

We state without elaboration the reasons for a different holding.

1. The general rule is, even in courts of equity, that a plaintiff must have a cause of action for some relief at the commencement of his suit (Sherman v. Foster, 158 N. Y. 587, 593; Bartlett v. N. Y., N. H. & H. R. R. Co., 226 Mass. 467, 471). Such a right existing, the extent of the relief will be adapted to the situation at the time of the decree. We do not now decide that the rule may not be subject to exceptions in the interests of justice. Cases of genuine misconception as to the accrual of a right or those where the discrepancy is trivial or others where the hardship is special or unusual, must be dealt with when they arise. What is certain is that there will be no departure from the rule in order to work an unrighteous forfeiture or to cause justice to miscarry. The plaintiff was not a judgment creditor at the commencement of the suit. He took the assignment of the judgment without right while an earlier assignment was outstanding in the hands of Woodbury. He did this under the orders and as the representative of Buggeln to the end that Woodbury, the buyer of the stock, might be placed in the dilemma of making default under the contract or throwing good money after bad. Not in aid of such designs does equity revise and enlarge its malleable remedies.

2. The buyer of the shares diet not forfeit his right to them, nor revest in the seller the title to the judgment, by failing to make payment while the present suit was pending.

Buggeln and Woodbury had agreed that the judgment was to be canceled when the purchase money for the shares was paid, and that nothing was to be done to enforce it in the interval. To secure fulfillment of.that agreement, the judgment was assigned to the buyer’s nominee. Buggeln, ignoring this assignment, made a second assignment to the plaintiff, who holds for Buggeln’s use. He is thus before the court enforcing the very judgment which was to belong absolutely to the buyer of the shares upon payment of the price, and yet complaining that the price was not paid to him with punctual exactness at a time when he was repudiating his agreement as to the enforcement of the judgment. The shares were without value unless the judgment was surrendered. We think the buyer was at liberty to suspend performance on his part while the seller was enforcing the judgment in defiance of the bargain (2 Williston, Sales, sec. 467-e; Anderson v. Hayes Construction Co., 243 N. Y. 140, 148). The omission to make punctual payment in such circumstances was not even a technical default. Even if it was, it was certainly not one to be used in a court of equity as the basis of a forfeiture (Noyes v. Anderson, 124 N. Y. 175, 179, 180; Noyes v. Clark, 7 Paige, 179; 2 Williston, Contracts, sec. 769).

3. The plaintiff’s interest in the judgment, if he has any, is subject to that of Woodbury under an assignment prior in time. The earlier interest did not terminate automatically without reassignment or foreclosure. The holder of that assignment is a necessary party to the determination of the controversy.

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

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

Judgment accordingly.


author: Lehman, J.

text:
    Ernest M. Chapin, Appellant, v. George E. Learnard, Respondent.
    Contract — profits — agreement to pay one-half net profits from sale of stock — exchange of stock for other securities — computation of profits.
    In an action to recover one-half of the net profits realized by the defendant from the sale of certain stock, which it was found defendant had agreed to pay to plaintiff as compensation for services, where it appears that defendant sold or exchanged the stock for other securities, plaintiff was entitled either to one-half the profits made by the defendant upon the securities he received, or to one-half the securities in kind after reimbursement of defendant’s expenses. Profits may not be determined by considering the new securities as the price of the original stock and then computing the price at which the new securities might have been sold, though in fact retained.

      Chapin v. Learnard, 218 App. Div. 831, reversed.
    (Argued June 16, 1927;
    decided July 20, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 31,1926, unanimously affirming a judgment in favor of plaintiff entered upon the report of a referee.

      Chester B. McLaughlin, Robert McLeod Jackson and Andrew Wilson for appellant.
    The referee erred in the rules applicable to computing, the plaintiff’s damages. (Sedg. on Dam. [9th ed.] §§ 174, 193; Bagley v. Smith, 10 N. Y. 489; Crittenden v. Johnston, 7 App. Div. 258; Owens v. Durham, 35 Ky. 536; Huntington, etc., Co. v. English, 86 Penn. St. 247; Matter of Jones, 172 N. Y. 575; Matter of Dupignac, 123 App. Div. 21; People v. Saxe, 177 App. Div. 16; 221 N. Y. 585; Washburn v. National Wall Paper Co., 81 Fed. Rep. 17; Chicago Title, etc., Co. v. Core, 239 Ill. 58; Wylde v. Northern R. R. of N. J., 53 N. Y. 165; Timlin v. Standard Oil Co., 126 N. Y. 514.) The plaintiff was entitled to an accounting for the purpose of ascertaining just what profits the defendant made either in stock or cash, (Smith v. Bodine, 74 N. Y. 30; Marvin v. Brooks, 94 N. Y. 71; Freeman v. Miller, 157 App. Div. 715; Everett v. De Fontaine, 78 App. Div. 219; Burns v. Niagara, Lockport & Ontario Power Co., 145 App. Div. 290; Kraemer v. World Wide Trading Co., Inc., 195 App. Div. 305; Hill v. Curtis, 154 App. Div. 622; Lardizabal v. Valentine, 185 App. Div. 124; Felbel v. Kahn, 29 App. Div. 270.) Plaintiff is entitled to hold the defendant on an accounting to the highest values which the combustion securities shall have reached prior to the conclusion of the trial. (Shephard v. Johnson, 2 East, 211; Romaine v. Van Allen, 26 N. Y. 309; Burt v. Dutcher, 34 N. Y. 493; Markham v. Jaudon, 41 N. Y. 235.)

      Frank H. Hiscock and James Adam Murphy for respondent.
    The court did not err in the rules applied to the computation of plaintiff’s damages. (Publishing Co. v. Steamship Co., 148 N. Y. 39; Clemmer v. Merriken, 144 Md. 675; Murphy v. Dernberg, 84 App. Div. 101; Ward v. Powers, 208 App. Div. 684.) The referee did not err as to the basis on which the value of the combustion securities should be computed. (Joseph v. Sulzberger, 136 App. Div. 499; Butler v. Wright, 103 App. Div. 463; Barnes v. Brown, 130 N. Y. 372; Kirschmann v. Lediard, 61 Barb. 573; Matter of Jones, 172 N. Y. 575; People v. Coleman, 107 N. Y. 541; Parmenter v. Fitzpatrick, 135 N. Y. 190; Matter of Smith, 71 App. Div. 602; Isham v. Erie Railroad Co., 112 App. Div. 612; Corn Exchange Bank v. Peabody, 111 App. Div. 553; Jelalian v. New York, New Haven & Hartford R. R. Co., 134 App. Div. 381; Rathbone v. Ayer, 121 App. Div. 355; People v. Rushford, 81 App. Div. 298; Peschke v. Wright, 93 Misc. Rep. 154; Hoffman v. Conner, 76 N. Y. 121.)
   Lehman, J.

The plaintiff has brought this action at law to recover one-half of the net profits realized by the defendant from, the sale of certain stock of the Cox Travelling Grate Company and also from certain selling rights to the Cox travelling grate, in accordance with a contract between the parties. The trial justice has found upon sufficient evidence that the defendant on December 5, 1913, promised to pay plaintiff compensation for his services measured by one-half such profits. The trial justice has also found that at various times the defendant sold or exchanged his shares in the Cox Travel-ling Grate Company for securities for the Combustion Engineering Company. Other findings are to the effect that defendant paid to plaintiff from time to time various sums of profits, and that defendant breached his contract on December 17, 1918. The date when the defendant broke or repudiated his contract would ordinarily be the date at which the damages would be computed. One-half the profits made should then have been paid, The sole question involved m this appeal is what were the profits at that date.

The trial judge has held that the profits were the value of the securities of the Combustion Engineering Company at the time they were received after deducting the defendant’s expenses. He refused to allow the plaintiff any share of profits from subsequent increase of value in the securities, received by the defendant as consideration for his stock, which were retained by the defendant until the date of the breach. That, I think, was error. Though we may call the exchange of securities a sale, it was not such a sale as the parties contemplated should determine the profits made by the defendant on the stock of the Cox Travelling Grate Company. Before those profits were determined the securities so received must be disposed of. That was the attitude of both parties so long as the contract remained in existence. That is indeed the only reasonable explanation for the circumstance that plaintiff during this period received only small payments on account.

If, however, we assume that the exchange was a sale upon which the profits were to be computed, the defendant’s position is little better. If the securities received for the original stock constituted the price of that stock, the plaintiff was then entitled upon demand to one-half of those securities after the defendant had reimbursed himself for his expenses. The defendant may not at the same time successfully claim that these securities constitute the price of the stock, and deprive the plaintiff of the benefit to be derived from the price received in securities instead of money by failing to give him the opportunity to determine whether he will hold the new securities or sell them. At the time of the breach of contract as found by the trial justice the plaintiff was entitled either to one-half the profits made by the defendant upon the securities he received, or to one-half the securities in kind after reimbursement of defendant’s expenses. Profits may not be determined by considering the new securities as the price of the original stock and then computing the price at which the new securities might have been sold, though in fact retained.

For these reasons the judgment should be reversed and a new trial ordered. There is also, apparently, error in allowing the defendant as expenses incurred in the acquisition of the stock certain items other than the amount actually paid for the stock. In view, however, of requests to find by the. plaintiff himself which seem to admit the justice of $2,565 included in such items, we should not now pass upon them.

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

Cardozo, Ch. J., Pound, Crane and Kellogg, JJ., concur; Andrews and O’Brien, JJ., vote to modify the judg- - ment by increasing the amount thereof from $25,355.63 to $27,005.06 and as thus modified to affirm, without costs.

Judgment accordingly.


text:
    Hamilton Fire Insurance Company, Respondent, v. Maurice N. Greger, Appellant, Impleaded with Another.
    Subrogation — insurance — summary judgment — action by insurance company to recover amount paid for loss of automobile on ground that insured had subsequently recovered for same loss from railroad company — summary judgment improper where affidavits show claim against railroad was also for personal injuries and damage to other property — right of insurer to recover against railroad not destroyed by release of insured' given for less than full damages with knowledge by railroad that insurer had paid part — insurer must show wrong committed and damages sustained.
    1. In an action by an insurance company to recover the amount paid by it to appellant, the insured, for destruction of his automobile in a collision with a train, on the ground that, subsequently, appellant had received payment in settlement of an action brought by him against the railroad to recover damages suffered in the same accident, summary judgment is improper where affidavits show that the complaint in the action against the railroad included a claim for personal injuries and for injury to property other. than the automobile and the settlement constituted a compromise of disputed liability.
    2. Nor may the judgment be sustained on the ground that by executing a release the appellant has destroyed the right of action which the plaintiff had against the railroad company. The release did not destroy the right to recover against the railroad company which the insurance company obtained by subrogation when it paid insured for the loss sustained by the destruction of the automobile, if the railroad company paid less than the full damages caused by its negligence and obtained the release with knowledge that the insurance company had paid part of these damages under the insurance policy.
    3. Even if it should appear that in fact the release was taken by the railroad company without knowledge that the insurance company was subrogated to part of the claim against it and was intended to cover all the damages suffered by the insured, the insurance company should recover only for the loss it has sustained by that release. It must show that in fact a wrong has been committed and also the damages caused thereby. In order to prove damage it must show that in fact it might have recovered against the railroad company as a wrongdoer.

      Hamilton Fire Ins. Co. v. Greger, 218 App. Div. 536, reversed.
    (Argued June 7, 1927;
    decided July 20, 1927.)
    Appeal from a judgment, entered December 10, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion by plaintiff to strike out the answer of defendant, appellant, and for summary judgment and granted said motion.

      Andrew J. Ewald, Maurice Bloch and Harrison W. Gebhardt for appellant.
    There is an issue as to whether Greger has been paid more than his actual loss sustained because of the accident. (Joyce on Insurance [2d ed.], 5879, § 3537; Ocean A. & G. Corp. v. Hooker Electro Chem. Co., 240 N. Y. 37.)

      Theodore Kiendl and John F. Woods for respondent.
    The court may imply from the insurance policy and subrogation receipt a promise on the part of the defendant to return to the plaintiff the amount paid him when reimbursed by the railroad company. (Murdock v. Chenango Ins. Co., 2 N. Y. 210; Hartford Accident & Indemnity Co. v. Chartrand, 239 N. Y. 36.)
   Lehman, J.

Upon motion of the plaintiff, summary judgment has been entered in favor of the plaintiff against the defendant Maurice N. Greger, for the recovery of the sum of two thousand dollars which the plaintiff had previously paid to the defendant under a policy of insurance issued by it. Under the terms of the policy, the insurance company agreed to indemnify the defendant Greger against loss by reason of the destruction of an automobile owned by him. On or about April 1st, 1923, the automobile was destroyed in a collision with a train operated by the defendant New York, Susquehanna and Western Railroad Company, and on the 3d day of May, 1923, the insurance company paid to the assured the sum of two thousand dollars. The receipt for that payment recites that it was in full of all claims and demands for loss and damage by collision on the first day of April, 1923, to the property insured by Policy No. 40230.”

There is no contention that the insurance policy was not valid or that Greger, the assured, could not have compelled the insurance company to pay him the sum of two thousand dollars which he has received. The right which the insurance company asserts for the return of the moneys so paid is predicated upon the subsequent payment to Greger by the railroad company of a sum of money in satisfaction of a claim for damages caused by the colhsion through which the automobile was destroyed.

When the insurance company paid to the assured the loss for which it had agreed to indemnify him, it, of course, became subrogated to any claim for the same damages which the assured might have against a wrongdoer who has caused the damage. (Ocean Accident & Guarantee Corp. v. Hooker Electrochemical Co., 240 N. Y. 37.) The receipt, which Greger gave to the insurance company at the time he received the stipulated indemnity from it, expressly recognizes the company’s right of subrogation and contains a formal assignment of all claims against third parties to the extent of the amount of the payment.

In August of the same year Greger began an action against the. New York, Susquehanna and Western Railroad Company for damages caused by the collision in which his automobile was destroyed. The complaint in that action states that as a result of the collision “ the automobile of the plaintiff was destroyed and plaintiff, who was riding therein, was thrown out and his collar bone broken, his arm dislocated at the shoulder and elbow and plaintiff received other severe lacerations about the face, left hand and elbow and other parts of his body. * * * That said injuries are permanent and plaintiff underwent great pain and suffering as a result of said negligence. His clothing was destroyed and in divers other respects he suffered considerable damage and will continue to suffer damage in the future.” Greger settled and discontinued his action against the railroad company, receiving in satisfaction the sum of three thousand dollars. At that time he executed a release to the railroad company from all debts, claims and demands whatsoever and particularly such as have arisen by reason of, or in any manner grow out of but in no wise hmiting this release for all damages sustained as a result of an automobile owned and operated by me colliding with a train of the defendant on or about April 1, 1923, at Rochelle avenue, Rochelle Park, Bergen county, New Jersey, and for which suit was instituted by my attorneys, Messrs. Mackay & Mackay, by summons dated August 20th, 1923, in the Bergen County Circuit Court.” The release further recites: “T understand and intend that this release shall operate to discharge the said New York, Susquehanna and Western Railroad Company and said other lines and companies from all claims or demands arising under the laws of any State or of the United States, including all claims and demands that I may now have; or that I, or my executors, administrators or assigns hereafter may have by reason of said accident, under all or any or either of said laws.”

When the insurance company learned that Greger had begun and thereafter settled an action against the railroad company for damages suffered in the same accident in which the insured automobile was destroyed, it began this action against Greger and the railroad company. In its complaint it alleges that the automobile was destroyed by the negligence of the railroad company and that the railroad company settled the action brought against it by Greger after being informed of the fact that Maurice N. Greger was insured against any damages to his automobile as a result of a collision.” The theory of the complaint, at least against the railroad company, is that in spite of the settlement of the action and the release, the insurance company’s claim by subrogation against the railroad company is still in existence; yet because of this settlement, summary judgment has been awarded in favor of the insurance company against the defendant Greger for the amount which the insurance company has previously paid to Greger, in accordance with the terms of its own contract of insurance.

If the affidavits filed in support of the plaintiff’s motion for summary judgment showed without dispute that the plaintiff had received from the railroad company full payment of the same damages for which he had been indemnified previously by the insurance company, then doubtless recovery against Greger for the amount paid to him might be sustained, upon the theory that the law will create an implication of a promise to repay an amount paid as indemnity for damages, suffered, when the party who caused such damages has also made good the damages to the injured party. (Darrell v. Tibbitts, 5 Q. B, D. 560.) Indeed if such circumstances exist in the present case, the plaintiff insurance company would not be compelled to resort to the device of a promise implied in law; for Greger’s claim against the railroad company for damages caused by the destruction of his automobile has been transferred to the insurance company to the extent of $2,000, and any payment thereafter made by the railroad company upon the claim which belongs to the insurance company would be held by the insured for the benefit of the insurance company. (Weber v. Morris & Essex Railroad Co., 35 New Jersey Law, 409; Hartford Accident & Indemnity Co. v. Chartrand, 239 N. Y. 36.) The affidavits in this case do not, however, show that the railroad company has paid to the insured the damages for which he has already received indemnity from the insurance company. Even after the insurance company was subrogated to the claim of Greger, the insured, against the railroad company for the destruction of the automobile, Greger still had the right to proceed against the railroad company to recover for his own benefit any damages for personal injuries or to other property which were caused by the same accident. The complaint in the action brought by Greger against the railroad company included a claim for personal injuries and for injury to property other than the automobile. Indeed the complaint is so phrased that it is not entirely clear that it was intended to include any claim for the loss of the automobile. Even a judgment entered upon a general verdict in an action which was brought to recover every loss suffered by negligence of the railroad company might not allow the inference that the judgment included the full sum paid to the insured for the loss of the automobile. (Costello v. N. Y. C. & H. R. R. R. Co., 238 N. Y. 240.) Here no verdict was rendered and it is not claimed that the amount paid by the railroad company to Greger represented more than a compromise of a disputed liability, and no inference can be drawn that it constituted a full payment for damages suffered. The judgment in the present action in favor of the insurance company against Greger can, therefore, not be sustained upon the theory that Greger has received from the railroad company moneys which equitably belonged to the insurance company.

It is urged that it may be sustained on the ground that by the release to the railroad company the defendant Greger has destroyed the right of action which the insurance company had against the railroad company. The release has certainly not destroyed the right to recover against the railroad company which the insurance company obtained by subrogation when it paid Greger for the loss sustained by the destruction of the automobile, if the railroad company paid less than the full damages caused by its negligence and obtained the release with knowledge that the insurance company had paid to Greger part of these damages under the insurance policy. (Fire Association of Philadelphia v. Wells, 84 N. J. Eq. 484; Ocean Accident & Guarantee Corporation v. Hooker Electrochemical Co., supra.) There is evidence in this case from which it might be inferred that the railroad company did acquire such knowledge from an examination of Greger held at its instance-. There is indeed a question of fact whether in view of all the circumstances, including the form of the complaint and of the release, the parties to the release ever contemplated that the railroad company should be released from any claim already transferred to the insurance company for damages to the automobile. (Conn. Fire Insurance Co. v. Erie Ry. Co., 73 N. Y. 399.)

Even if it should appear that in fact the release was taken by the railroad company without knowledge that the insurance company was subrogated to part of Greger's claim against the railroad company and was intended to cover all the damages suffered by Greger, it would still appear that the insurance company should recover only for the loss it has sustained by that release. If Greger has acted wrongfully and in derogation of the rights of the insurance company he should pay the damages which he has caused. After payment of the insurance money, the insurer became the equitable owner of any right of action of the assured to recover the same damages against the person primarily liable. The courts of some other jurisdictions have held that a release given by the assured to an alleged wrongdoer before payment by an insurance company of the damages caused by the alleged wrongdoer constitutes a defense to an action upon the policy, regardless of whether or not recovery might have been had against the wrongdoer if no release had been given. (Sims v. Mutual Fire Insurance Co., 101 Wis. 586.) We are not called upon to decide whether in the same circumstances we would reach a like conclusion. Here the insurance company asserts a claim against the assured for wrong and damages alleged to have been caused to it by the assured. (See Vooth v. McEachen, 181 N. Y. 28; McAleenan v. Mass. Bonding & Ins. Co., 232 N. Y. 199, at page 205.) It must in such case show that in fact the wrong has been committed and also the damages caused thereby. In order to prove damage it must show that in fact it might have recovered against the railroad company as a wrongdoer. There is no such proof in this case. For all these reasons the judgment of the Appellate Division should be reversed, and the order of the Special Term affirmed, with costs in the Appellate Division and in this court.

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

Judgment accordingly.


text:
    Charles M. Dixon, Respondent, v. Lottie Robbins, Appellant.
    Hotels — fire escapes — negligence — meaning of word “hotel” in statute requiring placing of ropes or other appliances in rooms where there are no fire escapes on outside of building — statute does not apply to lodging house where no meals are furnished and which is not held out as hotel — lodger injured in fire may not recover for failure to comply with requirements of statute.
    1. In construing section 205 of the General Business Law (Cons. Laws, ch. 20) requiring hotels, where there are no fire escapes on the outside of the building, to place in the rooms a “ rope or other better appliance to be used as a fire escape,” it must be presumed that the word “ hotel ” was used according to its common acceptance and is synonymous with the word “ inn,” which at common law meant a place where a traveler is furnished with both lodging and entertainment, including food.
    2. The statute, therefore, does not apply to a building maintained as a lodging house, where rooms are rented to transients or more permanent guests only after price is agreed upon, where no food is furnished, no public rooms are maintained and no other entertainment or service is provided; winch keeps no register and which is not held out to the public as a hotel. A guest who is injured by a fire in such a building may not recover from the owner for failure to comply with the statutory provisions.

      Dixon v. Robbins, 220 App. Div. 746, reversed.
    (Argued June 21, 1927;
    decided July 20, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 6, 1927, affirming a judgment in favor of plaintiff entered upon a verdict.

      Floyd E. Whiteman for appellant.
    The court erred in submitting to the jury as questions of fact whether the Alpine was a hotel and the defendant a hotelkeeper at the time of the fire, and in dechning the defendant’s requests to charge that the Alpine w.as not a hotel and the defendant was not a hotelkeeper at the time of the fire. (Cromwell v. Stephens, 3 Abb. Pr. [N. S.] 26; Alsberg v. Lucerne Hotel Co., 92 N. Y. Supp. 851; Herter v. Dwyer, 129 N. Y. Supp. 505.)

      Edwin J. Carpenter for respondent.
    It was a question of fact for the jury whether or not the Alpine was a hotel, and the jury’s finding that it was is amply supported by the evidence. (Huntley v. Stanchfield, 168 Wis. 119; Commonwealth v. Weatherby, 101 Mass. 214; Pinkerton v. Woodward, 22 Cal. 557; Johnson v. Chadbourne Finance Co., 98 Minn. 310; Nelson v. Johnson, 104 Minn. 440; Metzler. v. Terminal Hotel Co., 135 Mo. App. 410.) A strict and narrow construction of the word “ hotel,” as used in section 205 of the General Business Law, would defeat the object and purpose of the statute. (Gillespie v. Minberg, 4 Daly, 318: Public Service Comm. v. Booth, 170 App. Div. 590; Hudler v. Golden, 36 N. Y. 446; Smith v. Moffet, 1 Barb. 65; 4 N. Y. 126.)
   Lehman, J.

In January, 1924, the plaintiff occupied a room in a building which the defendant owned and maintained. A fire occurred in the building, and the plaintiff sustained personal injuries of some severity while endeavoring to escape from the burning building. The building was not fireproof and was three stories in height. Concededly there were no fire escapes on the outside of the building, and no rope or other better appliance to be used as-a fire escape ” had been placed in the room occupied by the plaintiff as a lodging room, as required by section 205 of the General Business Law [Cons. Laws, ch. 20], if the building of the defendant was a hotel ” within the meaning of the statute.

The trial judge submitted to the jury, as a question of fact, the determination of whether or not the building was a hotel. The jury found a verdict in favor of the plaintiff. Upon the undisputed evidence it seems plain to us that the defendant’s building is not a hotel.

In front of the building there was a sign: “ New Alpine. Rooms by the day, week or night.” The building contained about thirty-five rooms that could be used for lodgings. Some of the rooms were rented for light housekeeping, and the defendant did not take care of the rooms so rented. The other rooms were rented by the day, week or night, or even for part of a night. The price was always stated when the rooms were rented and in each room there was a sign: “ Room rent paid in advance.” As long as any rooms were vacant the defendant would rent to any person who applied. The defendant kept no register. The building had no office or public room. The rooms had no call bells or speaking tubes. No meals were served to lodgers in the building and no other service provided except in the care of the rooms. The plaintiff had occupied his room for two or three months before the fire, and by agreement paid three dollars a week for the room.

The Legislature did not in the statute define the word “ hotel.” We must presume that it intended that the word should be construed according to its common acceptanee. In this country the term “ hotel ” has largely superseded the term “ inn.” All recognized lexicographers indicate that the words may be regarded as synonymous. In the construction of an earlier statute of a different nature, it has been said that “ The terms ‘ inn, tavern or hotel/ mentioned in the statute, are used synonymously, to designate what is ordinarily and popularly known as an inn or tavern, or place for the entertainment of travelers, and where all their wants can be supplied. The words inn or tavern ’ were so used in the prior corresponding enactments. (1 R. S. 679, sec. 10; Overseers of the Poor of Crown Point v. Warner, 3 Hill, 150). A hotel ’ is an inn or house for entertaining strangers or travelers. An ‘ inn ’ is a house for the lodging and entertainment of travelers.” (People v. Jones, 54 Barb. 311.) In construing a much later statute it has been said: “ The hotel, as it was first called, was the old inn, which is well defined as A house of entertainment for travelers/ or 'A house where a traveler is furnished, as a regular matter of business, with food and lodging while on his journey.’ ” (Waitt Construction Co., Inc., v. Chase, 197 App. Div. 327.) In Cromwell v. Stephens (3 Abb. Pr. [N. S.] 26) the court in an elaborate opinion traced the derivation and history of the word “ hotel ” and reached a similar conclusion.

While none of these cases were reviewed by this court, there can be no doubt that they correctly hold that the word “ hotel ” is in the common acceptance of the word synonymous with “ inn,” especially an inn of the better class, and that the word “ inn ” at common law meant a place where a traveler is furnished with both lodging and entertainment, including food. Multiplication of old decisions as to the meaning of the term “inn” would be useless. Beyond possibility of dispute, in times now past a place where travelers could obtain lodging only, without other entertainment, was not an inn. It is said, however, that with changing times, the terms “ inn ” or “ hotel ” have acquired a new significance and that anyplace is a “ hotel ” where transient guests are received and lodged. In effect the trial justice so charged the jury.

It may be that under changing conditions the common-law liability of an innkeeper may be extended by analogy and the compelling logic of particular facts to cases where at common law the person sought to be charged with that liability was not an innkeeper. The courts in some other jurisdictions have reached that conclusion. We need not analyze those decisions nor determine now whether in similar circumstances we should follow them. They present a different question, arising under different circumstances, from that now under consideration.

Here .the question is only whether the Legislature intended to include in the term hotel ” a building maintained as a lodging house where rooms are rented to transients or more permanent guests only after price is agreed upon, where no food is furnished, no public rooms are maintained, and no other entertainment or service is provided; which keeps no register, and which is not held out to the public as a hotel nor seeks the patronage of transients except by the sign on its front, “ New Alpine. Rooms rented by day, week or night.” It may be that a building is a “ hotel ” within the meaning of the statute, though a person cannot receive there all the entertainment ” he might have obtained in other times at an “ inn.” We may not look solely to old definitions when we determine the meaning of a word which muse be applied under changed conditions. Even under new conditions the term “ hotel ” is not applicable to a building, maintained as the evidence shows the defendant’s building was maintained, with few if any of those characteristics which mark a hotel ” or “ inn ” as understood and defined both in legal decisions and common speech. The statute construed according to its letter and spirit does not apply to such a building. Other sections of the General Business Law show that the Legislature did not so intend (see sections 200, 201 and especially 206).

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., Kellogg and O’Brien, JJ., concur; Pound and Crane, JJ., dissent; Andrews, J., absent. Judgment accordingly.