author: Loughran, J. Finch, J.

text:
    In the Matter of Mid-State Advertising Corporation, Appellant, against John A. Bond, as Fire Marshal and Superintendent of Buildings of the City of Troy, Respondent.
    Argued January 27, 1937;
    decided April 27, 1937.

      John H. Broderick for appellant.
    The ordinance adopted by the Common Council of the city of Troy, adding section 6-a to the zoning ordinance of the city of Troy, is unconstitutional and void. (Cowan v. City of Buffalo; 247 App. Div. 591; Fisher Co. v. Woods, 187 N. Y. 90, Matter of Jacobs, 98 N. Y. 98; People v. Gillson, 109 N. Y. 389; People v. Ewer, 141 N. Y. 129; City of Worcester v. Worcester Con. St. Ry. Co., 196 U. S. 539; City of Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394; Matter of McAneny v. Bd. of Estimate, 232 N. Y. 377; People v. Kuc, 272 N. Y. 72; People ex rel. Friend v. City of Chicago, 261 Ill. 16; City of New York v. Wineburgh Advertising Co., 122 App. Div. 748; Mountain Timber Co. v. Washington, 243 U. S. 219; Burns Baking Co. v. Bryan, 264 U. S. 504; Tenement House Dept. v. Moeschen, 179 N. Y. 325; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Thousand Island Park Assn. v. Tucker, 173 N. Y. 203; People ex rel. Wineburgh Advertising Co. v. Murphy, 195 N. Y. 126; People ex rel. Standard Bill Posting Co. v. Hastings, 77 Misc. Rep. 453; 153 App. Div. 920; 207 N. Y. 763; Varney & Green v. Williams, 155 Cal. 318.)

      Frank S. Parmenter, Corporation Counsel (John P. Judge of counsel), for respondent.
    The ordinance is presumptively valid and constitutional and the burden is on the petitioner to show the contrary. (People ex rel. City of Rochester v. Briggs, 50 N. Y. 553; Village of North Pelham v. Ohliger, 216 App. Div. 728; Matter of Wolfsohn v. Burden, 241 N. Y. 288; Town of Islip v. Summers Coal & Lumber Co., 257 N. Y. 167; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; O’Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251.) The ordinance is not confiscatory, unreasonable, arbitrary or unequal. (Rice v. Van Vranken, 132 Misc. Rep. 82; City of Rochester v. West, 164 N. Y. 510; Perlmutter v. Greene, 259 N. Y. 327; Cusack Co. v. City of Chicago, 242 U. S. 526.) The ordinance does not exceed the express and implied powers of the city. (City of Rochester v. West, 164 N. Y. 510; People ex rel. Dunn v. Ham, 166 N. Y. 477; People ex rel. Wineburgh Advertising Co. v. Murphy, 195 N. Y. 126; Matter of Stubbe v. Adamson, 173 App. Div. 305; Matter of Wolfsohn v. Burden, 241 N. Y. 288.)
   Loughran, J.

Appellant applied to the respondent, as Superintendent of Buildings of the city of Troy, for permits to erect billboards for general advertising purposes on property of the appellant in that city. The application was denied under an ordinance of the city which provides: It shall be unlawful to construct or erect any billboard and/or signboard within the corporate limits of the City of Troy, except upon real property owned or leased by the occupants thereof and for the sole purpose of advertising the sale of such real property or of merchandise kept for sale upon such premises. The provision of this Ordinance shall not apply to sky signs, as provided for in Section 172 of the Building Code, erected or to be erected upon buildings three stories or more in height.”

A peremptory order of mandamus directing issuance of the permits so applied for was granted by the Special Term. The Appellate Division reversed on the law. The single question presented to us is that of the constitutional validity of the foregoing ordinance.

We think the ordinance is void on its face. It is not an attempt by zoning to exclude billboards or other advertising signs from localities where such devices might mar the beauty of natural scenery or distract travelers on congested city streets. Even were we to assume that outdoor advertising on private property within public view may without compensation be restricted by law for cultural or aesthetic reasons alone, this prohibition, which includes all land in the city of Troy, without definition of the structures proscribed or other standard of regulation, cannot be sustained consistently with fundamental constitutional principles. (N. Y. Const. art. 1, § 6; U. S. Const. 14th Amend. § 1. Cf. People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126; People ex rel. Publicity Leasing Co. v. Ludwig, 218 N. Y. 540; People v. Rubenfeld, 254 N. Y. 245, 248, 249; Perlmutter v. Greene, 259 N. Y. 327. See Opinion of Justices, 232 Mass. 605; General Outdoor Adv. Co. v. Dept. of Public Works, 289 Mass. 149; Freund, Police Power, § 182; Larremore, Public Aesthetics, 20 Harvard Law Review, 35.)

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

Finch, J.

(dissenting). The city of Troy, through its duly chosen representatives, has enacted an ordinance prohibiting the erection of billboards or signboards within the city limits, except for the purpose of advertising the sale of the real property upon which they are placed or of merchandise kept for sale upon the premises. Excepted, also, are sky signs erected upon buildings three stories or more in height. This court is about to declare the ordinance void as being unconstitutional.

It is not unreasonable for a municipality or a State to desire to beautify its streets or highways. Legislation designed to eliminate advertising signs which tend to mar such beauty and annoy travelers upon the highway should not be deemed arbitrary

Such a restriction upon the rights of a property owner is not a taking of private property for public use for which the city must compensate the owner. There has been no taking of private property. There has been merely a restriction on the use of the property retained by the property owner. This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor. * * * [The owner] is restrained; not because the public have occasion to make the like use, or to make any use of the property, or to take any benefit or profit to themselves from it; but because it would be a noxious use, contrary to the maxim, sic utere tuo, ut alienum non laedas. It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain.” (Ch. J. Shaw in Commonwealth v. Alger, 7 Cush. [Mass.] 53, 85, 86.)

Every restriction upon the use of property imposed under the police power deprives the owner of some right and is in that sense an abridgment of rights in property without making compensation. Nevertheless, such restrictions, where reasonable, have been held not to deprive the owner of property in violation of the Constitution. The property remains in the possession of the owner. The State does not appropriate it or make use of it. Thus it is not a taking of private property for public use for a State to authorize encroachment by party walls in cities (Jackman v. Rosenbaum Co., 260 U. S. 22), to fix the height of buildings (Welch v. Swasey, 214 U. S. 91), to exclude from residential areas offensive trades (Reinman v. Little Rock, 237 U. S. 171), or to establish zoning areas (Zahn v. Board of Public Works, 274 U. S. 325). Restrictions upon the use of property are limited by the due process clause of the Federal and State Constitutions. Legislation that is unreasonable, arbitrary or capricious cannot be sustained, but laws which have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, satisfy requirements of due process, and where the law applies equally to all property owners there is no denial of equal protection of the laws. Wé are inclined to overlook the fact that save for the three exceptions above mentioned, namely, a taking of property, a compliance with the clauses of due process, and an equal protection of the laws, the legislative power of a State of the United. States is absolute and unlimited, and every act of the Legislature must be presumed to be in harmony with the Constitution until the contrary is made clearly to appear.

The appellant refers us to cases in this State and others which have held that statutes restricting the display of advertising signs are unconstitutional if they are based solely upon aesthetic grounds. (People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126; Opinion of Justices, 232 Mass. 605; Varney & Green v. Williams, 155 Cal. 318.) Although such a law may have been unwarranted in New York in 1909, when the Wineburgh case was decided, it does not follow that it is unconstitutional today. The Constitution, it is true, does not change with the times, nor does an emergency or unusual circumstances warrant a disregard of constitutional provisions. A determination of what is due process, aside from procedural matters, however, depends upon the reasonableness of the legislation. Circumstances, surrounding conditions, changed social attitudes, newly-acquired knowledge, do not alter the Constitution, but they do alter our view of what is reasonable. Restrictions upon the use of property, which were deemed unreasonable in 1909, are regarded today as entirely reasonable and natural. “ The field of regulation constantly widens into new regions.” On innumerable occasions the courts have found that with the passage of years, legislation, at one time deemed unreasonable, has become entirely acceptable. (Cf. Adkins v. Children’s Hospital, 261 U. S. 525; West Coast Hotel Co. v. Parrish, 300 U. S. 379; Block v. Hirsh, 256 U. S. 135; Chastleton Corp. v. Sinclair, 264 U. S. 543; Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398. See Sharp, Movement in Supreme Court Adjudication, A Study of Modified and Overruled Decisions, 46 Harv. Law Rev. 361, 593, 795.)

Moreover, People ex rel. Wineburgh Adv. Co. v. Murphy (195 N. Y. 126) dealt only with sky signs, which have been specifically excepted from the effect of the ordinance in the case at bar, and this court has only recently stated: One of the unsettled questions of the law is the extent to which the concept of nuisance may be enlarged by legislation so as to give protection to sensibilities that are merely cultural or aesthetic.” (People v. Rubenfeld, 254 N. Y. 245, 248; Perlmutter v. Greene, 259 N. Y. 327, 332.)

Can it be said that it is unreasonable to decide that a city without ugly and distracting billboards is a' more attractive and a more desirable place to dwell in than a city so disfigured? In a number of cases the courts have held that statutes and ordinances limiting or prohibiting billboards are constitutional. (Perlmutter v. Greene, 259 N. Y. 327; Cusach Co. v. City of Chicago, 242 U. S. 526; St. Louis Poster Adv. Co. v. St. Louis, 249 U. S. 269; Gibbons v. Missouri, K. & T. R. Co., 142 Okla. 146; Horton v. Old Colony Bill Posting Co., 36 R. I. 507; Cream City Bill Posting Co. v. City of Milwaukee, 158 Wis. 86; Kansas City Gunning Adv. Co. v. Kansas City, 240 Mo. 659; 72 A. L. R. 465.) In many of these cases it has been admitted in the opinion that the primary motive of the statute seemed to be an aesthetic one, but the courts, still hesitant to uphold the legislation on that ground alone, have made reference to the fact that the statutes might be sustained also as health or safety measures. Often the health or safety element has been slight indeed.

The [police] power is not limited to regulations designed to promote public health, public morals or public safety or to the suppression of what is offensive, disorderly or unsanitary but extends to so dealing with conditions which exist as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity.” (Matter of Wulfsohn v. Burden, 241 N. Y. 288, 298.)

Recently Massachusetts held, despite an earlier decision to the contrary, that prohibitions against, and restrictions upon, the display of billboards are constitutional although they can be justified only upon aesthetic grounds. (General Outdoor Adv. Co. v. Dept. of Public Works, 289 Mass. 149; Gardner, The Massachusetts Billboard Decision, 49 Harv. Law. Rev. 869.) The United States Supreme Court has upheld an ordinance zoning a village which entirely excluded billboards from most of the zones. (Village of Euclid v. Ambler Realty Co., 272 U. S. 365.) It is submitted that it cannot be said today that an ordinance forbidding the display of billboards is unreasonable, arbitrary or capricious, even though it is based solely upon the desire to improve the appearance of the city.

It is objected by some that, while the prohibition of advertising signboards would be lawful if applied to a residential district alone, such prohibition is not lawful if extended to business districts. Perhaps the prohibition is more desirable in a residential area than in a business district. Perhaps factories, stores and the industrial sections of a city naturally tend to be ugly, but it does not follow that business may not be carried on amid more pleasant surroundings. Certainly any city enacting such an ordinance would present a more pleasing picture to the eye than one plastered with blatant signboards. Psychologists and business men themselves tell us that in pleasant surroundings work is done more efficiently. A city might well conclude that it is more likely to attract commercial enterprises and permanent residents if it improves its appearance; that its residents will gain financially by such an improvement; or that the elimination of distracting and annoying billboards will add to the physical and mental well-being of its inhabitants. Such a conclusion is not unreasonable. The billboard eyesore is in many ways akin to annoying sounds and undesirable odors which undoubtedly can be prohibited. Although such restrictions may be more desirable in residental areas, nevertheless, their extension to business districts cannot be termed unreasonable. It is said that in business districts such signs do not mar the beauty of natural scenery or distract travelers on the city streets. Beauty in such areas may not be so obvious, but that does not prevent the city from restraining additional ugliness.

The order of the Appellate Division should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien and Rippey, JJ., concur with Loughran, J.; Finch, J., dissents in opinion; Hubbs, J., taking no part.

Ordered accordingly.


source: Caselaw Access Project

author: Hubbs, J.

license: Public Domain

text:
    The City of New York, Appellant, v. Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Respondents.

      Argued March 1, 1937;
    decided April 27, 1937.

      Paul Windels, Corporation Counsel (Herman Horowitz and Joseph L. Weiner of counsel), for appellant.
    The Public Service Commission is without jurisdiction to fix rates for hydrant services furnished to the city of New York. Jurisdiction must be expressly conferred upon the Commission. (City of New York v. Interborough R. T. Co., 257 N. Y. 20; Matter of Village of Boonville v. Maltbie, 272 N. Y. 40.) The Public Service Law (Cons. Laws, ch. 48) expressly denies to the Commission jurisdiction over hydrant or other rates and charges by water companies to municipalities. (Village of Horseheads v. Elmira Water, Light & R. R. Co., 23 St. Dept. Rep. 398;
      City of New York v. New York Edison Co., 196 App. Div. 644; Matter of Town of Mamaroneck v. N. Y. Inter-Urban Water Co., 203 App. Div. 122; 235 N. Y. 563; N. Y., N. H. & H. R. R. v. I. C. C., 200 U. S. 361; Kings County Lighting Co. v. City of N. Y., 176 App. Div. 175; 221 N. Y. 500; Browne v. City of New York, 241 N. Y. 96.) The charter of the city of New York (L. 1901, ch. 466) contains a statutory scheme for the furnishing of services by water companies to the city and this statutory scheme is safeguarded from Commission interference by express legislative provisions. (People ex rel. City of New York v. Queens County Water Co., 232 N. Y. 277; City of New York v. Jamaica Water Supply Co., 181 App. Div. 49; 226 N. Y. 572; Staten Island Water Supply Co. v. City of New York, 144 App. Div. 318; Freeport Water Co. v. Freeport City, 180 U. S. 587; Danville Water Co. v. Danville City, 180 U. S. 619; Rogers Park Water Co. v. Fergus, 180 U. S. 624; Spring Valley Water Works v. Schottler, 110 U. S. 347; People ex rel. N. Y., N. H. & H. R. R. Co. v. Willcox, 200 N. Y. 423; People ex rel. City of New York v. Belt Line Ry. Corp., 230 N. Y. 86.)

      Jackson A. Dykman and Jules Haberman for Jamaica Water Supply Company, respondent.
    The Public Service Law (Cons. Laws, ch. 48) grants jurisdiction to the Commission over rates and charges. (City of New York v. Interborough R. T. Co., 257 N. Y. 20; Matter of Mooney v. Cohen, 272 N. Y. 33; New York ex rel. Woodhaven Gas Light Co. v. Pub. Serv. Comm., 269 U. S. 244; Vil. of Saratoga Springs v. Saratoga G. Co., 191 N. Y. 123; People ex rel. C. P., etc., R. R. Co. v. Willcox, 194 N. Y. 383; City of New York v. Citizens Water Supply Co., 199 App. Div. 169; 235 N. Y. 584; Morrell v. Brooklyn Borough Gas Co., 231 N. Y. 405; Matter of Niagara, Lockport & O. P. Co. v. Prendergast, 229 App. Div. 295; Silberberg v. Citizens Water Supply Co., 116 Misc. Rep. 595; 208 App. Div. 818; Matter of City of Yonkers v. Maltbie, 231 App. Div. 415.) The charter of the city of New York contains no statutory scheme protected from Commission interference. (Staten Island Water Supply Co. v. City of New York, 144 App. Div. 318; New York State Electric & Gas Corp. v. Maltbie. 241 App. Div. 780; 266 N. Y. 521.)

      George E. McVay, Raymond J. McVeigh and Gay H. Brown for Public Service Commission, respondent.
    The Commission had jurisdiction of the subject-matter and complete power and authority under the statute to make its order. (Cons. Laws, ch. 48, art. 4-B.) In the absence of contract the Commission has exercised jurisdiction over utility rates to municipalities. (People ex rel. Consolidated Water Co. v. Maltbie, 245 App. Div. 866.) The provisions of the charter of the city of New York, authorizing the fixing of water rates by the Commissioner of the Department of Water Supply, Gas and Electricity are unconstitutional. (Matter of McAneny v. Board of Estimate & Apportionment, 232 N. Y. 377; City of New York v. Citizens Water Supply Co., 199 App. Div. 169; 235 N. Y. 584; Morrell v. Brooklyn Borough Gas Co., 231 N. Y. 398; 231 N. Y. 405; Silberberg v. Citizens Water Supply Co., 116 Misc. Rep. 595; 208 App. Div. 818.)
   Hubbs, J.

The complaint in this action prays for a declaratory judgment adjudging that the Public Service Commission has no jurisdiction to fix, investigate or regulate hydrant rates for hydrant services heretofore or hereafter rendered by the defendant Jamaica Water Supply Company to the city of New York; that the hydrant rate heretofore fixed for such hydrant service be declared null and void and that the Public Service Commission and the other defendants be enjoined from doing any act or commencing any suit in law or equity based upon the order made by the Commission on January 23, 1936, in so far as it fixed a hydrant rate to be paid by the plaintiff to the Jamaica Water Supply Company.

The respondent moved under rule 106 of the Rules of Civil. Practice to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The Special Term granted the motion and the order has been affirmed by the Appellate Division.

Broadly stated, the position of the appellant is that the Public Service Commission was without jurisdiction to make the order which it made. The determination of that question involves an examination of the relevant statutes, particularly sections 471 and 472 of the Greater New York Charter (Laws of 1901, ch. 466), which purport to vest in the Commissioner of Water Supply, Gas and Electricity authority to fix in the first instance the “ rates, fares and charges ” to be paid to water companies, and article 4-B of the Public Service Law (Cons. Laws, ch. 48; Laws of 1931, ch. 715), which respondents contend confers upon the Public Service Commission jurisdiction ov.er rates to be charged municipalities for water for public uses by private water companies.

Section 471 provides in substance that all contracts concerning the public water supply shall be made only in accordance with the provisions of the act. Section 472 reads in part: “ * * * The commissioner of Water supply, gas and electricity * * * toay exercise superintendence, regulation and control in respect of the supply of water by such water companies, including rates, fares and charges to be made therefor.”

Those sections were enacted in the city charter in 1897. (Laws of 1897, ch. 378.) Prior to January 1, 1934, the respondent Jamaica Water Supply Company furnished water to the city for fire protection and other purposes. For such hydrant services the city by contract agreed to pay and did pay $45 per hydrant per annum. On or about January 10, 1934, the Commissioner, purporting to act under section 472 of the charter, without notice to the water company, suspended the rate of $45 per hydrant and fixed the rate at $18.50 per hydrant and offered to pay that rate to the water company. The water company refused to accept the reduced rate. It, however, continued to furnish hydrant service and billed the city for the same at the old rate. In so doing it acted without a contract with the city.

In October, 1934, the Public Service Commission, upon its own motion, commenced an investigation of the rates charged for water sold by the defendant water company. Notice of the hearing was duly served upon the city. It did not, however, appear at the hearings and took no part in the investigation. After extensive investigation and hearings, the Public Service Commission fixed the rate to be charged by the water company for hydrant service at $40 per hydrant per year and also fixed the rate to be charged for water for domestic use. The water company thereafter, in accordance with the terms of the order, filed with the Commission a tariff schedule fixing the charges and rates as prescribed in the order of the Corn-mission. Thereafter this action was commenced to secure a declaratory judgment declaring the order of the Commission null and void, in so far as it fixed a rate to be paid for hydrant service.

It is conceded that prior to July 1, 1931, when article 4-B of the Public Service Law (Laws of 1931, ch. 715) became effective, the Commission was without authority to make the order in question. Article 4-B extended the jurisdiction of the Commission over water works corporations and the Legislature therein prescribed the Commission’s powers and authority for the regulation of and methods for ascertaining the reasonable prices and rates to be charged for water. Section 89-a, the first section of the new statute, reads:

“ § 89-a. Application of article. This article shall apply to the sale, furnishing and distribution of water for domestic, commercial and public purposes, not including bottled water.”

Section 89-c provides:

“ § 89-c. General powers of commission in respect to water supply. The commission: 1. Shall have general supervision of all water-works corporations, as herein before defined, having authority under any general or special law or under any charter or franchise to lay down, construct or maintain pipes, conduits, ducts or other fixtures in, on or under the streets, highways and public places of any municipality, for the purpose of furnishing or distributing water for domestic, commercial or public uses, * * *."

Section 5 of the Public Service Law, the general section conferring jurisdiction upon the Commission for the regulation and fixing of rates for public utilities, was amended at the same time that article 4-B was enacted by adding a new subdivision, 5-a. Section 5 reads in part:

“ Jurisdiction of public service commission. The jurisdiction, supervision, powers and duties of the public service commission shall extend under this chapter: *******

5-a. To the furnishing or distribution of water for domestic, commercial or public uses and to water systems and to the persons or corporations owning, leasing or operating the same.”

Subdivision 5-a reads practically the same as the preceding five subdivisions relating to railroads, gas and electric corporations, steam plants, telephone lines and telegraph fines, except the words public uses ” have been added.

From a reading of the various sections quoted, it seems quite apparent that the Legislature has attempted to adopt a comprehensive scheme for the regulation of water companies and for the fixing of rates. That its jurisdiction extends to the fixing of rates for the use of water by municipal corporations seems clear from the use of the new words “ public uses ” contained in subdivision 5-a of section 5 of the Public Service Law, and the use of the same words in article 4-B. The use of those words can only refer to use of water by municipal corporations. If they do not have that meaning, their use is entirely without purpose or meaning. We cannot attribute to the Legislature any such lack of purpose in the use of words. Were it not for section 472 of the city charter, no doubt could exist as to the intent of the Legislature. The Legislature in enacting article 4-B of the Public • Service Law did not expressly repeal that section. The city charter, being a statute enacted by the Legislature, it was at liberty by subsequent enactment to limit, modify or repeal it in whole or in part. Repeal by implication is not favored and will be decreed only where a clear intent appears to effect that purpose. We are convinced that the Legislature by the enactment amending the sections of the Public Service Law has expressed such clear intent. Article 4-B, section 89-j, after providing that the Commission, after a hearing, may by order fix a just and reasonable rate to be charged for services, then provides: notwithstanding that a higher or lower price has been theretofore prescribed by general or special statute, contract, grant, franchise condition, consent or other agreement.”

Similar language is used in subdivision 4, section 89-c, which defines the general powers of the Commission in respect to water supply. Article 4-B, section 89-a, provides that the article shall apply to the sale of water for public purposes.” Section 89-c provides that the Commission shall have general supervision .over water works corporations, distributing water for “ commercial or public uses.” Section 89-i provides that upon complaint in writing as to rates by a mayor of a city in which a corporation is authorized to distribute water for domestic, commercial or public uses,” the Commission shall investigate the complaint and after a hearing by order fix just and reasonable rates, notwithstanding a different rate has been fixed by special or general statute (§ 89-j). By the amendment of section 5 of the Public Service Law by adding subdivision 5-a, the Legislature expressly conferred upon the Commission jurisdiction over the distribution of water for domestic, commercial or public uses.”

When those laws were enacted in 1931, the Legislature is presumed to have known of the provisions of section 472 of the city charter (enacted in 1897) and intended to vest in the Public Service Commission the rate-making oower which it had formerly vested in the Commissioner of Water Supply, Gas and Electricity of the city by section 472 of the city charter. Otherwise, all of the various provisions of law vesting in the Public Service Commission jurisdiction over rates for the use of water for public purposes would be meaningless.

Jurisdiction of the Public Service Commission cannot be conferred by implication, but must be given by language which admits of no other reasonable construction. (Siler v. Louisville & Nashville R. R. Co., 213 U. S. 175.)

The statute in question confers jurisdiction upon the Commission by language which is clear and explicit and cannot be misunderstood. The language used is so repugnant to * and inconsistent with the language of section 472 of the charter, that we are required to hold that the charter provision must yield to the later law.

The Public Service Commissions Law (Laws of 1910, ch. 480, § 66) defines the powers of the Commission in respect to gas and electricity sold by public utility corporations and regulates the exercise of business by such corporations. Subdivision 12 limits the jurisdiction of the Public Service Commission as to the right to compel such corporations to file schedules, contracts, rules and regulations with the Commission as follows: “ but this subdivision shall not apply to state, municipal or federal contracts.”

Article 4-B, section 89-c, subdivision 10, of the Public Service Law contains the same language, substituting the words “ water-works corporation ” in the appropriate places. The appellant urges that the language above quoted excepts municipalities from the operation of the provisions of the Public Service Law governing the fixing of rates. We reach a different conclusion. That section has to do with the filing of schedules and contracts by water works corporations and the exception simply provides that the provisions of the section shall not apply to state, municipal or federal contracts.” The section has nothing to do with the general jurisdiction granted to the Public Service Commission to fix rates only as it constitutes a limitation on that power. At the time the order was made by the Public Service Commission, the city did not have a contract with the water company for furnishing hydrant service. The limitation contained in section 89-c, subdivision 10, but this subdivision shall not apply to state, municipal or federal contracts,” has no application under the facts here involved. A different question would be presented if at the time the order of the Public Service Commission was made, a contract had been in existence between the city and the water company and the Commission had attempted by order to abrogate and nullify such contract. When there is in existence a contract between a municipality and a water works company for water for a public use, the Public Service Commission is without authority to fix a rate therefor. If, however, there is no contract in force, the Commission upon written complaint as provided for in section 89-i shall conduct an investigation and fix a rate. The broad public policy involved in vesting in the Public Service Commission authority to fix the rates of public service corporations does not apply to the fixing of a rate when there is in existence a contract entered into between a municipal corporation and a water works company.

We believe that the conclusion which we have reached is in accord with the public policy of the State to vest the fixing of rates to be charged by public utility corporations in the Public Service Commission. We hold only that the fixing of rates between the city and the water company in the absence of a contract, resides in the Public Service Commission, and that the amendments of the Public Service Law heretofore referred to have to that extent superseded and repealed the provisions of section 472 of the city charter. The questions in relation to other provisions of the city charter are now before this court for decision in the case of Matter of City of New York v. New York Water Service Corp. (274 N. Y. 100). We agree with the decision of the Appellate Division that the Special Term had jurisdiction under the facts of this case to render a declaratory judgment for the reason stated in the opinion of that court.

The judgment should be affirmed, with costs.

Crane, Ch. J,, Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur.

Judgment affirmed.


author: Loughran, J.

text:
    In the Matter of City of New York, Appellant, against New York Water Service Corporation, Respondent.

      Argued March 1, 1937;
    decided April 27, 1937.

      Paul Windels, Corporation Counsel (Herman Horowitz and Joseph L. Weiner of counsel), for appellant.
    Section 472 of the charter of the city of New York (L. 1901, ch. 466) has not been repealed, and the appropriate remedy is mandamus. (City of New York v. Jamaica Water Supply Co., 181 App. Div. 49; 226 N. Y. 572; People ex rel. City of New York v. Queens County Water Co., 232 N. Y. 277; City of New York v. Maltbie, 159 Misc. Rep. 276; 248 App. Div. 39; People ex rel. N. Y., N. H. & H. R. R. Co. v. Willcox, 200 N. Y. 423.) The Public Service Law (Cons. Laws, ch. 48) creates no new remedy for the enforcement of section 472 of the charter. (People ex rel. City of New York v. Queens County Water Co., 232 N. Y. 277; People ex rel. City of New York v. Belt Line Ry. Corp., 230 N. Y. 86.) Section 472 of the charter is constitutional. (City of New York v. Jamaica Water Supply Co., 181 App. Div. 49; 226 N. Y. 572; People ex

      rel. City of New York v. Queens County Water Co., 232 N. Y. 277; Health Department v. Trinity Church, 145 N. Y. 32; Chicago, B. & Q. R. Co. v. Nebraska, 170 U. S. 57; Bragg v. Weaver, 251 U. S. 57; Matter of City of Rochester v. Holden, 224 N. Y. 386; Sears v. City of Akron, 246 U. S. 242.)

      William M. Wherry, Cyril Hyde Condon, James C. Forsyth, Russell H. Neilson and Henry S. Ferriss for respondent.
    The remedy sought by the city in the first instance for a peremptory mandamus order does not lie, by reason of the fact that the city has not exhausted its available and adequate remedy provided by article 4-B of the Public Service Law. (Matter of Towers Corp. v. Thatcher, 271 N. Y. 94; Matter of Burr v. Voorhis, 229 N. Y. 382; Matter of Cullen v. New York Tel. Co., 106 App. Div. 251; People ex rel. Nicholl v. New York Infant Asylum, 122 N. Y. 190; City of New York v. Empire City Subway Co., 202 App. Div. 494; Matter of Carroll Realty Corp. v. New York Edison Co., 141 Misc. Rep. 266; City of New York v. New York Edison Co., 196 App. Div. 644; Town of West Rutland v. Rutland Ry., Light & Power Co., 96 Vt. 413; Baltimore & Ohio R. Co. v. Pitcairn Coal Co., 215 U. S. 481; Loomis v. Lehigh Valley R. R. Co., 240 U. S. 43; Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426.) Section 472 of the charter, in so far as it purports to authorize the Commissioner of Water Supply, Gas and Electricity to require respondent to make extensions to its distribution system without notice and without a hearing, is unconstitutional and void. (City of New York v. Citizens Water Supply Co., 199 App. Div. 169; City of New York v. Maltbie, 159 Misc. Rep. 276; New York Edison Co. v. Maltbie, 271 N. Y. 103; Oregon R. R. & Navigation Co. v. Fairchild, 224 U. S. 510; Chicago, M. & S. P. R. R. Co. v. Board of Railroad Comm., 76 Mont. 305; Southern R. R. Co. v. Virginia, 290 U. S. 190.)
   Loughran, J.

This is a mandamus proceeding. The city of New York is the petitioner. Defendant is a water-works corporation ” and the owner of a “ water system ” which it operates for the sale and distribution of water for domestic, commercial and public uses. (See Public Service Law [Cons. Laws, ch. 48], § 2, subds. 26, 27.) It serves a section of the fourth ward of the borough of Queens, city of New York, known as Woodhaven, and there furnishes water to the city for fire protection, street flushing and like purposes. No express "contract regulates this service.

Beginning in 1927 the Commissioner of Water Supply, Gas and Electricity of the city repeatedly directed the defendant to install additional water mains of specified sizes in designated streets “ so that an adequate and more reliable supply of water for fire protection would be provided in the Woodhaven area.” Although no claim was made by the defendant that these reinforcements of its distribution plant would be unwarranted or excessive, the direction therefor remained substantially unexecuted on July 18, 1936. On that date the city applied for a peremptory order of mandamus to compel obedience by the defendant. The application was granted by the Supreme Court at Special Term and denied at the Appellate Division. The city now appeals to this court.

At the time in issue, section 472 of the Greater New York Charter (Laws of 1901, ch. 466) provided: “ The commissioner of water supply, gas and electricity is hereby authorized to examine into the sources of water supply of any private companies supplying The City of New York or any portion thereof or its inhabitants with water, to see that the same is wholesome and the supply is adequate, and to establish such rules and regulations in respect thereof as are reasonable and necessary for the convenience of the public and the citizens; and the said commissioner may exercise superintendence, regulation and control in respect of the supply of water by such water companies * * *.” This provision, as heretofore construed by this court, empowered the Commissioner to give the direction for extensions of the defendant’s equipment and imposed upon the defendant a duty to comply. (People ex rel. City of New York v. Queens County Water Co., 232 N. Y. 277.) It followed, in the opinion of the Special Term, that the city was entitled to have the court exact submission by the defendant.

The Appellate Division was of opinion “ that mandamus is not the proper remedy in the first instance as there is another specific and adequate remedy available to the petitioner, namely, that provided by article 4-B of the Public Service Law ” (249 App. Div. 787), and that cases decided before the enactment of that article in 1931 (L. 1931, ch. 715) were without application. Accordingly, the order of the Special Term was reversed on the law and not in the exercise of discretion. We are unable to agree to this disposition of the issue.

No higher police duty rests upon municipal authority than that of furnishing an ample supply of pure and wholesome water for public and domestic uses. The preservation of the health of the community is best obtained by the discharge of this duty, to say nothing of the preservation of property from fire, so constant an attendant upon crowded conditions of municipal life. If a municipality elect to contract with another for the discharge of this function, it is under the greatest obligation to require that the contractor shall engage to construct and maintain adequate means and furnish an adequate supply, in quality and quantity, to at all times meet the public necessity.” (City of Columbus v. Mercantile Trust & Deposit Co., 218 U. S. 645, 658, 659.) This was the essential governmental function expressly conferred upon the city of New York by the foregoing provision of section 472 of its charter. By that charter it is explicitly declared that none of its provisions is to be deemed to be repealed or amended “ unless it be so expressly stated, or the legislative intention to that effect is unmistakable.” (§ 1618.) We do not suppose that this rule of statutory construction was repudiated when thereafter article 4-B, of the Public Service Law was enacted.

The provisions of that article are analyzed in the opinion of Judge Hubbs in City of New York v. Maltbie (274 N. Y. 90), decided herewith. For the purposes of the present case, it is enough to say that nowhere in those provisions can we discover an unmistakable legislative intention thereby to repeal the foregoing provision of section 472 of the charter of the city. In this aspect, the defendant reads these statutes as we do. In their brief its counsel say that it does not claim that it is subject exclusively to the jurisdiction of the Public Service Commission; neither does it claim that the Commissioner of Water Supply has no powers whatever with respect to water companies.”

For what remedy,- then, is the city first to apply to the Public Service Commission? Not for a determination of the fire protection requirements of the Woodhaven territory. The City Commissioner has settled that matter, even if it be assumed (and we do not so decide) that the Public Service Commission has in that regard a concurrent jurisdiction which it could here have exercised in the first instance. Nothing else is presently in controversy between the parties. The Public Service Commission is not to order the defendant to conform to the direction of the City Commissioner. The Public Service Commission has no power to issue such a mandate. That function is the function of the court. In a word, the Public Service Commission has here no jurisdiction at all.

It is maintained by the defendant that the foregoing provision of section 472 of the charter of the city overruns constitutional limitations upon legislative power. This contention has been compressed into a single sentence: “ The specific constitutional defect in section 472 of the Greater New York City charter * * * is the lack of any provision for notice, a hearing and the compilation of a reviewable record, and, therefore, the delegation of police power to the Commissioner of Water Supply, Gas and Electricity to regulate the business of private water companies is unconstitutional.” At this point again, the argument disregards the quality of the charter provision. In a situation so fraught with peril to a large part of its population, summary action by the city is the thing demanded. A hearing before its administrative official in the first instance is not indispensable. This was in fact decided in People ex rel. City of New York v. Queens County Water Co. (supra), where also it was pointed out that the city must make reasonable compensation for services so commanded.

We agree with the Special Term that on both points the case is disposed of by the authority last cited.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. •

Crane, Ch. J., Lehman, O’Brien, Hubbs, Finch and Rippey, JJ., concur.

Ordered accordingly.


author: Per Curiam.

text:
    Mary Maloney, as Administratrix of the Estate of Edward R. Maloney, Deceased, Respondent, v. Hearst Hotels Corporation, Appellant.

      Argued March 18, 1937;
    decided April 27, 1937.

      Wallace T. Stock, James Carroll and Manheim Rosenzweig for appellant.
    The alleged failure of appellant to comply with sections 2G0 and 201 of article 15 of chapter 10 of the New York City Code of Ordinances constitutes neither negligence nor any evidence of negligence, and it was reversible error to permit the jury to give consideration to these ordinance sections (McGaffin v. City of Cohoes, 74 N. Y. 387; Dean v. Metropolitan Elevated R. Co., 119 N. Y. 541; People v. Shakun, 251 N. Y. 107; Williams v. Firemen’s Fund Ins. Co., 54 N. Y. 569; 0’ Neil v. Buffalo Fire Ins. Co., 3 N. Y. 122; Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339; Walsh v. Woolworth Co., 180 App. Div. 120; Matter of Roberto v. Schmadeke, 180 App. Div. 143; Dugan v. McArdle, Inc., 184 App. Div. 570; Lee v. Vacuum Oil Co., 54 Hun, 156.) If there was ordinance violation it bore no causal relation to the death of plaintiff’s intestate. (Schumer v. Caplin, 241 N. Y. 346; Callahan v. Terminal Cab Corp., 259 N. Y. 112; Newhall v. McCann, 267 N. Y. 394; Brown v. Shyne, 242 N. Y. 176; Chrystal v. Troy

      & Boston R. R. Co., 124 N. Y. 519.) Neither ordinance was adopted for the purpose of protecting firemen. (City of Rochester v. Campbell, 123 N. Y. 405; Heeney v. Sprague, 11 R. I. 456; Swift v. City of New York, 270 N. Y. 152; Racine v. Morris, 201 N. Y. 240.)

      John C. Robinson, Morris A. Wainger, William A. Hyman and Alexander J. Simmons for respondent.
    Defendant violated the ordinances of the city of New York in keeping, storing and using the paints and explosives in the subcellar. (Matter of Stubbe v. Adamson, 220 N. Y. 459; Racine v. Morris, 201 N. Y. 240; Ward v. Hasbrouck, 169 N. Y. 407; Ostrander v. Hart, 130 N. Y. 406.) Where there is a violation of city ordinances, to the benefits of which a fireman is entitled, a recovery by the fireman is authorized. (Gibson v. Leonard, 143 Ill. 182; Woodruff v. Bowen, 136 Ind. 431; Willy v. Mulledy, 78 N. Y. 310; Hamilton v. Minn. Desk Mfg. Co., 78 Minn. 3; New Omaha T. H. El. Co. v. Anderson, 73 Neb. 84; Kelly v. Muhs Co., 71 N. J. L. 358; Beehler v. Daniels, 19 R. I. 49; Carlock v. Westchester Lighting Co., 268 N. Y. 345; Racine v. Morris, 201 N. Y. 240; Ryan v. Thomson, 6 Jones & Spencer, 133; Newhall v. McCann, 267 N. Y. 394; Hyland v. Cobb, 252 N. Y. 325; Martin v. Herzog, 228 N. Y. 164; Amberg v. Kinley, 214 N. Y. 531; Cameron v. Kenyon-Connell Commercial Co., 22 Mont. 312.) The ordinances applied to appellant and its conduct and the painting materials were " stored ” in the general storeroom and paint room. (Matter of Stubbe v. Adamson, 220 N. Y. 459; Racine v. Morris, 201 N. Y. 240; City of New York v. Globe Neon Tube Corp., 147 Misc. Rep. 515; Wright v. Northwestern Ry. Co., 27 Ill. App. 200; Bandosz v. Daigger & Co., 255 Ill. App. 494; Perry v. Rochester Lime Co., 219 N. Y. 60.) There was causal relation between the violation of section 200 of the Code of Ordinances and the explosion, and no factors intervened or superseded so as to break the caüsal relation. (Carlock v. Westchester Lighting Co., 268 N. Y. 345; Horning v. Hudson River Tel. Co., 111 App. Div. 122; 186 N. Y. 552; Prussak v. Hutton, 30 App. Div. 66; Willson v. Colorado Ry. Co., 57 Col. 303; Pinson v. Young, 100 Kan. 452; Parnell v. Holland Furnace Co., 234 App. Div. 567; 235 App. Div. 756; 260 N. Y. 604; International Mercantile Marine Co. v. Fels, 164 Fed. Rep. 337; Leahey v. Standard Oil Co. of New York, 224 Mass. 352.) Firemen are included among the persons for whose protection the ordinances were enacted. (Racine v. Morris, 201 N. Y. 240; Carlock v. Westchester Lighting Co., 268 N. Y. 345; Bandosz v. Daigger & Co., 255 Ill. App. 494; Parker v. Bernard, 135 Mass. 116.)
   Per Curiam.

In the subcellar of the Ritz Tower Hotel, two stories below the street, the defendant had maintained for years a general storeroom including a paint room and paint shop wherein were kept or stored large quantities of paints, lacquers, benzine, gasoline, turpentine, alcohol and other highly volatile and explosive liquids. Defendant operated a painting establishment there with eight painters and a foreman. The storeroom lacked efficient ventilation. The quantity of these paints exceeded a hundred gallons.

On August 1, 1932, a fire broke out in the subcellar, which the New York Fire Department was summoned to extinguish. In entering the subcellar from which smoke was being emitted, the plaintiff’s intestate, Edward R. Maloney, a fireman, with others was killed by an explosion of these paints or chemical compounds. Whatever was the immediate cause of the accident, it is conceded that it would not have happened if the paints had not been stored in the subcellar or if there had been sufficient and proper equipment and ventilation for such purpose. Sections 200 and 201 of article 15 of chapter 10 of the Code of Ordinances of the City of New York provide as follows:

§ 200. Permit. No person shall manufacture, store or keep for sale paints, varnishes or lacquers or any other substances, mixtures and compounds commonly used for painting, varnishing, staining or other similar purposes, in quantities greater than 20 gallons, without a permit.

§ 201. Restrictions. No permit for the manufacture, mixing or compounding of paints, varnishes or lacquers shall be issued for any premises * * *.

(b) Which are occupied as a tenement house, dwelling, hotel, workshop or factory; * *

The defendant had failed to observe these ordinances and from this failure arises the liability which has been enforced in this case. We are not called upon at this time to decide whether in the absence of such ordinances or rules and regulations an owner of property owes the same duty to a fireman as he would to an invitee to keep his premises in reasonably safe and secure condition. Meiers v. Koch Brewery (229 N. Y. 10) does not necessarily go this far. We may reserve the question, however, for further consideration as we have in this case a direct violation of ordinances which were enacted for the benefit of firemen as well as guests in the hotels; at least firemen entering into the premises had a right to assume that the law in this particular had been complied with. (Racine v. Morris, 201 N. Y. 240; Carlock v. Westchester Lighting Co., 268 N. Y. 345.)

We do not give to these sections of the Code of Ordinances the narrow construction desired by the appellant. They were intended to prevent the mixing or compounding of paints, varnishes or lacquer in premises occupied as hotels such as here in question, and in the quantities and amounts used by the defendant. This does not mean that the ordinary painter may not mix his paints while performing his painting job in a tenement house or hotel, but it seeks the safety of occupants by preventing the storing or keeping of more than twenty gallons of paint without a permit, and the mixing or compounding of paints in connection therewith. The storing required a permit. Conditions of safety might be required before such a permit could be issued. In this case proper ventilation no doubt would have been directed before paints could be kept in a room in the subcellar. No permit, however, could be issued for the mixing of paints in this hotel in connection with keeping large quantities of combustibles not for immediate use.

Section 761 of the Greater New York Charter (Laws of 1901, ch. 466) was not relied upon in the courts below nor any question raised regarding it. "Whether this limits recovery by a fireman to cases of willful and culpable negligence or criminal intent and design is not now before us. This court will not pass upon issues not raised below and mentioned for the first time in this court for the purpose of reversing the judgment. (People ex rel. Rutland R. R. Co. v. State Tax Commission, 243 N. Y. 543; Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345; People v. Bresler, 218 N. Y. 567, and Caponigri v. Altieri, 165 N. Y. 255.)

The judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgment affirmed.


author: Rippet, J.

text:
    Maud D. Lahr, Respondent, v. Mabel C. Tirrill, Appellant. John B. Lahr, Respondent, v. Mabel C. Tirrill, Appellant.
    Argued March 25, 1937;
    decided April 27,1937.

      Oscar J. Brown for appellant.
    Defendant’s motion for a nonsuit at the conclusion of plaintiff’s case should have been granted. (Hammond v. Hammond, 227 N. Y. Supp. 336; Rango v. Fennell, 168 N. Y. Supp. 646; Ruback v. McCleary, 220 N. Y. 188; Digelormo v. Weil, 260 N. Y. 192; Ford v. McAdoo, 231 N. Y. 155; Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y. 356; Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 330; Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248; Bond v. Smith, 113 N. Y. 378; Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 420; Wieland v. D. & H. C. Co., 167 N. Y. 19; Lamb v. Union Ry. Co., 195 N. Y. 260; Powers v. N. Y. C. & H. R. R. R. Co., 60 Hun, 19; White v. Lehigh Valley R. R. Co., 220 N. Y. 131.) The fact that the defendant may have applied her brakes after the car started to skid is not negligence. Even if the defendant had applied her brakes after the car started to skid, and, in doing so, erred in judgment, the jury could not find negligence since a mistake in judgment in an emergency is not negligence. (Bittner v. Crosstown Ry. Co., 153 N. Y. 76.)

      James A. Leary and Walter A. Fullerton for respondents.
    Defendant’s negligence was a question for the jury. (Ackerman v. Stacey, 157 App. Div. 835; Burd v. Bleischer, 208 App. Div. 499; Mertz v. Conn. Co., 217 N. Y. 475; Pellegrino v. Smith Co., 226 N. Y. 165; Raolaslovic v. N. Y. C. R. R. Co., 245 N. Y. 91.) Whether negligence in operation of the automobile in this case caused the skidding, and whether the car was being properly operated in view of all the circumstances, was a question of fact. (Altenkirch v. National Biscuit Co., 127 App. Div. 307; Philpot v. Fifth Ave. Coach Co., 142 App. Div. 811; Daly v. Horton Ice Cream Co., 166 App. Div. 28; Anderson v. Schorn, 189 App. Div. 495; 231 N. Y. 590; Arpino v. Beyl, 214 App. Div. 289; Smith v. Levison, 226 App. Div. 706; 252 N. Y. 543; Counter v. N. Y. Tel. Co., 259 N. Y. 554; Lakin v. Wright, 230 App. Div. 330; Andrews v. Cayuga Omnibus Corp., 235 App. Div. 888; 261 N. Y. 522.) There was evidence to justify the finding that plaintiff was injured by defendant’s negligence. Whether or not defendant exercised due care was a question of fact for a jury. (Railroad Co. v. Stout, 17 Wall. 657; Texas & Pacific Ry. Co. v. Harvey, 228 U. S. 319; Sharp v. Erie R. R. Co., 184 N. Y. 100; Edgerley v. L. I. R. R. Co., 44 App. Div. 476; Luther v. F., J. & G. R. R. Co., 160 App. Div. 366; Shea v. United States Trucking Corp., 200 App. Div. 821; 235 N. Y. 529; Burd v. Bleischer, 208 App. Div. 499; Warner v. N. Y., O. & W. Ry. Co., 209 App. Div. 211.)
   Rippet, J.

Maud D. Lahr and her husband have brought actions against defendant, the former to recover damages for injuries received by her in an automobile accident and the latter to recover for expenditures made by him for medical treatment for his wife, etc. The cases were tried together and resulted in a $4,000 verdict for the wife and a $1,000 verdict for the husband. Judgments for plaintiffs were affirmed by the Appellate Division by a divided court. Defendant rested at the close of plaintiffs’ case without introducing any evidence. Motions for nonsuit and direction of verdict were made by defendant, but decision was reserved. After the jury rendered their verdicts, the motions were denied, as was a motion for a new trial under section 549 of the Civil Practice Act. The question presented is whether there was evidence of negligence on the part of defendant authorizing submission of the cases to the jury. We think there was not.

Plaintiff Maud D. Lahr, a resident of Round Lake, New York, and defendant, a resident of Williamsport, Pennsylvania, were old acquaintances. Defendant had been visiting at plaintiffs’ home prior to the accident. At about 7 a. m. on January 9, 1933, Mrs. Lahr and defendant left Round Lake in defendant’s Hudson sedan for Williamsport. Defendant operated the car and was an experienced and careful driver, and Mrs. Lahr occupied the front seat beside her. At the start of the trip, the weather was clear and the road dry. They proceeded through Sehenectady along the highway leading to Binghamton at the rate of about thirty miles per hour, when it started to snow and the road became slippery and slushy and later, icy. About twenty-five miles out of Schenectady defendant felt the car slew on a curve and asked Mrs. Lahr if she noticed it. At the suggestion of the latter, the speed of the car was reduced to twenty miles per hour and continued at that rate until just before the accident. Reaching a point about thirty-five miles out of Schenectady at around 8:30 a. m., while driving on a crowned macadam road about eighteen feet wide with dirt shoulders, defendant proceeded on the right-hand side of the road down a hill on a left-hand curve of approximately twenty-two degrees, without mishap. The curve in the road extended beyond the foot of the grade over which they had safely passed and up a MU to the southwest up a moderate grade. Mrs. Lahr testified that it was necessary and proper to increase the speed of the car to make tMs grade. Defendant put on the gas; the speed of the car increased to about thirty mües per hour before the foot of the Mil was reached. At that speed the car proceeded a short distance up the hiU, whereupon the rear end slewed sUghtly to the right, then the car sMdded across the road to the left and back again to the right, struck a post in a guard raU, proceeded without slackened speed up the road about seventy-five feet to a dirt lane and turned in. One of the front wheels of the car struck the root of a tree and the car turned over. Mrs. Lahr testified that she thought or felt that the brakes were applied. Her testimony was uncertain and conflicting on the point of the application of the brakes. They were applied, if appfied at all, just before the car started to sMd to the left or during the skid. The windshield wiper was worMng. The snow formed a Ught covering on the road, but there were no ruts or tracks and no traffic to interfere with defendant’s operation of the car. Mrs. Lahr said that she operated a car herself and that defendant, on the occasion of the accident and under the conditions then obtaining, operated the car as she would have done under similar circumstances. Upon those facts it was left to the jury to guess and surmise that defendant had violated some duty upon which negligence could be predicated.

No proof was offered that there was anything wrong with the mechanism of the car or that the tread of the tires was worn down and smooth. Mrs. Lahr assumed the risk of injury from any defect in the car that may have existed and caused the accident, unless defendant knew about it. (Galbraith v. Busch, 267 N. Y. 230.) There was failure to question the witness called by plaintiffs who had an opportunity to examine the car concerning its condition after the accident. Plaintiffs did not call the garage man who took charge of the car after the accident, and offered no explanation for his absence from the trial. Had there been anything out of order in the car which might have explained the accident and by which defendant might have been shown negligent, it is presumed that plaintiffs would have produced the evidence.

There was nothing left in this case except the skid of the car on a slippery road, the movement of the car at thirty miles per hour and the possible application of the brakes by a skillful operator just before or during the skid. There is no evidence that the act of increasing the speed of the car was coincident with or had anything to do with the skid; in fact, the opposite appears. The road was clear of traffic and the speed of the car had been increased to thirty miles per hour before the foot of the hill was reached. There is no evidence or anything from which an inference can be drawn that a speed of thirty miles per hour under the conditions then obtaining constituted negligent operation of the car. On the contrary, it was good practice and Mrs. Lahr testified it was necessary to increase the speed to enable them to make the grade. No presumption of negligent operation would arise until a speed of forty miles per hour is reached. (Vehicle and Traffic Law [Cons. Laws, ch. 71], § 56, subd. 1-b.) There was no positive evidence that the brakes were applied at any time. Mrs. Lahr said she thought or felt that the brakes were applied either before the car skidded to the left or during the skid. Even so, there is no testimony by any one that the application of the brakes had anything to do with the skid, nor was there any evidence from which any inference could be drawn to that effect. If the brakes Were applied at an inopportune time under the circumstances, negligence cannot be found from that fact, and the court so charged. There was nothing to show that the brakes were out of order, that application of pressure on the drums attached to the wheels was irregular or that the brake mechanism was properly or improperly adjusted or that pressure was equalized when applied or that the biakes, when applied, had not previously worked properly.

The whole question of negligence was left to guess, speculation and surmise. The cause of the skid was not shown; there was nothing to show that the skid occurred because of a defective condition of the car or because of its negligent operation. Under the facts here, there was no proof of negligence. The burden was on the plaintiffs to produce evidence of negligence; it could not be inferred from the fact that the car skidded or that the accident happened, nor could it be left to guess, speculation or surmise. The court so charged, in substance. It is the law of this State. (Galbraith v. Busch, supra; Hammond v. Hammond, 227 App. Div. 336; Rango v. Fennell, 168 N. Y. Supp. 646.) And if the evidence, such as there is, is capable of an interpretation equally consistent with the presence or absence of a wrongful act, that meaning must be ascribed which accords with its absence. (Digelormo v. Weil, 260 N. Y. 192.)

In each case the judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts. (See 274 N. Y. 611.)

Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran and Finch, JJ., concur.

Judgments reversed, etc.


author: Rippey, J.

text:
    Elizabeth Kuhn, as Administratrix of the Estate of Francis Kuhn, Deceased, Appellant and Respondent, v. City of New York et al., Defendants; P. J. Carlin Construction Company, Appellant, and Albee Godfrey Whale Creek Company, Inc., Respondent.

      Argued March 18, 1937;
    decided April 27, 1937.

      Thomas J. Milan, Robert X. Kuzmier, Richard C. Cotter and Jacob Gruber for plaintiff, appellant and respondent.
    The defendant-appellant was the general contractor and as such owed a duty of safe transportation to the decedent. (DeLee v. Pardy Construction Co., 249 N. Y. 103; Caspersen v. LaSala Bros., 253 N. Y. 491; Haefeli v. Woodrich Engineering Co., 255 N. Y. 442; Hooey v. Airport Constr. Co., 253 N. Y. 486; Rosenberg v. Schwartz, 260 N. Y. 162; Reed v. Davis, 141 Misc. Rep. 36; 232 App. Div. 868; Patrick v. Atlas Knitting Co., 164 App. Div. 753; Matter of Littler v. Fuller Co., 223 N. Y. 369; Maleeny v. Standard Shipbuilding Corp., 237 N. Y. 250; Williams v. Board of Trustees, 204 App. Div. 566; 210 App. Div. 161.) The plaintiff has a common law right of action and may maintain it in the State court, (Engel v. Davenport, 271 U. S. 33; Matter of Heaney v. Carlin Constr. Co., 269 N. Y. 93; La Casse v. Great Lakes Engineering Works, 242 Mich. 454; Maleeny v. Standard Shipbuilding Corp., 237 N. Y. 250; The Hamilton, 207 U. S. 398; Resigno v. Jarka Co., 248 N. Y. 225; Lumber Mut. Cas. Ins. Co. v. Thompson, Inc., 134 Misc. Rep. 370; Warren v. Morse Dry Dock & Repair Co., 235 N. Y. 445; Kursa v. Overseas Shipping Co., 217 App. Div. 775; Danielsen v. Morse Dry Dock & Repair Co., 235 N. Y. 439; Western Fuel Co., v. Garcia,
      257 U. S. 233; Grant-Smith Porter Ship Co. v. Rohde, 257 U. S. 469.) The defendants, appellant and respondent, are chargeable with both constructive and actual notice of the dangerous condition of the boiler. (Matter of Heaney v. Carlin Constr. Co., 269 N. Y. 93; Kirby v. Montgomery Bros. & Co., 197 N. Y. 27.) Neither in the charge nor in the rulings of the court during the trial was reversible error committed. (Bank Line v. Porter, 25 Fed. Rep. [2d] 843; The Abbazia, 127 Fed. Rep. 495; Compagnie Maritime Francaise v. Meyer, 248 Fed. Rep. 881; Van Schaick v. United States, 159 Fed. Rep. 847; The Archer, 29 Fed. Rep. [2d] 134; Gorham Co. v. United E. & C. Co., 202 N. Y. 342; Clintsman v. Northrop, 8 Cow. 45; Ring v. Franklin, 2 Hall, 1; Lonnberg v. Knox, 123 Misc. Rep. 148; Egan v. Dry Dock, 12 App. Div. 556; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Swarthout v. New Jersey Steamboat Co., 48 N. Y. 209; Miller v. International Harvester Co., 193 App. Div. 258.) The complaint should not have been dismissed as to the defendant-respondent. (Webb v. Sturtevant Co., 157 App. Div. 19; Campbell v. McNulty Brothers, 162 App. Div. 685; Bohnhoff v. Fischer, 210 N. Y. 172; Rausch v. Standard Shipbuilding Corp., 111 Misc. Rep. 450;, Matter of Heaney v. Carlin Constr. Co., 269 N. Y. 93.)

      E. C. Sherwood, Henry Bogert Clark and Frederic J. Locker for defendant-appellant.
    The action, being in tort and arising out of an accident in navigable waters through the operation of a vessel, is within the admiralty jurisdiction and is governed by the principles of the maritime law of the United States. (Kellogg & Sons v. Hicks, 285 U. S. 502; Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479; Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449; Southern Pacific Co. v. Jensen, 244 U. S. 205; Hoof v. Pac. Am. Fisheries, 279 Fed. Rep. 367; Danielsen v. Morse Dry Dock & Repair Co., 235 N. Y. 439; Thomas v. Lane, 2 Sumn. 1; Philadelphia Co. v. Towboat Co., 23 How. 209; The Plymouth, 3 Wall. 20; Kenward v. The Admiral Peoples, 295 U. S. 649;
      Atlantic Transport Co. v. Imbrovek, 234 U. S. 52; Matter of Heaney v. Carlin Constr. Co., 269 N. Y. 93; Int. Stev. Co. v. Haverty, 272 U. S. 50; Northern Coal & Dock Co. v. Strand, 278 U. S. 142; Baizley Iron Works v. Span, 281 U. S. 222; Messel v. Foundation Co., 274 U. S. 427; Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449; Gonsalves v. Morse Dry Dock Co., 266 U. S. 171.) It is a fundamental principle of the maritime law that the sole duty and responsibility in respect of the operation and of the maintenance in seaworthy condition of a vessel rests upon those and those alone who are in possession and control of the vessel. (Matter of Heaney v. Carlin Constr. Co., 269 N. Y. 93; Leary v. United States, 81 U. S. 607; Reed v. United States, 78 U. S. 591; United States v. Hvoslef, 237 U. S. 1; Bramble v. Culmer, 78 Fed. Rep. 497; The Spokane, 294 Fed. Rep. 242 ; 264 U. S. 583; The Allianca, 290 Fed. Rep. 450; 294 Fed. Rep. 1020; 264 U. S. 595; The Volund, 181 Fed. Rep. 643; Hagar v. Clark, 78 N. Y. 45; Barnevo v. Munson, 239 N. Y. 486; The Beaver, 219 Fed. Rep. 139; Luckenbach v. Insular Line, 186 Fed. Rep. 327; Pacific Imp. Co. v. Schubach-Hamilton S. S. Co., 214 Fed. Rep. 854; The Nicaragua, 71 Fed. Rep. 723 ; 72 Fed. Rep. 207; Cosulich Line of Trieste v. Bowers, 49 Fed. Rep. [2d] 218; The Volund, 181 Fed. Rep. 643; Barbaro v. Auditore Contracting Co., 215 App. Div. 595.) There was no proof of any relationship between the decedent and the defendant-appellant out of which arose any duty to transport him or to exercise vigilance in respect of the operation of the vessel or of the maintenance in seaworthy condition of the vessel, its boiler and machinery, by its duly licensed officers. (W. Va. C. R. R. Co. v. State, 96 Md. 652, 666; Palsgraf v. L. I. R. R. Co., 248 N. Y. 339; Thomas v. Quartermaine, 18 Q. B. Div. 685; Robins Dry Dock & Repair Co. v. Flint, 275 U. S. 303; German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220; Nat. Bank v. Grand Lodge, 98 U. S. 123; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; Iacono v. Frank

      Contracting Co., 259 N. Y. 377.) There is no proof upon which the jury could properly base a finding of negligence on the part of the defendant-appellant. (Barnevo v. Munson S. S. Line, 239 N. Y. 486; O’Doherty v. Postal Telegraph-Cable Co., 134 App. Div. 298; Iacono v. Frank Contracting Co., 259 N. Y. 377; The Spokane, 294 Fed. Rep. 242; Barbaro v. Auditore Contracting Co., 215 App. Div. 595.) The testimony of a witness as to a conversation he claimed to have had with the superintendent of the defendant-appellant’s construction work on the island was not competent, nor was it sufficient to warrant a finding of notice to the defendant-appellant. (Bickford v. Menier, 107 N. Y. 490; Corrigan v. BobbsMerrill Co., 228 N. Y. 58; Butler v. Mich. Mut. Life Ins. Co., 184 N. Y. 337; McCormack v. Security Mut. Life Ins. Co., 220 N. Y. 447; Baer v. Amer. Credit-Indemnity Co., 114 App. Div. 233; 191 N. Y. 540; Thornton v. Hogan, 82 App. Div. 500; Huyler v. City of New York, 160 App. Div. 415; Greiner v. City of Syracuse, 228 App. Div. 566; Edwards v. Dooley, 120 N. Y. 540; Dudley v. Perkins, 235 N. Y. 448.)

      William A. Seidl, Patrick S. Mason and Paul Koch for defendant-respondent.
    The plaintiff, having failed to establish any cause of action against the defendant-respondent, the complaint was properly dismissed as to it. (De Voe v. N. Y. State Rys., 218 N. Y. 318; Meo v. Bloomgarden, 237 App. Div. 325; Whallon v. Sprague El. Elevator Co., 1 App. Div. 264; Famborille v. Atlantic, Gulf & Pacific Co., 155 App. Div. 833; Patrick v. Atlas Knitting Co., 164 App. Div. 753; Reed v. Davis, 141 Misc. Rep. 36.) Plaintiff failed to plead a cause of action against the defendant-respondent. (Campoccia v. Panama R. R. Co., 110 Misc. Rep. 116; Culhane v. Economical Garage, Inc., 195 App. Div. 108.) The accident having occurred while decedent was a fare-paying passenger upon a public ferry, plaintiff’s rights are exclusively against the owner and operator of the public ferry. (Atlantic Transport Co. v. Imbrovek, 234 U. S. 52; The Moses Taylor, 71 U. S. 411; The Williamette Valley, 71 Fed. Rep. 712; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149.)
   Rippey, J.

The city of New York owns Rikers Island, on which it has maintained a penal institution for many years. Having decided to erect new buildings on the island, the city entered into five main contracts with as many different contractors for their construction and equipment to be carried through under the supervision of the city architects. The contract for the general construction work (not including work under contracts for power plants, plumbing, heating, ventilation and refrigerator work and electrical work) was let to the defendant the P. J. Carlin Construction Company (hereinafter referred to as Carlin ”), who agreed to furnish all necessary work and materials to complete its part of the job within 800 days after the work was commenced. Carlin contracted with the defendant Albee Godfrey Whale Creek Construction Company (hereinafter referred to as “ Albee ”) to do the iron work which fell within the provisions of the contract between Carlin and the city. Francis Kuhn, for whose death this action was brought to recover damages, was an employee of Albee.

Rikers Island was inaccessible except by boat. The city transported prisoners to and from the island by means of a municipally owned ferry, but by the express terms of its contracts with Carlin and with the other main contractors assumed no responsibility for transporting men or materials required in connection with the construction and equipment of the buildings. Each contractor was required to “ investigate the existing means of transportation to and from Rikers Island ” and to assume responsibility for the transportation from mainland to island of men and materials for all work done under this contract.” For a time after work commenced, all men employed on the job under the Carlin contract were transported by the municipal ferry. Finally the city notified Carlin that it would no longer furnish ferry service. Thereupon Carlin made the arrangement with one Forsyth, who owned and operated a ferry boat, the steamer Observation, to furnish such service, as embodied in a letter dated June 26, 1931, which, so far as material, reads as follows:

" (1) You are to operate the Steamer ‘ Observation/ which is warranted by you to be officially rated at 250 capacity by local steamboat inspectors, Custom House, N. Y., full crewed, upon a schedule furnished to you by our Field Office, and calling for operation five days in the week only, from Monday to Friday inclusive.
“(2) You are to be compensated therefor by collecting fares from the men at the rate of 10¡í a round trip. In the event that your fares do not reach the sum of $60.00 upon any given day, we shall reimburse you for the difference. Where your fares exceed $60.00 a day, you will pay the excess to us up to a point where we are reimbursed for any monies paid to you by us under this license.
(3) It is understood that we" are in no way obligated to continue your services, which may be suspended or completely shut down at any time at our pleasure. It is understood that you will procure all landing permits except at the Hikers Island landing. This boat will be held for this service for twelve hours a day, and in the event tiiat it becomes disabled, another boat will be immediately substituted of equal capacity, namely, 250, under the Steamboat Inspector’s rating.
“ (4) We understand that your boat is warranted to be in first class condition, with all necessary permits to operate in this service.”

After four or five months it was found that too large a number of men were employed on the island requiring transportation to work to be accommodated on the steamship Observation, and arrangements were made by J. Francis Carlin with Forsyth to use other boats in place of the Observation. He put into service the Sea Bird and the Albertina at different times and guaranteed Forsyth a minimum of $100 a day while those boats Were used. The substance of the agreements with Forsyth was that he should furnish ferry service when and as needed for the men and should receive either by collection from the men through fares or, if such collections were insufficient, from Carlin, a minimum of $60 per day for the use of the Observation or a minimum of $100 per day for the use of any other ferry. Employees of the other four main contractors also used this same ferry service. On March 22, 1932, Carlin notified all the other main contractors that, because of the fewer number of men which they should be required to employ on the work thereafter, they would not require as large a boat as the one in use and that, in order to utilize the smaller boat which they proposed to put on about March 22, they would be obliged to restrict the passengers to the men working under their own contract, namely No. 1, and it would be necessary, for the other, contractors on and after that date to provide transportation for their own men.

Employees of both Carlin and Albee were instructed to use the Forsyth service for transportation between the mainland and the island and were forbidden to use any other means of transportation and were given passes by Carlin to identify them and admit them to passage on the boat and to a landing on the' island. Each pass issued by the construction company to the men was numbered and dated, with the name, address and signature of the bearer, and countersigned by the company, and it is obvious that it was issued for the purpose of protecting the city óf New York and the Carlin Company. A charge of fifty cents was made to cover the cost of the celluloid case in which the pass was carried, of which twenty-five cents was to be refunded when the pass and case were returned. Among other things, there is printed on the pass: “ You are cautioned against speaking or communicating in any way with the prisoners. All parcels, luggage and tool boxes subject to examination. * * * This pass is issued for the exclusive use of the person designated on the obverse side and under the following conditions: It is not transferable. The holder hereof shall not use it for any purpose other than in the lawful performance of his duties with relation to Contract No. 1, Bikers Island Penitentiary and the P. J. Carlin Construction Co. Any marks or erasures made thereon shall immediately cancel this pass and expose the holder to a searching investigation by the officers charged with guarding the Wards and Property of the City of New York. This pass must be immediately returned to the P. J. Carlin Construction Co., when the holder severs his connections Contract No. 1 at Bikers Island, there is no extension or hold-over privilege given or implied for any reason. * * * All passes not immediately returned shall - be cancelled. A printed cancellation list shall be issued to the officers and any person unlawfully presenting a cancelled pass shall be liable to arrest and detention until he shall have fully justified himself to the authorities. No pass shall be reissued, bearing a serial number previously issued.” A notice was posted on the boat. Its purpose was clearly to notify those using the boat to maintain order and avoid confusion and to save themselves from danger and prosecution for misbehavior on the boat.

On September 9, 1932, Francis Kuhn, with other employees of the Carlin and Albee companies, boarded the steamer Observation at her dock at East One Hundred and Thirty-sixth street, New York. The steamer backed out of her berth into the East river. While she was turning to head for Bikers Island, a violent explosion occurred, the ship was destroyed and Kuhn was killed. His administratrix sued both Carlin and Albee for damages arising out of the death of her husband, by virtue of the opportunity offered under the provisions of section 130 of the Decedent Estate Law (Cons. Laws, ch. 13) of the State of New York. The trial court dismissed the complaint as against Albee. The case, as to Carlin, went to the jury and a verdict for plaintiff resulted. Judgment upon the nonsuit and verdict has been affirmed by the Appellate Division, first department, and appeals by plaintiff and by Carlin, by permission, have been perfected to this court.

We have recently had occasion to consider the status of an employee of defendant Carlin who was injured in the explosion of the Observation and have held that the employee could claim and sustain an award against bis employer under the Workmen’s Compensation Law (Cons. Laws, ch. 67) of the State of New York. (Matter of Heaney v. Carlin Construction Co., 269 N. Y. 93; affd., 299 U. S. 41.) In Matter of Dingfeldt v. Albee Godfrey Whale Creek Co. (272 N. Y. 623) we have made a similar decision against the Albee Godfrey Company where the claimant was its employee. It was there held that the matter of transportation of the men from the mainland to Bikers Island was incidental to and a part of their contracts of employment, that the employment contracts were not maritime but local in character, that the performance of the contract had no direct effect upon navigation or commerce, that neither the ship nor the owner were affected, and that the application of the Workmen’s Compensation Law would not work material prejudice to the characteristic features of the general maritime law nor interfere with the proper harmony and uniformity of that law in its international and interstate relations. It was recognized that a different situation would exist if the actions were based on a maritime tort. The Workmen’s Compensation Law provides a remedy against an employer for a living claimant or for his dependents in case of the employee’s death. (Workmen’s Compensation Law, § 33.) Plaintiff’s intestate was not the master or a member of the crew of the vessel and jurisdiction of the local courts to apply the remedy is saved. (§§ 24 and 256 of the United States Judicial Code, as amd.; U. S. Code, tit. 28, § 41 [3] and § 371 [3rd].) An action at common law was not available to plaintiff unless she alleged and established by proof that the Albee Company had failed to secure payment of compensation to Kuhn as provided in the Workmen’s Compensation Law. (Culhane v. Economical Garage, Inc., 195 App. Div. 108.) This she failed to do, but compliance with the law by Albee affirmatively appeared on the trial and her remedy against Albee under the Workmen’s Compensation Law is exclusive. (Workmen’s Compensation Law, § 11; Shanahan v. Monarch Engineering Co., 219 N. Y. 469.)

As to the liability of the Carlin Company, an entirely different situation arises. The action is not founded on a contract of employment. As pointed out, Kuhn was not an employee of Carlin. There was no contract of employment, express or implied, between Carlin and Kuhn. Recovery is sought against the third party, Carlin, permitted by the Decedent Estate Law on the usual grounds of negligence claimed to be available in such an action. . Carlin asserts that jurisdiction lies in admiralty alone and that all substantive rights of plaintiff and obligations of defendant must be determined by the principles and rules of the maritime law. Plaintiff asserts and it has been found, upon the facts, that a defective boiler, a part of the equipment of the steamship Observation, rendered the vessel unseaworthy. The explosion of the boiler and destruction of the ship occurred while the vessel was in navigable waters with plaintiff’s intestate on board. If liability exists thereby alone, it arose out of a maritime tort, not out of a contract of employment, and the tort was complete within the locality of the injury, thus laying the foundation for jurisdiction in admiralty. (The Plymouth, 3 Wall. [U. S.] 20.) Admiralty jurisdiction is not lost because the locality of the injury was in the East river within the boundaries of New York State (Waring v. Clarke, 5 How. [U. S.] 441), nor because the trip on which the injury occurred was exclusively limited to points of departure, sailing and destination within those boundaries. (Matter of Garnett, 141 U. S. 1.) Because of the location of the accident, the matter was not of local concern and the substantive rights and obligations of the parties arose not out of the local law of New York State, but under the maritime law of the United States (Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449; Messel v. Foundation Co., 274 U. S. 427, 429), while any appropriate remedy afforded by the common law and the New York State death statute is saved. (U. S. Code, tit. 28, § 41 [3]; Dec. Est. Law, § 130; Waring v. Clarke, supra; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372.) Notwithstanding the State court has concurrent jurisdiction with the Federal courts to entertain the suit (Messel v. Foundation Co., supra; Kellogg & Sons, Inc., v. Hicks, 285 U. S. 502, 514) and the action is brought in the State court, the principles and rules of the substantive maritime law are alone to be applied as ground, if any, for recovery. (Robins Dry Dock & Repair Co. v. Dahl, supra; Chelentis v. Luckenbach S. S. Co., supra; Southern Pac. Co. v. Jensen, 244 U. S. 205.)

We have already called attention to the arrangement for transportation between Carlin and the owner of the vessel. There was no express contract of carriage between the Carlin Company and Kuhn. Kuhn paid for his passage to the owner of the ship. The status of the Carlin Company was not that of a carrier of passengers. The vessel was not transferred to it for any purpose. But even though it were a quasi-charterer of the vessel due to the service rendered, it exercised no supervision or control of the equipment, operation or maintenance of the vessel. Captain Forsyth was originally and continued to be, after the agreement with Carlin, the owner, master and operator of the ship, and he and his own duly licensed and qualified engineer and crew had exclusive charge of it and of its operation. It was not used exclusively to transport employees to and from their work on Bikers Island. It was so used only when men went to work and when they returned from work when the day’s work was done. When not on the Carlin schedule, it was used for other ferry service. It was, in fact, a public ferry engaged only to transport workmen at such times as needed. Miller, one of Carlin’s employees, checked men at the dock and (without the knowledge of the Carlin Company) traveled on the boat for one hour each morning while men were being ferried across the river to check the number of men using the boat and to see that all fares were collected, and sometimes collected fares. This was of importance to Carlin, inasmuch as it was liable to Forsyth for any deficiency in the stipulated daily guaranty, but his presence at the dock or on the ferry has no other significance. Within or beyond the terms of the contract between Carlin and the city and the contract between Carlin and Forsyth, the extent of the connection of the Carlin Company with Forsyth in respect of the operation of the boat was to furnish time schedules for trips necessary for the carrying of the men, to give identification passes to and check the men who used the boat for transportation, to see that signs and notices were posted on the boat as an aid to Forsyth in controlling and handling the men and to see that Forsyth received a certain daily stipend from fares or otherwise for such use. Under those conditions, it was not responsible for the boat’s inspection, condition, maintenance, operation or navigation. (The Spokane, 294 Fed. Rep. 242 [C. C. A. 2d]; certiorari denied, 264 U. S. 583; The Allianca, 290 Fed. Rep. 450; affd., 294 Fed. Rep. 1020; certiorari denied, 264 U. S. 595; Hagar v. Clark, 78 N. Y. 45, 50, 55; Barnevo v. Munson S. S. Line, 239 N. Y. 486, 490; Barbaro v. Auditore Contracting Co., 215 App. Div. 595.)

The record shows that the Observation was a steam vessel one hundred and ten feet long with a beam of twenty-two feet, nine and one-half feet deep, with one main deck and a cover deck and with an authorized carrying capacity of 260 persons, and was duly licensed by Federal authorities to navigate the waters of the harbor of New York and its tributaries. Once each year her hull, boiler, machinery and equipment were inspected by employees of the Steamboat Inspection Service of the United States Department of Commerce. Her last inspection was on April 29, 1932, when she was found to be in a safe condition and seaworthy and a certificate to that effect, effective for one year, was thereupon issued and posted on the boat as required by law. One hundred and fifty pounds was the allowable steam pressure on the boiler. At the time of her last inspection, the boiler was given a complete internal and external examination, its staybolts were examined, and it was subjected to a hydrostatic pressure test of 225 pounds. The records of the Inspection Service in evidence show that the boiler had had five reinspections by five different boiler inspectors between April, 1931, and July, 1932, and no defects were found except one prior to April 29, 1932, which was ordered repaired and presumably this repair was made. At any rate, no defect was reported on the inspection on April 29th. Forsyth was and had been for at least forty years a master and pilot licensed as such, after required examinations, by the Federal government to operate and navigate steam and other vessels. The engineer likewise had the required government certificates. In the contract between Carlin and Forsyth, the latter guaranteed that the vessel was seaworthy and that a full crew would be employed. Carlin had a right to rely upon that guaranty and upon the certificate to that effect provided by the United States authorities who were charged with the duty of inspection and responsibility for the release of the vessel for service unless, in spite of such certificate and guaranty, the boiler was defective and the ship thereby unseaworthy and notice of such defect and unseaworthiness was brought home to the company.

Two days before the accident, Thomas. H. Duncan, who had been temporarily employed as a fireman on the boat to take the place of the regular fireman who was absent, had a conversation with James Bell, an employee of Carlin, and the engineer on the boat which he relates, in the main part, as follows: “ The Witness: Me and the engineer, and this man Bell were arguing about the boiler. He told me what he knew about it. Well, I said, ‘ come down and look at this ’ — The Court: Who is ‘he? ’ The Witness: Bell. I said, ‘Jump down and look at this thing here. Would you be on it? ’ And he said, ‘ Well, we are just trying to run this thing until we get another boat to take its place.’ ‘ Well,’ I said, ‘ it isn’t fit to run now.’ I said, ‘ I want to get what is coming to me and get off this thing quick.’ And he said, ‘ Well, stay until old man Forsyth comes back; and we might fix her up a little again and keep her going until we get this other boat.’ * * * I showed him the hot water — you know, steam and hot water coming out in the furnace, and on the side of the boiler, and it started running down to the ash can, leaking. * * * I even explained the staybolts to him. * * * I showed him, and tried to explain to him what the stay-bolts were. The staybolt was put in the boiler. * * * A staybolt was made with a thread to hold the entire length of it, and through the middle of that a hole is drilled. If the staybolt is broke in between the two sheets, the steam will come out through this test hole, and that’s what I was trying to explain to this man, and I said, ‘ You know the leg of this boiler is shot; it has been shot for years.’ ” Duncan quit that night. No direct evidence by any eyewitness was produced as to the cause of the explosion. A lunch room was operated on the boat and gasoline was used for cooking purposes. Whether the explosion occurred because of a leaky boiler was, of course, a matter of inference from expert testimony. But notice to Bell of the defective boiler was not notice to the Carlin Company. The Carlin Company was required by the city to employ one or more superintendents of construction with broad general experience in directing men on the various branches of the building work who should have “ full authority and shall carry out the directions of the Architect in regard to the removal of rejected material, the employment of sufficient men, the procurement of suitable material, and the method of doing the work, ” and should see that subcontractors and their help should do their work in accordance with the specifications. Conforming with this requirement, the contractor chose Bell as general superintendent of construction. His duties and authority were limited to the building or construction work. Henry V. Carlin had general charge and superintendence for the Carlin Company of everything required in connection with the city contract. Bell had nothing to do at any time with transportation other than to arrange schedules and give instructions concerning the posting of notices. Plaintiff established as part of her case that J. Francis Carlin, an officer of the Carlin Company, had exclusive charge of all arrangements for and supervision over ferry service.

It is well settled that the power to act and bind a principal comes from the acts of the principal and not from his agent. (Bickford v. Menier, 107 N. Y. 490; Edwards v. Dooley, 120 N. Y. 540, 551.) The court erroneously charged that knowledge of Bell was knowledge of the Carlin Company and that if the jury found as a fact that the conversation between Duncan and Bell took place defendant Carlin was liable. An exception to the erroneous charge was preserved.

Assuming, without deciding, that the safe place doctrine of the common law has been imported into the general maritime law and that Forsyth stood in the position of a subcontractor of Carlin, it will not aid plaintiff for, even under those conditions, there was no duty on the part of Carlin to make any inspection nor to make repairs of defective means in the exclusive possession and operation and under the control of Forsyth. (Iacono v. Frank & Frank Contracting Co., 259 N. Y. 377, 381.)

The judgment of the Appellate Division and that of the Trial Term against P. J. Carlin Construction Company should be reversed and a new trial granted, with costs to abide the event. Otherwise the judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Judgment accordingly.