text:
    Werner Gallewski, as Ancillary Administrator of the Estate of Fritz B. Gutmann, Deceased, Respondent, v. H. Hentz & Company, Appellant.
    Argued May 17, 1950;
    decided July 11, 1950.

      Donald Marks, John Kilmartin, Julius B. Baer and Arthur M. Bullowa for appellant.
    I. Section 27 of the Civil Practice Act, prior to its amendment by chapter 326 of the Laws of 1949, did not toll the Statute of Limitations during the war because it did not operate in favor of a citizen of an enemy-occupied nation. (Gregoire v. G. P. Putnam’s Sons, 298 N. Y. 119; Arnold v. Mayal Realty Co., 299 N. Y. 57; Medvedieff v. Cities Service Oil Co., 35 F. Supp. 999; Nagle v. Loi Hoa, 275 U. S. 475; American Ins. Co. v. Canter, 1 Pet. [U. S.] 511.) II. Sections 27 and 28 of the Civil Practice Act, as amended by chapter 326 of the Laws of 1949 did not toll the Statute of Limitations during the war because the amended sections did not apply to plaintiffs cause of action. (Hopkins v. Lincoln Trust Co., 233 N. Y. 213; Dunbar v. Boston & Providence R. R., 181 Mass. 383; Jacobus v. Colgate, 217 N. Y. 235; Shielcrawt v. Moffett, 294 N. Y. 180; Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261; O’Reilly v. Utah,Nevada & Cal. Stage Co., 87 Hun 406; Isola v. Weber, 147 N. Y. 329; United States v. Jin Fuey Moy, 241 U. S. 394; Saltser & Weinsier v. McGoldrick, 295 N. Y. 499.) III. Revival of plaintiff’s cause of action by the amendment of sections 27 and 28 of the Civil Practice Act by chapter 326 of the Laws of 1949 was an unconstitutional exercise of legislative power. Plaintiff’s cause of action was barred by the Statute of Limitations prior to the amendment of sections 27 and 28 of the Civil Practice Act by chapter 326 of the Laws of 1949. (Nathan v. Equitable Trust Co., 250 N. Y. 250.) IV. Chapter 326 of the Laws of 1949, as applied to revive plaintiff’s cause of action, violates the Fourteenth Amendment of the United States Constitution and section 6 of article I of the New York State Constitution. (Hopkins v. Lincoln Trust Co., 233 N. Y. 213; Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271; Huffman v. Alderson’s Administrator, 9 W. Va. 616; Calhoun v. Kellogg, 41 Ga. 231; Germania Sav. Bank v. Village of Suspension Bridge, 159 N. Y. 362.) V. Chapter 326 of the Laws of 1949, as applied to revive plaintiff’s cause of action, violates the Fourteenth Amendment of the United States Constitution and section 11 of article I of the New York State Constitution in that it denies defendants the equal protection of the law. (Smith v. Cahoon, 283 U. S. 553; Power Mfg. Co. v. Saunders, 274 U. S. 490; People ex rel. Farrington v. Mensching, 187 N. Y. 8; Merchants Refrig. Co. v. Taylor, 275 N. Y. 113.) VI. The Statute of Limitations was not tolled under the provisions of section 24 of the Civil Practice Act. (Ex parte Colonna, 314 U. S. 510; Chemacid S. A. v. Ferrotar Corp., 51 F. Supp. 756.)

      Milton S. Gould and Paul Simon for respondent.
    I. Section 27 of the Civil Practice Act, as amended by the Laws of 1949, is applicable in favor of a citizen of an enemy-occupied country. II. Sections 27 and 28 of the Civil Practice Act, as amended by chapter 326 of the Laws of 1949, apply to plaintiff’s cause of action and effectively toll the Statute of Limitations during the war. (Nathan v. Equitable Trust Co., 250 N. Y. 250; Campbell v. Holt, 115 U. S. 620; Chase Securities Corp. v. Donaldson, 325 U. S. 304.) III. Section 27, as amended by the Laws of 1949, is a constitutional exercise of legislative power. (Campbell v. Holt, 115 U. S. 620; Chase Securities Corp. v. Donaldson, 325 U. S. 304; Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271; People ex rel. Farrington v. Mensching, 187 N. Y. 8.) IV. The Trading with the Enemy Act imposed a statutory prohibition against the commencement of an action for the enforcement of plaintiff’s claim within the meaning of section 24 of the Civil Practice Act, suspending the Statute of Limitations during the period from December 7, 1941, to March, 1945. Consequently, this action was commenced within the applicable period of limitation. (Ex parte Colonna, 314 U. S. 510; Ex parte Kawato, 317 U. S. 69; Sundell v. Lotmar Corp., 44 F. Supp. 816; The Santa Lucia, 44 F. Supp. 793; The Leontios Teryazos, 45 F. Supp. 618; Rothbarth v. Herzfeld, 179 App. Div. 865, 223 N. Y. 578; H. P. Drewy, S. A. R. L. v. Onassis, 266 App. Div. 292, 291 N. Y. 779.)
   Conway, J.

Defendant appeals, by permission, from an order denying a motion for summary judgment seeking a dismissal of the complaint upon the ground that the cause of action alleged therein did not accrue within the time limited by law for the commencement of the action.

In November of 1934, Fritz B. Gutmann, a citizen and resident of the Netherlands, entered into an agreement with defendant, a New York brokerage firm, whereby defendant agreed to buy and sell securities for Gutmann “ upon his instruction and request, and to act with respect to the proceeds of such sales in accordance with his instructions.” From time to time, defendant, at Gutmann’s request, advanced all or part of the purchase price paid for the securities and debited his account with said amounts, plus interest. On April 30, 1940, pursuant to this agreement, defendant held for Gutmann’s account a list of securities subject to an indebtedness for advances and interest of $23,919.35.

Between May 14,1940, and May 22,1940, defendant " without the knowledge, consent and authorization of decedent [Gutmann], and in violation of the agreement of employment ”, sold the major portion of the securities held for Gutmann’s account and, out of the proceeds of such sales, reduced Gutmann’s indebtedness to it. Prior to the sales, defendant had not demanded payment of the indebtedness, nor had it notified Gutmann of the time and place of such sales, as required by law and agreement of employment ” between Gutmann and defendant.

The Netherlands was invaded by the German Army on May 10, 1940, and was quickly occupied. During the occupation, Gutmann was arrested and deported to a concentration camp in Czechoslovakia, then occupied by the German Army, and there detained. He has not been heard of since.

After the liberation of the Netherlands in March of 1945, a curator of Gutmann’s assets was appointed pursuant to the law of that country. After repeated requests by the curator, defendant disclosed the above-mentioned sales between May 14 and May 22,1940, in a letter dated April 4,1946. In May of 1946, in accordance with the law of the Netherlands, Gutmann’s death was established as of April or May, 1944, by decree of a court. The curator was then relieved of office and Gutmann’s children, for the first time, were permitted to take possession of his assets. In October of 1946, plaintiff was appointed ancillary administrator of Gutmann’s estate by the Surrogate’s Court of New York County.

In this action, the ancillary administrator seeks to recover $90,135.59, representing the highest intermediate value of the securities allegedly sold without authorization, and the total of the dividends and interest which would have accrued on said securities.

The defense with which we are here concerned is that the action is barred by the Statute of Limitations. Defendant contends that the latest date on which the cause of action for breach of contract could have accrued was May 22, 1940, and, since this action was commenced on March 29, 1948, seven years, ten months and seven days later, it is barred by the six-year Statute of Limitations. (Civ. Prac. Act, § 48.)

In its memorandum denying defendant’s motion for summary judgment, Special Term held that section 24 of the Civil Practice Act, read in connection with the Trading with the Enemy Act (U. S. Code, tit. 50, Appendix, § 2) tolled the Statute of Limitations from December, 1941 (the declaration of war by the United States against Germany), to March, 1945 (the time, as agreed upon by the parties, of the liberation of the Netherlands) and that, deducting this period of approximately three years and three months, the action was timely commenced. The theory adopted by Special Term was that, under section 24, ‘ ‘ where the commencement of an action has been stayed by * * * statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action ”, and that since residents of enemy-occupied countries were themselves “ enemies ” within the meaning of the Trading with the Enemy Act they were prohibited from maintaining any actions in the courts of this State during the continuance of the state of war and the occupation. (195 Misc. 507.)

The Appellate Division, in affirming, did not decide whether Special Term was correct in denying the motion on the authority of section 24 of the Civil Practice Act and the Trading with the Enemy Act (supra). It said: “ Regardless of whether the limitation of time in which to commence this action would otherwise be regulated by section 24 of the Civil Practice Act, the action is included in the more restricted class defined by section 27.” (276 App. Div. 219, 220.) Section 27 of the Civil Practice Act, thus mentioned by the Appellate Division, was amended, together with section 28, upon the recommendation of the Law Revision Commission after the commencement of this action but before the decision on the motion at Special Term. (L. 1949, ch. 326.) In their amended forms the sections read as follows (italicized matter added in 1949):

“ § 27. Effect of war of right of alien. Where a person is disabled to sue in the courts of the state by reason of either party being an alien subject or a citizen of a country at war with the United States, whether the cause of action arose during or prior to the period of such disability, the time of the continuance of the disability is not a part of the time limited for the commencement of the action.
“ § 28. Disability must exist when right accrues. Except as provided in section twenty-seven, a person cannot avail himself of a disability unless it existed when his right of action or of entry accrued.”

Prior to the amendment, it had been held by this court in Nathan v. Equitable Trust Co. (250 N. Y. 250) that the extension of time granted by section 27 was not available to a citizen or subject of an enemy power where the right to sue existed before the declaration of war. It was unquestionably to change this rule in the Nathan case (supra) that the Legislature amended sections 27 and 28 in 1949 in the manner above noted.

The Appellate Division construed section 27, as above quoted, to include a person situated as was Gutmann in the instant case. The court felt that the “ intention ” of section 27, would seem to be broad enough to include citizens of enemy-occupied countries.” (P. 220.) The court then considered the problem of whether the amended statute could constitutionally revive a cause of action which was already barred (by virtue of the rule in the Nathan case, supra) when the amendment was enacted. There was no doubt as to the legislative intent in this respect, for in passing chapter 326 of the Laws of 1949, the Legislature had, in section 3 thereof, provided: “ § 3. This act shall take effect immediately and shall apply to actions heretofore accrued or hereafter accruing and whether or not such actions have heretofore been barred by any statute of limitations, provided, however, that nothing herein contained shall operate to revive a cause of action heretofore barred where such revival would affect an interest in property which has resulted from the expiration of the time heretofore limited by law for the commencement of an action.”

By express direction therefore, this was a revival statute. The proviso was added to meet the constitutional test first stated in Campbell v. Holt (115 U. S. 620), and which was recently reaffirmed and explained by the Supreme Court of the United States in Chase Securities Corp. v. Donaldson (325 U. S. 304, 311-312) as follows: “ In Campbell v. Holt, supra, this Court held that where lapse of time has not invested a party with title to real or personal property, a state legislature, consistently with the Fourteenth Amendment, may repeal or extend a statute of limitations, even after right of action is barred thereby, restore to the plaintiff his remedy, and divest the defendant of the statutory bar. This has long stood as a statement of the law of the Fourteenth Amendment * * *.”

In the case at bar the Appellate Division found it unnecessary to decide whether the rule of Campbell v. Holt (supra), is generally applicable in New York State. It pointed out that the question was mentioned but specifically reserved in two cases in this court — Hopkins v. Lincoln Trust Co. (233 N. Y. 213, 215), and Robinson v. Robins Dry Dock & Repair Co. (238 N. Y. 271, 276-277). The Appellate Division acknowledged that most States hold it is beyond the power of the Legislature to revive causes of action after the limitation period has expired, regardless of whether they are in rem or in personam. (276 App. Div. 221.) Nevertheless, the court said (p. 222), this rule is not absolute, and does not invalidate legislation lifting the bar where the circumstances are such as to indicate the presence of a strong moral obligation to do so.” After citing the Robinson case (supra), and Huffman v. Alderson’s Administrator (9 W. Va. 616) (a Civil War case posing the same problem), the court said (276 App. Div. 222): “ The obstruction to the prosecution of an action created by war conditions was regarded as a consideration of so compelling and extraordinary a nature as to justify a departure from the general rule.”

After the Appellate Division granted leave to appeal to this court, and on April 17, 1950, the Legislature further amended the Civil Practice Act, by adding a new section 28-a, effective immediately, which reads as follows (L. 1950, ch. 759, § 1):

§ 28-a. Effect of war on non-enemies in enemy country or enemy-occupied territory. If a person entitled to maintain an action, other than a person entitled to the benefits of section twenty-seven, was a resident of or a sojourner in a foreign country with which the United States or any of its allies were at war during the period beginning September first, nineteen hundred thirty-nine and ending August fourteenth, nineteen hundred forty-five, or any territory occupied by the government of such foreign country, the period of such residence or sojourn during which such foreign country was so at war with the United States or any of its allies, or during which such territory was so occupied, shall not be a part of the time limited in this article for commencing the action, provided, however, that the time limited for the commencement of such action shall not hereby be extended for more than one year after the effective date of this section.” Section 2 of chapter 759 is a provision identical with section 3 of chapter 326 of the Laws of 1949, quoted (supra), page 171, to the effect that, except in the case of actions involving title to property, the new section should apply to causes of action theretofore accrued and barred.

In a case such as this, we apply the law as it exists at the time of our decision. (Matter of Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494; Robinson v. Robins Dry Dock & Repair Co., supra, p. 281; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419, 424.)

The new section 28-a of the Civil Practice Act eliminates for us the troublesome construction problem which had been before the Appellate Division with respect to the application of section 27 to this case. Likewise, we find it unnecessary to consider plaintiff’s contention with respect to the applicability of section 24 of the Civil Practice Act. It is now clear that the new section 28-a, by its terms, applies to the decedent Gutmann, who was a resident of or a sojourner in a territory occupied by a government with which we or our allies were at war between September 1,1939, and August 14,1945. We are still faced, however, with the problem of whether the Legislature, in enacting section 28-a, could constitutionally revive plaintiff’s alleged cause of action which had been completely barred prior to the amendment. This, as both parties agreed upon the oral argument, is the decisive question on the present appeal.

As in the Hopkins and Robinson cases (supra), it is not necessary for us to approve or disapprove of the constitutional doctrine expressed in Campbell v. Holt (supra). Insofar as the language of that opinion declares that a State cannot constitutionally revive a cause of action affecting title to property, it is inapposite, both because the cause of action here involved is not of that type, and also because our statute by its terms does not apply to such a cause of action. Nor is it now necessary for us to adopt the broad and unqualified view that a State may constitutionally revive any personal cause of action, whatever the circumstances.

We choose to treat the case within the limits of our decision in the Robinson case (supra). There, the plaintiff’s husband died of injuries sustained in the course of his employment as a maritime worker. The widow received an award of workmen’s compensation insurance under our State act, pursuant to a congressional delegation of such power to the States. The United States Supreme Court subsequently held that act of Congress unconstitutional and payment of compensation to plaintiff was accordingly terminated. The widow then sued to recover damages for defendant’s negligence. The action was commenced more than two years after its accrual and both courts below held it barred under the applicable Statute of Limitations. After the Appellate Division decision and before the appeal to this court, the Legislature enacted a new section of the Civil Practice Act providing that in such a case the plaintiff might commence an action after the time limited “ and within one year after this act goes into effect ”. We held that the revival of plaintiff’s cause of action, under the circumstances, was not unconstitutional.

Judge Lehman, writing for the court, noted that the amendment resulted " in depriving the defendant of a valid defense ’ ’ (p. 276), and he noted the conflict of authority on the question of the Legislature’s power so to do. He then said (p. 277): it * # * but upon this appeal we need not decide which line of authority the courts of this State should eventually follow for the exercise of the legislative power may be upheld in this case upon grounds which are applicable even if the general power to revive a cause of action for personal debts or a cause of action for tort is doubted or denied.” After observing " the difficulty and the danger of giving a general judicial definition to the extent of a limitation imposed by the Constitution ”, he continued (p. 279): " * * * All the cases including Campbell v. Bolt (supra) recognized that in some cases the right to interpose a bar to a right of action constitutes in effect a property right which the Legislature may not take away, but at the other extreme are cases where both instinct and reason revolt at the proposition that redress for a wrong must be denied because the Legislature may not remove a statutory bar which has conferred an immunity which is contrary to all prevailing ideas of justice.” (Emphasis supplied.)

The Robinson case (supra) must be read, at the very least, as holding that a revival statute is not necessarily and per se void as a taking of " property ’ ’ without due process of law. The case may be read, we think, as holding that the Legislature may constitutionally revive a personal cause-of action where the circumstances are exceptional and are such as to satisfy the court that serious injustice would result to plaintiffs not guilty of any fault if the intention of the Legislature were not effectuated. This is no inclusive and categorical rule such as that expressed in Campbell v. Holt (supra), which many State courts have been unwilling to accept. The tests suggested in the Robinson case (supra) leave the court free to approach each revival statute on its individual merits, in the light of its own peculiar circumstances and setting.

The case at bar presents a situation in which revival — even if it be considered an extreme exercise of the legislative power — is entirely proper. World War II was an upheaval of unparalleled magnitude. The German occupation of its surrounding European nations and the allied blockade, as we know, resulted in a complete and thorough disruption of communication by those on the mainland with the outside world. Aside from the question of legal disability to sue, the citizens and residents of occupied territory were, during such occupation, under a practical and total inability to commence action in the courts of this State to protect and effectuate their rights. To permit the Statute of Limitations to run against their claims during the continuance of such inability would not accord with elementary notions of justice and fairness. Like Robinson v. Robins Dry Dock & Repair Co. (supra), this is a case “ where both instinct and reason revolt at the proposition that redress for a wrong must be denied because the Legislature may not remove a statutory bar which has conferred an immunity which is contrary to all prevailing ideas of justice.” (P. 279.) Here, as in the Robinson case, the extension of the time to bring * * * action was reasonable and this exercise of the legislative power should not be declared invalid because of a constitutional limitation of doubtful application.” (P. 280.)

The facts of the instant case strikingly illustrate the type of injustice this legislation was intended to remedy. The decedent, Gutmann, was a citizen and resident of the Netherlands in May, 1940, when the German Army invaded and occupied that country. In the two weeks following the invasion (accepting as we must the allegations of the complaint) the defendant, without authorization and in violation of its contract of employment, sold the major portion of Gutmann’s securities in order to reduce his debit account. Gutmann was seized, deported to a concentration camp in Czechoslovakia and never heard from again.

We conclude that chapter 759 of the Laws of 1950, adding section 28-a to the Civil Practice Act, was constitutional and that under the terms of that section, the period of Gutmann’s residence or sojourn in territory occupied by the German forces is not a part of the time limited for commencing the action. That period would seem to be from May, 1940 (the time of the occupation), at least to April or May, 1944 (the time as of which Gutmann was declared deceased), viz., a period of about four years. Deducting that period from the normal time limited for the commencement of an action of this type, the instant action, commenced on March 29, 1948, was brqnght within six years from May, 1940, when .it accrued.

It is unnecessary to determine the extent to which the protection of section 28-a would he available in other situations not here presented.

The order should be affirmed, with costs. The first question certified is answered in the affirmative. The second and third questions certified are not answered.

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur.

Order affirmed, etc.


source: Caselaw Access Project

author: Dye, J.

license: Public Domain

text:
    Albert J. Chadwick, as Administrator of the Estate of Robert Chadwick, Deceased, Appellant, v. City of New York, Respondent.
    Argued May 22, 1950;
    decided July 11, 1950.

      Morris Zweibel, James T. McKeon and Robert X. Kuzmier for appellant.
    I. Plaintiff is entitled to every fair intendment and inference on a motion to dismiss a complaint. (Kraus v. Birnbaum, 200 N. Y. 130; Wheaton v. Newcombe, 16 Jones & Sp. 215; McNally v. Phoenix Ins. Co., 137 N. Y. 389; Kirwan v. American Lithographic Co., 197 N. Y. 413; Sheridan v. Brooklyn & Newtown R. R. Co., 36 N. Y. 39; Schwarzbaum v. Third Ave. R. R. Co., 54 App. Div. 164.) II. A question of fact as to defendant’s negligence was presented which should have been submitted to the jury for their determination. (Woloszynowski v. New York Central R. R. Co., 254 N. Y. 206; Bragg v. Central New England Ry. Co., 228 N. Y. 54; Mikorski v. City of New York, 270 App. Div. 769; Lee v. Pennsylvania R. R. Co., 269 N. Y. 53; McKeon v. Steinway Ry. Co., 20 App. Div. 601; Dino v. Eastern Glass Co., 231 App. Div. 75; Kyff v. Grand Central Wicker Shop, 237 App. Div. 539; Storr v. New York Central R. R. Co., 261 N. Y. 348; Elliott v. New York R. T. Corp., 293 N. Y. 145; Trimble v. City of New York, 275 App. Div. 169, 299 N. Y. 800; Noseworthy v. City of New York, 298 N. Y. 76.)

      John P. McGrath, Corporation Counsel (Joseph F. Mulqueen, Jr., and Seymour B. Quel of counsel), for respondent.
    I. As deceased was a trespasser, defendant owed him no duty except to refrain from willfully, wantonly or recklessly exposing him to danger. The record fails to disclose such misconduct on the part of defendant. (Jennings v. Delaney, 229 App. Div. 439, 255 N. Y. 626; Thibodeau v. Gerosa Haulage & Warehouse Corp., 252 App. Div. 615, 278 N. Y. 551; Ralff v. Long Island R. R. Co., 266 App. Div. 794, 292 N. Y. 656.) II. The doctrine of the last clear chance is not applicable because there is no proof that the operator of the vehicle upon which decedent and his brother were trespassing knew of the peril in which decedent had negligently placed himself. The operator, therefore, cannot be charged with failure to avail himself of a clear chance to avoid the accident. Moreover, there is not the slightest proof, either actual or by way of inference, that the tapping on the window by one of the boys warned the operator that a second person was in peril. (Elliott v. New York R. T. Corp., 293 N. Y. 145; Storr v. New York Central R. R. Co., 261 N. Y. 348; Hernandez v. Brooklyn & Queens Tr. Corp., 284 N. Y. 535; Panarese v. Union Ry. Co., 261 N. Y. 233; Duschnik v. Deco Restaurants, 276 N. Y. 439; Wright v. Union Ry. Co., 224 App. Div. 55, 250 N. Y. 526.)
   Dye, J.

Robert Chadwick, then ten years of age, met his death under the wheels of a truck belonging to the defendant city under circumstances which, it is claimed, amounted to actionable negligence on the part of the driver under the.doctrine of the last clear chance who failed to bring his truck under such control as to avoid injuring Robert after he knew that the boy was in peril. The dismissal of the complaint at the close of all the proof has been affirmed in the Appellate Division by a divided court. Under such circumstances the plaintiff-appellant here is entitled to the most favorable inferences reasonably to be drawn from his proof.

On March 21, 1945, a rainy day, the infant decedent Robert and his brother John, aged twelve, while returning home from school, hitched a ride on a sanitation department truck which had stopped at the red light at the corner of Sunrise Highway and South Conduit Street, Queens. According to John’s testimony, the boys climbed on the right front fender and sat on a corrugated metal step fastened to the top of the fender and designed for use by persons mounting into the cab. John faced the rear of the vehicle with his feet braced against its body while Robert crouched between John’s legs on the corner of the fender with his head on John’s stomach, his feet resting on a little step fastened to the lower corner of the truck body. Both boys held on to a perpendicular rod or handhold attached to the body of the truck just back of the cab. The cab door had a glass window about 3 feet above the fender’s step and concededly the driver was unable to see the boys on the fender. When the light changed, the truck, which was returning to its garage, proceeded at a moderate speed along South Conduit Street to 150th Avenue where the boys had planned to alight. However, the truck did not stop as they expected but made a right turn into 150th Avenue — at this point an unpaved bumpy road — without slacking speed and no attempt was made to get off. Robert was bounced from his precarious perch and slipped down the fender. He clung to the handhold with his feet dragging in the road for a distance of about 300 feet when he finally lost his grip and fell under the rear wheel sustaining fatal injuries. The distance he was dragged is fixed with reasonable certainty in the evidence — his body having been run over at approximately the intersection of 127th Street. John testified that when Robert first slipped (at the 150th Avenue intersection) he grabbed for him but missed and, fearing the worst, he began banging on the cab window with his right hand and screaming stop ”. The driver, according to John, continued on for a short block (to 126th Street) and a long block (to 127th Street) where Robert fell under the wheel. The truck was finally brought to a stop at 128th Street. This testimony is corroborated circumstantially by officers in charge of the police investigation and a witness who came to the scene almost immediately after the accident. Defendant’s driver testified that when he made his turn “ ‘ I see little hand — I don’t see no head, no body, just little hand — knock on my window ’ ” and that ‘ I stopped immediately, right there.’ ” He was asked “ ' did you figure somebody was in danger? A. Well, I don’t hear nobody, so I figure something is in danger must he, to he there.’ ” (Emphasis supplied.)

The underlying question on this appeal is whether by any reasonable inference a jury could find that the driver was apprised of the peril to Robert in time to avoid running over him, that is, would a jury be able to say that he was in fact attracted by the rapping at.the window some time prior to reaching 127th Street and that he ignored the warning in an unreasonable manner when he still had a clear opportunity to avoid the accident? This brings into play the last clear chance doctrine which arises in situations where the plaintiff’s prior act — here hitching the ride in the first instance — although susceptible of the inference that he was contributorily negligent, was not necessarily the proximate cause of the accident which rather was due to the defendant’s failure to heed the peril and take whatever reasonable steps the circumstances indicated to avoid injury to the plaintiff. Obviously, in order to have the opportunity of preventing injury, the proof must support the inference that defendant had actual knowledge of the peril. This is precisely the rule enunicated in Woloszynowski v. New York Central R. R. Co. (254 N. Y. 206, 208) and applied both before (Bragg v. Central New England Ry. Co., 228 N. Y. 54; Wright v. Union Ry. Co., 250 N. Y. 526), and since (Storr v. New York Central R. R. Co., 261 N. Y. 348; Panarese v. Union Ry. Co., 261 N. Y. 233; Elliott v. New York R. T. Corp., 293 N. Y. 145; Noseworthy v. City of New York, 298 N. Y. 76; Crane v. Long Island R. R. Co., 300 N. Y. 711). (See Restatement, Torts, § 479.) While not all of these cases were determined in favor of plaintiffs — note, e.g., the Woloszynowski and Storr decisions (supra) —the principle remains undisturbed. In the Panarese case (supra) we ruled out the last clear chance doctrine on a showing that the plaintiff, with utter disregard for his own safety, ran headlong into an oncoming trolley. The time sequence, however, is all important and furnishes a clear basis for distinction (Bragg v. Central New England Ry. Co., supra; Prosser on Torts, § 54). Panarese’s contributing negligence continued right up to the point of impact as an active factor in causation, whereas here young Robert’s mounting the fender was a single, noncontinuing act completed long before he began to slip (cf. Hernandez v. Brooklyn & Queens Tr. Corp., 284 N. Y. 535).

The defendant makes a strong argument for distinguishing the Elliott and other cases (supra), on the theory that even though John’s rapping might well give rise to an inference that he was in peril there was nothing to warrant an inference that Robert, an unseen second party, was also in jeopardy. This, of course, poses a neat question and one that does not seem to have been considered in any of the reported cases. Nevertheless, in this record, it appears by an admission that defendant’s employee accepted the hand at the window as a signal that someone was endangered. To a large degree the last clear chance doctrine necessarily arises out of circumstances subject to conflicting inferences and it may not be categorically stated that its applicability is limited to situations where a defendant has precise knowledge of both the exact "nature of the danger and of the particular individual threatened so long as there is proof to support an inference that someone is in peril.

Where a plaintiff has become, through his own prior negligence, so hopelessly implicated in a dangerous situation that he has lost all ability to extricate himself, responsibility for the ensuing accident may be shifted to the one who has a recognizable opportunity to save him. This is clearly the import of our later decisions — note the Elliott and Crane cases (supra) — where we, in effect and in fact, have ruled that when the defendant first became conscious of the impending danger and whether he then did all a reasonable man would under the circumstances to prevent disaster were questions of fact for the jury.

Professed ignorance of the danger is not alone as a matter of law, a defense if the circumstantial evidence might show that the defendant in fact had the requisite knowledge upon which a a reasonably prudent man would act (Woloszynowski v. New York Central R. R. Co., 254 N. Y. 206, 209, supra; Crane v. Long Island R. R. Co., supra). The driver’s testimony is not, therefore, conclusive but is to be subjected to the test of credibility which is for the jury. We are satisfied that this record presents questions of fact which, upon a proper charge, should have been left to the jury.

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

Lewis, Conway, Desmond and Froessel, JJ., concur with Dye, J.; Loughran, Ch. J., and Fuld, J., dissent.

Judgments reversed, etc.


text:
    Timothy F. Broderick, Appellant, v. Cauldwell-Wingate Company, Inc., Respondent, et al., Defendants.
    Argued April 11, 1950;
    decided July 11, 1950.

      Vine H. Smith, Robert Kilroe and Joseph A. McLaughlin for appellant.
    I. There is evidence to support the verdict. (Regan v. Eight Twenty Fifth Corp., 287 N. Y. 179; Koenig v. Patrick Constr. Corp., 298 N. Y. 313; Rosenberg v. Schwartz, 260 N. Y. 162; Hanley v. Central Sav. Bank, 280 N. Y. 734; Hooey v. Airport Constr. Co., 253 N. Y. 486; De Lee v. Pardy Constr. Co., 249 N. Y. 103; Caspersen v. La Sala Bros., 253 N. Y. 491; Zurich Gen. Accident & Liability Ins. Co. v. Childs Co., 253 N. Y. 324.) II. The dismissal of the complaint was erroneous for the further reason that the platform where the men were working and which collapsed, was a scaffold within the meaning of the State statutes and rules. III. The judgment of the Trial Term should be reinstated. (Cornbrooks v. Terminal Barber Shops, 282 N. Y. 217; Saulsbury v. Braun, 223 App. Div. 555, 249 N. Y. 618; Harrison v. Argyle Co., 128 App. Div. 82, 198 N. Y. 628; Williams v. First Nat. Bank of Syracuse, 167 N. Y. 594; Galloway v. Erie R. R. Co., 116 App. Div. 777,192 N. Y. 545.)

      John F. X. Finn, Norman C. Mendes and Alfred A. Giardino for respondent.
    I. Where carpentry work upon a building in course of construction is being done by a subcontractor in full charge thereof, it is contributory negligence as a matter of law for a carpenter employee of the carpentry subcontractor to venture out upon a deck which he was building when he knew that neither he nor his employer (the carpentry subcontractor) had provided for said deck either of two required safety devices, which it was the duty of said carpentry subcontractor to provide therefor, viz. (1) shoring underneath or (2) a “ strong-back ” or overhead support. A fortiori where plaintiff himself was the very person who had the duty of installing the “ strongback ” or overhead support. (Sieger v. Crow Constr. Co., 235 App. Div. 587; Burnstein v. Haas, 298 N. Y. 596.) II. A statement allegedly made from the ground floor by the general contractor’s superintendent in response to a question from the first floor above, asked by the subcontractor’s employee who was erecting a deck there and who was subsequently injured, that “ There are no shores going in there. Go ahead. It is all right ” was in no event an assurance that the alternative safety device of “ strongback ” or overhead support usually provided by carpenters for their own deckings could be or should be omitted. Nor was said alleged statement an assumption of control by the general contractor of the method of doing the carpentry work, which was entirely under the decision, direction and control of the carpentry subcontractor. (Moore v. Wills, Inc., 250 N. Y. 426; Ahbol v. Harden Contr. Co., 265 N. Y. 564; Iacono v. Frank & Frank Contr. Co., 259 N. Y. 377; Miller v. Home Owners’ Loan Corp., 263 App. Div. 607; Burke v. Ireland, 26 App. Div. 487; Callan v. Pugh, 54 App. Div. 545; Dimare v.
      Driscoll Co., 241 App. Div. 736.) III. A wooden “ form ” or decking, for use in laying a concrete floor, but not for workmen to walk on or stand on, is not a “ scaffold ” under the Labor Law. (Adelstein v. Roebling Constr. Co., 95 Misc. 125; Caddy v. Interborough R. T. Co., 195 N. Y. 415; Haughey v. Thatcher, 89 App. Div. 375; Brady v. Pennsylvania Steel Co., 134 App. Div. 372; Welk v. Jackson Architectural Iron Works, 184 N. Y. 519.)
   Dye, J.

Plaintiff-appellant, while employed as a carpenter on a construction job, sustained severe injuries when formwork which he was building for a concrete floor collapsed. He has now sued the general contractor, Cauldwell-Wingate Company, Inc., hereinafter referred to as Cauldwell, the defendant-respondent on this appeal, asserting two causes of action, the first based upon common-law negligence and the second upon a failure to furnish safe scaffolding in violation of section 240 of the Labor Law. The Chittenden Lumber Co., hereinafter referred to as Chittenden, was also joined as a codefendant charged with furnishing unsafe and defective materials, against whom Cauldwell filed a cross complaint for recovery over in the event that judgment was had against it.

At the end of plaintiff’s case, the trial court dismissed all pleadings as to Chittenden and, at the end of the entire case, the second cause of action against Cauldwell on the statutory violation. The case was eventually submitted to the jury on the issues of common-law and contributory negligence and resulted in a verdict in favor of the plaintiff on which judgment was entered. On appeal, the Appellate Division unanimously affirmed the dismissal of the pleadings as to Chittenden but, by a divided court, reversed the judgment in plaintiff’s favor and dismissed the surviving first cause of action based on a common-law tort.

Viewing the evidence in the light of the most favorable inferences, plaintiff can be said to have established that, on and before November 18,1947, he was employed by Brennan & Sloan, subcontractors for the carpentry work in the erection of forms for concrete flooring at the United States Veterans’ Hospital, Fort Hamilton, Brooklyn. These concrete floors were to be poured in sections of the steel framing — designated as bays ” — which were about 20' x 20' in area. Before pouring, each bay was planked over with a retaining platform or deck which, in turn, was supported — according to the expert testimony —- by either of two recognized methods, either by laying the deck on a 4 x 6 beam shored underneath by props resting on a “ mudsill ” (a base of heavy planking to keep the shores from sinking into soft ground) or by “ strongbacks ” (4x6 timbers laid across the top of the steel framing from which the deck was suspended by wires). Both methods were variously used on the job except that when the work area or other construction made it infeasible, a bay might be temporarily by-passed.

On the day in question, plaintiff and one Birkland, were putting in the formwork in a bay. Noticing that there was neither shoring nor strongbacks, plaintiff looked about for his immediate superior, Mr. Fischer, for instructions. Finding that Fischer was not in the vicinity, he called to two men on the ground below, one of whom he recognized as Mr. Paterno, Cauldwell’s general superintendent. By plaintiff’s testimony — which was flatly contradicted by Paterno — the following occurred: “ I hollered down to the man, ‘ Are you going to put any shores underneath this 4x6?’ The man looked up and he said, There are no shores going in there. Go ahead. It is all right.’ ” (Emphasis supplied.) Other witnesses substantially corroborated plaintiff’s version of this conversation.

Plaintiff and his partner, working from a steel beam, then proceeded to deck over the bay. In finishing the work, however, it became necessary for them to move out onto the deck at which time the 4x6 broke at a knothole, precipitating the deck and both men twenty-five or thirty feet to the ground, resulting in severe personal injuries of which plaintiff now complains.

From the expert testimony, the jury could have found that, although subsoil utilities were at the time going in below this particular bay, the necessary shoring could have been accomplished by bridging the ditches, and, in that manner, securing a foundation for the mudsill. Of course, there was also the possibility of using strongbacks. In either event, it is undisputed that it was the responsibility of plaintiff’s employer to supply whatever supports for formwork as were needed and that plaintiff was familiar with these normal precautions as it was part of his job to install them. However, the alleged conversation between the plaintiff and Cauldwell’s superintendent introduces a factor giving rise to a question which may not be resolved on the simple issue of defendant’s negligence and plaintiff’s freedom from contributory negligence, but rather one which must be resolved in the light of the relationship created by the circumstance of the moment — that is, whether Cauldwell’s superintendent had assumed such a degree of control over the plaintiff’s work as to render it liable for his ensuing injury. Dependent as it is on the interpretation to be given the alleged instruction “ Go ahead. It is all right ”, it obviously becomes a question of fact for the jury and may not be disposed of as a matter of law by the court.

At common law, a general contractor is not responsible for the independent negligent act of his subcontractor (French v. Vix, 143 N. Y. 90; Hexamer v. Webb, 101 N. Y. 377), and it is true that the mere retention of the power of general supervision to see that the over-all work proceeds properly and to co-ordinate the actions of several subcontractors on the site will not ordinarily cast him in damages for the negligence of any of the latter (Moore v. Charles T. Wills, Inc., 250 N. Y. 426; Ahbol v. Harden Contr. Co., 265 N. Y. 564). Nor is the general contractor obliged to protect employees of his subcontractors against the negligence of his employer or that of a fellow servant (Iacono v. Frank & Frank Contr. Co., 259 N. Y. 377). These common-law rules, as is often the case, yield under the circumstances of a given case where the situation is governed by statute (e.g., Labor Law, § 240) or when the general contractor, by his act or conduct, assumes control and gives specific instructions which necessarily involve the safety of the subcontractors’ men (see Wawrzonek v. Central Hudson Gas & Elec. Corp., 276 N. Y. 412).

In the courts below it has been held that the platform which here collapsed was not a scaffold within the meaning of section 240. With this view we concur (Welk v. Jackson Architectural Iron Works, 184 N. Y. 519; Wright v. Smith, 152 App. Div. 476; Brady v. Pennsylvania Steel Co., 134 App. Div. 372; note Adelstein v. Roebling Constr. Co., 95 Misc. 125). This form-work was not intended as a place of work but, on the contrary, consisted of the work itself (cf. Burnstein v. Haas, 272 App. Div. 1051, affd. 298 N. Y. 596).

Taking up the issue of negligence, however, we are of the view that the evidence of the conversation had with Paterno relative to proceeding without supports of any kind might well, to a jury, have constituted an assurance of safety (Zurich Gen. Accident & Liability Ins. Co. v. Childs Co., 253 N. Y. 324) and, even more important, an assumption of direct control over the particular work in progress (Hanley v. Central Sav. Bank, 255 App. Div. 542, affd. 280 N. Y. 734). Implicit in the verdict — which followed a fair and comprehensive charge to which no material exception was noted — are findings that the conversation recited by plaintiff’s witness did, in fact, occur; that defendant’s employee was negligent in giving plaintiff a direction to work under an assurance of safety when he knew or should have known that a dangerous condition existed; and that the plaintiff, in reliance thereon, was free from contributory negligence.

By the same token, defendant’s contention that plaintiff was guilty of contributory negligence as a matter of law cannot be sustained. It appears established that when a person in the capacity of a superior assumes control over a workman on a job and directs him to proceed under circumstances recognizable as dangerous, the subordinate workman has little, if any, choice in the matter but to obey it and, if he stays within the limits of the superior’s instructions and is injured, he may not be penalized by a claim' of contributory negligence as a matter of law. While, with the Labor Law aside, this issue remains in the case (cf. Koenig v. Patrick Constr. Corp., 298 N. Y. 313) it survives as a question of fact for the jury (Thomas v. Solvay Process Co., 216 N. Y. 265; Zurich Gen. Accident & Liability Ins. Co. v. Childs Co., supra).

Since the reversal in the Appellate Division of the judgment against Cauldwell was on “ the law and the facts ” we may order a new trial (Civ. Prac. Act, § 602).

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

Loughran, Ch. J., Lewis, Conway, Desmond, Fuld and Froessel, JJ., concur.

Judgments reversed, etc.


author: Froessel, J.

text:
    In the Matter of Concordia Collegiate Institute, Appellant, against Rudolph N. Miller, as Superintendent of Buildings of the Village of Bronxville, Respondent.
    Argued May 22, 1950;
    decided July 11, 1950.

      Raphael Link and Raphael Link, Jr., for appellant.
    I. The ordinance of the Village of Bronxville, as amended February 10, 1941, insofar as it affects appellant, violates the Fourteenth Amendment of the United States Constitution and section 6 of article I of the State Constitution. (Washington ex rel. Seattle Tit. Trust Co. v. Roberge, 278 U. S. 116; Nectow v. City of Cambridge, 277 U. S. 183; Lochner v. New York, 198 U. S. 45; Village of Larchmont v. Town of Mamaroneck, 208 App. Div. 812, 239 N. Y. 551; Yick Wo v. Hopkins, 118 U. S. 356; Catholic Bishop of Chicago v. Kingery, 20 N. E. 2d 583; City of Miami v. State ex rel. Lear, 175 So. 537; Pierce v. Society of Sisters, 268 U. S. 510.) II. The requirement under the ordinance that appellant obtain and file with the board of appeals the consents of 80% of the owners of property in the block surrounding appellant’s premises is unconstitutional. (Washington ex rel. Seattle Tit. Trust Co. v. Roberge, 278 U. S. 116; Yick Wo v. Hopkins, 118 U. S. 356; Eubank v. City of Richmond, 226 U. S. 137.) III. Even if appellant had sought a variance from the board of appeals, the board would have no power to grant a variance on the ground of hardship under the village law, and any variance so granted under the facts and circumstances surrounding appellant’s premises would be a nullity. (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Hickox v. Griffin, 298 N. Y. 365.) IV. The ordinance is unconstitutional because it prescribes no guide, standard or rule by which the board of appeals, an administrative body, is to be governed, except consents of owners. (Matter of Little v. Young, 274 App. Div. 1005, 299 N. Y. 699; Matter of Small v. Moss, 279 N. Y. 288; Panama Refining Co. v. Ryan, 293 U. S. 388.)

      G. Burchard Smith, Arnold Frye and Barent L. Visscher for respondent.
    I. The right to establish zones and confine specific uses to such zones is well established. The provision of the ordinance here questioned is clearly a proper exercise of such power. (Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Baddour v. City of Long Beach, 279 N. Y. 167; Matter of Fox Meadow Estates v. Culley, 233 App. Div. 250, 261 N. Y. 506.) II. Where legislative action is within the scope of the police power, fairly debatable questions as to its reasonableness, wisdom and propriety are not for the determination of the courts, but for that of the legislative body on which rests the duty and responsibility of the decision. (Shepard v. Village of Skaneateles, 300 N. Y. 115; Zahn v. Board of Public Works, 274 U. S. 325; Dowsey v. Village of Kensington, 257 N. Y. 221; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Matter of Otto v. Steinhilber, 282 N. Y. 71.) III. Where the ordinance contains an 80% clause and the necessary consents cannot be obtained, the board of appeals may nevertheless vary if the evidence establishes practical difficulty or unnecessary hardship. (People ex rel. Smith v. Walsh, 211 App. Div. 205, 240 N. Y. 606.) IV. Clauses similar to the 80% clause have been sustained. (People ex rel. Healy v. Leo, 194 App. Div. 973; Bassett on Zoning [1940 ed.], p. 126; Matter of Sanders v. Davidson, 258 App. Div. 1058, 284 N. Y. 780.)
   Froessel, J.

Petitioner-appellant is a nonprofit, domestic educational corporation under the supervision of the State Education Department. It has continuously owned and operated its property in the village of Bronxville, New York, as a school and campus site for about forty years. It purchased the property with the intent of using the whole of the site for a school program and of erecting thereon such buildings as from time to time it might deem necessary. As a duly chartered preparatory school and junior college, with nearly three hundred full-time students, its facilities have become inadequate and it is necessary that it expand. It has thus far invested upwards of a million and a half dollars in this property, and has provided additional funds for the erection of new school buildings on its present campus site in furtherance of the requirements and rules of the State Education Department. When it purchased the site in 1909, the land adjacent thereto consisted of farms and vacant acreage. The surrounding neighborhood is now built up with private residences.

In 1938 the Village of Bronxville enacted a zoning ordinance dividing the village into six residence districts and three business districts. Petitioner’s property was placed in a residence A ” district. An Educational or religious building ” was expressly permitted by the ordinance (art. 3, § 1, subd. [b]) in residence districts. On February 10,1941, an amendment to the zoning ordinance was adopted, repealing said subdivision (b), and in place' thereof adding subdivision (f) to section 7 of article 12 of the ordinance providing for Variances ” which might be permitted by the board of appeals, as follows: “ (f) Permit in any residence district the erection or alteration of a building for educational, religious or eleemosynary purposes and the use of premises for such purposes provided the petitioner files the consents duly acknowledged of 80% of the owners of property fronting on the streets enclosing the block within which lies the property intended for such use.”

As a result of this amendment, assuming it to be valid, no educational building may be erected as a matter of right on petitioner’s property, nor indeed in any of the residence districts which comprise 97% of the village territory. The remaining 3% — a very small area of about nineteen acres bordering on the tracks of the Harlem Division of the New York Central Railroad and situated at the other end of the village — is zoned for business, and no land is available in that area; but, even if available, it would be quite impracticable for petitioner to use any of such property. Thus petitioner is in effect precluded from erecting any school building in the entire village as a matter of right, and, while boarding houses, multifamily houses, hospitals and hotels may be erected in residence districts, schools and churches may not.

On or about July 1, 1948, petitioner filed plans and specifications for the new school library, science building and auditorium on its campus site and applied for a permit. Respondent denied the application upon the ground that the uses of the proposed new buildings were not permitted.

In this article 78 proceeding, petitioner seeks a mandamus order directing respondent to issue a permit to erect the proposed buildings. On the pleadings and accompanying papers, Special Term, upon respondent’s motion to dismiss grounded on legal insufficiency, held that no triable issue of fact was raised, denied the relief sought, and dismissed the proceeding on the merits; the Appellate Division unanimously affirmed.

Petitioner’s proposed use is clearly not a permitted use under the amended ordinance, for, concededly, its property is within a residence A ” district. There is no issue between the parties as to the right of the village to regulate and restrict the location and use of buildings, structures and land for trade, industry, residence or other purposes for the purpose of promoting the health, safety, morals, or the general welfare of the community ” (Village Law, § 175). Petitioner, however, challenges the constitutionality of the zoning amendment adopted February 10, 1941, insofar as it affects petitioner, upon the ground that it is arbitrary, unreasonable and confiscatory and violates the Fourteenth Amendment of the Constitution of the United States and section 6 of article I of our State Constitution. It contends (1) that the provision requiring consents from 80% of the adjoining owners, before the board of appeals is even empowered to consider an application, imposes a restriction on an inoffensive and legitimate use of property, not by a legislative body but by other property owners, and that such delegation of power is repugnant to the due process clause; (2) that, even if such consents were obtained, the amendment would be bad, since the board of appeals is given no standards or guides to exercise its discretion as to what “ educational, religious or eleemosynary purposes ” may be permitted, and (3) that the ordinance as amended discriminates between public and private schools, and virtually bars schools as well as churches from the village.

We are of the opinion that the 1941 amendment of the zoning ordinance is invalid. According to its provisions, it withdrew the unrestricted permission granted under the original ordinance to use property in a residence district for educational purposes, but authorized the board of appeals to grant such permission " provided the petitioner files the consents duly acknowledged of 80% of the owners of property fronting on the streets enclosing the block within which lies the property intended for such use.” Without such consents, the board of appeals had absolutely no power under said subdivision (f). A fraction over 20% of the adjoining property owners could prevent any action by the board and they could thus finally determine, even by inaction, the kind of use that petitioner might make of its property. Against that restriction not only petitioner but the board itself would be powerless. The action of such dissenting or indifferent owners is subject to no guides or standards and to no rule whatsoever.

In Eubank v. City of Richmond (226 U. S. 137) where a statute required the “ committee on streets ” upon request of the owners of two thirds of the abutting property to establish a building line, the court said (pp. 143-144): “ One set of owners determines not only the extent of use but the kind of use which another set of owners may make of their property. In what way is the public safety, convenience or welfare served by conferring such power? The statute and ordinance, while conferring the power on some property holders to virtually control and dispose of the proper rights of others, creates no standard by which the power thus given is to be exercised; in other words, the property holders who desire and have the authority to establish the line may do so solely for their own interest or even capriciously.” (See, also, Carter v. Carter Coal Co., 298 U. S. 238, 311.)

A situation somewhat similar to the instant case was presented in Washington ex rel. Seattle Tit. Trust Co. v. Roberge (278 U. S. 116). In that case, plaintiff trustee owned and maintained a philanthropic home for aged poor, and desired to erect a new building in place of a smaller old building at a cost of about one hundred thousand dollars. The local zoning ordinance did not permit a philanthropic home for aged poor in a “ First Residence District ”, wherein the home was situated. The ordinance was amended in 1925 by permitting such a ho me when the written consent shall have been obtained of the owners of two-thirds of the property within four hundred (400) feet of the proposed building.” (P. 118.) The trustee of the home sought unsuccessfully to procure a permit without having obtained the required consents. The State courts held the amendment valid, but they were reversed by the Supreme Court of the United States, which posed and answered the following question (p. 120): “ Is the delegation of power to owners of adjoining land to make inoperative the permission, given by § 3 (c) as amended, repugnant to the due process clause Í

It held (pp. 121-122): Legislatures may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities. * * * The facts disclosed by the record make it clear that the exclusion of the new home from the first district is not indispensable to the general zoning plan. And there is no legislative determination that the proposed building and use would be inconsistent with public health, safety, morals or general welfare. The enactment itself plainly implies the contrary, * * * The section purports to give the owners of less than one-half the land within 400 feet of the proposed building authority — uncontrolled by any standard or rule prescribed by legislative action — to prevent the trustee from using its land for the proposed home. The superintendent is bound by the decision or inaction of such owners. There is no provision for review under the ordinance; their failure to give consent is final. They are not bound by any official duty, but are free to withhold consent for selfish reasons or arbitrarily and may subject the trustee to their will or caprice. * * * The delegation of power so attempted is repugnant to the due process clause of the Fourteenth Amendment.”

The court distinguished the case of Cusack Co. v. City of Chicago (242 U. S. 526) involving billboards in residential districts, pointing out that billboards were liable to endanger the safety and decency of such districts, and that such billboards or other uses which by reason of their nature were liable to be offensive, were quite different from a home for the poor.

In the case now before us, we are not dealing with billboards or garages or other offensive uses in connection with which consent provisions may be proper, but with an educational use which is clearly in furtherance of the health, safety, morals and general welfare of the community, and is under the direct supervision, care and concern of the State itself. Zoning ordinances must find their justification in the police power exercised in the interest of the public. (Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 387.) The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.” (Nectow v. City of Cambridge, 277 U. S. 183, 188.)

Moreover, even though 80% of the adjoining property owners consented, the hoard of appeals in the instant case was given no standards or guides to exercise its discretion as to what “ educational, religious or eleemosynary purposes ” may be permitted. Respondent in his brief suggests numerous instances of educational institutions which he deems objectionable, yet the board is given no guide; to it is committed an unfettered and unrestricted discretion to approve or reject proposed educational uses. It has been repeatedly held that this may not be done. (Matter of Little v. Young, 299 N. Y. 699; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Matter of Small v. Moss, 279 N. Y. 288, 295; Panama Refining Co. v. Ryan, 293 U. S. 388.)

This disposes of respondent’s claim that petitioner must seek relief under the 1941 amendment. His further contention that petitioner could obtain relief upon a proper showing of hardship (Village law, § 179-b) is likewise without validity. Petitioner’s property is in a residence zone, and it frankly concedes — what is in fact evident — that it cannot demonstrate that its land mil not yield a reasonable return if used only for the purpose allowed in that zone, namely, for residences. Therefore, it asserts, it could not obtain a variance on the ground of hardship under our decisions, such as Matter of Otto v. Steinhilber (282 N. Y. 71) and Matter of Hickox v. Griffin (298 N. Y. 365) and even if the board of appeals should grant its application, the variance would he a nullity, and by no means immune from attack by owners of adjoining property.

In short, petitioner urges that it should not he compelled to seek as a matter of grace and special privilege what at best is an extremely unlikely result, in the face of an invalid statute that stands in the way of relief as a matter of right; the restriction itself constitutes an invasion of its property rights. (Dowsey v. Village of Kensington, 257 N. Y. 221, 231.) Petv tioner’s contention in this respect is sound, and we are accordingly constrained to conclude that the amendment of February 10, 1941, violates the due process clause of the Fourteenth Amendment of the Federal Constitution and section 6 of article I of our State Constitution.

The question still remains, however, whether, with the amendment eliminated, petitioner is entitled to issuance of the permit requested, since the 1941 amendment also repealed subdivision (b) of section 1 of article 3. The precise question was presented in Matter of Little v. Young (supra) where we affirmed the lower courts, which held that since the provision requiring approval was invalid, the accompanying repealing provisions also failed, and there remained no limitation in the ordinance upon an otherwise lawful use. In other words, since the 1941 amendment is invalid, the provisions of the 1938 ordinance are restored insofar as the user here in question is concerned. The local legislature in adding the 1941 amendment evinced no desire to bar permits for educational buildings. It recognized an educational use as harmonious with the public interest — and who indeed could consider it otherwise — but made it subject to the consent and approval hereinbefore outlined, which we find invalid. Hence, no limitation remains.

It is unnecessary to consider the remaining questions presented, such as the village’s right to bar schools absolutely from residential districts and its right to discriminate between private and public schools. We do not reach these questions, and therefore need not decide them.

The orders of the Appellate Division and Special Term should be reversed, and, since no triable issue of fact is presented, the application of petitioner should be granted, with costs in this court and in the Appellate Division.

The orders should be reversed and the application granted, with costs in this court and in the Appellate Division.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Orders reversed, etc.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. Louise Sorge, Now Known as Louise Head, Appellant.
    Argued May 31, 1950;
    decided July 11, 1950.

      J. Harry Tiernan for appellant.
    The judgment of conviction should be reversed because the improper and prejudicial questions asked by the District Attorney on cross-examination affected substantial rights of defendant, which should not be overlooked or disregarded by an appellate court, because of the discretion permitted by section 542 of the Code of Criminal Procedure. (People v. Nuzzo, 294 N. Y. 227; People v. Mleczko, 298 N. Y. 153; People v. Marendi, 213 N. Y. 600; People v. Sobieskoda, 235 N. Y. 411; People v. Gerdvine, 210 N. Y. 184; People v. Harvey, 235 N. Y. 282; People v. Grout, 174 App. Div. 608; People v. Buzzi, 238 N. Y. 390; People v. Infantino, 224 App. Div. 193; People v. Dietz, 216 App. Div. 23; People v. De Martine, 205 App. Div. 80.)

      Herman Methfessel, District Attorney (Alfred J. Cawse, Jr., of counsel), for respondent.
    The questions asked of defendant by the District Attorney constituted proper cross-examination. (People v. Flynn, 275 App. Div. 350; People v. Connolly, 253 N. Y. 330; People v. Nuzzo, 294 N. Y. 227; People v. Giblin, 115 N. Y. 196; People v. Malkin, 250 N. Y. 185; People v. Gitlow, 195 App. Div. 773.)
   Fuld, J.

In this prosecution for the crime of abortion, the evidence given on behalf of the People was more than sufficient to justify the verdict of guilt — for the conflicting testimony of the victim and of the defendant but presented a question of veracity and credibility for the jury. Accordingly, an affirmance is compelled, unless prejudicial error was, committed by the district attorney in conducting his cross-examination of defendant. He interrogated her about abortions which she had allegedly performed upon four other women and, after she had answered his questions in the negative, pressed her further as to whether she had not signed a statement admitting that she had aborted one of the women, as to whether that particular operation had not furnished the predicate for her plea of guilty to the crime of practicing medicine without a license, and as to whether she had not been present while a fifth abortion had been performed.

There can, of course, be no doubt as to the propriety of cross-examining a defendant concerning the commission of other specific criminal or immoral acts. A defendant, like any other witness, may be “ interrogated upon cross-examination in regard to any vicious or criminal act of his life ” that has a bearing on his credibility as a witness. (People v. Webster, 139 N. Y. 73, 84; see, also, People v. Jones, 297 N. Y. 459; People v. Brown, 284 N. Y. 753; People v. Johnston, 228 N. Y. 332, 340; People v. Casey, 72 N. Y. 393, 398-399; see, also, 8 Wigmore on Evidence [3d ed.] § 2277, p. 453.) It does not matter that the offenses or the acts inquired about are similar in nature and character to the crime for which the defendant is standing trial. (See People v. Jones, supra, 297 N. Y. 459: murder prosecution, defendant interrogated as to another murder; People v. Brown, supra, 284 N. Y. 753: murder prosecution, defendant interrogated as to another murder; People v. Alex, 279 N. Y. 766: murder prosecution, defendant interrogated as to another murder; People v. Madison, 3 Cal. 2d 668, 678: murder prosecution, defendant interrogated as to assault with gun; State v. Palko, 121 Conn. 669, 678-679: murder prosecution, defendant interrogated as to subsequent robbery.) And if the questions have basis in fact and are asked by the district attorney in good faith, they are not rendered improper merely because of their number. Entitled to delve into past misdeeds, the prosecutor may not arbitrarily be shackled by the circumstance that the defendant has pursued a specialized field of crime and has committed many offenses. (See, e.g., People v. Brown, supra, 284 N. Y. 753; cf. People v. Goldstein, 295 N. Y. 61, 65; People v. Thau, 219 N. Y. 39, 42.)

Nor is it improper for a district attorney to continue his cross-examination about a specific crime after a defendant has denied committing it. As long as he acts in good faith, in the hope of inducing the witness to abandon his negative answers, the prosecutor may question further. (See People v. Jones, supra, 297 N. Y. 459; People v. Weiss, 129 App. Div. 671, 676; 3 Wigmore on Evidence, op. cit., § 1023, pp. 700-701.) In other wpyds, a negative response will not fob off farther interrogation of the witness himself, for, if it did, the witness would have it within his power to render futile most cross-examination. The rule is clear that while a witness’ testimony regarding collateral matters may not be refuted by the calling of other witnesses or by the production of extrinsic evidence (see, e.g., People v. Perry, 277 N. Y. 460; People v. Malkin, 250 N. Y. 185; People v. Freeman, 203 N. Y. 267), there is no prohibition against examining the witness himself further on the chance that he may change his testimony or his answer.

This principle covers not only the questions put to defendant which were based upon her prior statement (see People v. Jones, supra, 297 N. Y. 459), but also the questions grounded upon her prior conviction — following her guilty plea — of practicing medicine without a license. Since a witness may be examined properly with respect to criminal acts that have escaped prosecution, there is no reason why indictment followed by conviction should proscribe inquiry as to what those acts were. (See People v. Romeo, 273 App. Div. 891; Ochsner v. Commonwealth, 128 Ky. 761, 764; State v. Rusnak, 108 N. J. L. 84, 90; State v. Brames, 154 Wash. 304, 309-311.) A knowledge of those acts casts light upon the degree of turpitude involved and assists the jury in evaluating the witness ’ credibility — all the more so in a case such as the present where conviction of a crime such as practicing medicine without a license gives no inkling whatsoever of the acts upon which the charge and conviction against defendant had been predicated. In point of fact, the matters sought to be elicited by the cross-examination were precisely those matters that could have been established by proof of the official record of defendant’s conviction — a course which the People could unquestionably have pursued under section 2444 of the Penal Law. (See State v. Brames, supra, 154 Wash. 304, 310, involving a statute identical with section 2444.)

While, for the reasons outlined above, we cannot single out any questions and say that they were improper as a matter of law, there still remains the problem of whether the cumulative effect of the sustained cross-examination constituted error, despite the propriety of the individual queries. Basic in this connection is the rule that “ The maimer and extent of the cross-examination lies largely within the discretion of the trial judge.” (People v. Malkin, supra, 250 N. Y. 185, 197; see, also, People v. Slover, 232 N. Y. 264, 268-269; People v. Webster, supra, 139 N. Y. 73, 84; People v. Tice, 131 N. Y. 651, 657-658; People v. Casey, supra, 72 N. Y. 393, 399; La Beau v. People, 34 N. Y. 223, 230.) Accordingly, although there may he room for a difference of opinion as to the scope and extent of cross-examination, the wide latitude and the broad discretion that must be vouchsafed to the trial judge, if he is to administer a trial effectively, precludes this court, in the absence of plain abuse and injustice ” (La Beau v. People, supra, 34 N. Y. 223, 230), from substituting its judgment for his and from making that difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal.

We may not here say that prejudice or “ injustice ” resulted from the district attorney’s interrogation or that permitting the vigorous cross-examination constituted “ plain abuse ”. The evidence against defendant was clear and, since the outcome of the case depended almost entirely upon whether the testimony of the victim or of the defendant was credited by the jury, there was good and ample reason to give both sides a relatively free hand on cross-examination in order to afford the jury full opportunity to weigh and evaluate the credibility of each witness.

The judgment should be affirmed.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ., concur.

Judgment affirmed.


author: Per Curiam.

text:
    Gloria Brown, Appellant, v. Welsbach Corporation, Sued as Welsbach St. Lighting Co. of America, Respondent, et al., Defendants.
    Argued May 23, 1950;
    decided July 11, 1950.

      Ralph Stout for appellant.
    I. Upon the evidence the question of defendant’s negligence (which resulted in the nuisance complained of) was one of fact which was properly submitted to the jury. (McFarlane v. City of Niagara Falls, 247 N. Y. 340; Junkerman v. Tilyou Realty Co., 213 N. Y. 404; Irvine v. Wood, 51 N. Y. 224; Boylhart v. Di Marco & Reimann, Inc., 270 N. Y. 217; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Trimble v. City of New York, 275 App. Div. 169; Johnson v. Friel, 50 N. Y. 679; Brown v. German Rock Asphalt Co. 236 N. Y. 271; Hayman v. City of New York, 163 App. Div. 195; Carlock v. Westchester Lighting Co., 268 N. Y. 345; Rosebrock v. General Elec. Co., 236 N. Y. 227.) II. Defendant’s excavation in the sidewalk, which became and remained uncovered through defendant’s negligence, constituted a public nuisance; and defendant, as the creator thereof, is liable for personal injuries sustained as a direct result thereof. (Hine v. Aird-Don Co., 232 App. Div. 359; Sullivan v. McManus, 19 App. Div. 167; McNulty v. Ludwig & Co., 153 App. Div. 206; Cumberland Tel. & Tel. Co. v. Lawrence, 271 F. 89; Wilks v. New York Tel. Co., 208 App. Div. 542; Wenzel v. Duncan, 175 Misc. 554, 261 App. Div. 1003.)

      Walter L. Glenney for respondent.
    I. The city, being in control, was the only one liable to appellant. (Cullings v. Goetz, 256 N. Y. 287; Jackson v. Martin, 297 N. Y. 487; Mayor of City of Albany v. Cunliff, 2 N. Y. 165; Muscelli v. Starr Contr. Co., 296 N. Y. 330; Cunningham v. Gillespie Co., 241 Mass. 280; Pharm v. Lituchy, 283 N. Y. 130; Kilmer v. White, 254 N. Y. 64; Zolezzi v. Bruce-Brown, 243 N. Y. 490.) II. Respondent, whose contract, at the time of the accident, had been terminated by the city, owed no duty to appellant and is not liable. (Goldberg v. Lumber Mut. Cas. Ins. Co., 297 N. Y. 148; Brown v. German Rock Asphalt Co., 236 N. Y. 271; Weis v. Long Island R. R. Co., 262 N. Y. 352; Bergen v. Fortis Contr. Co., 270 App. Div. 1036, 297 N. Y. 856; Coleman v. Guidone & Son, Inc., 192 App. Div. 120; City of Rochester v. Campbell, 123 N. Y. 405.) III. Respondent is not liable as the creator of a public nuisance. (Wilks v. New York Tel. Co., 243 N. Y. 351; Swords v. Edgar, 59 N. Y. 28; Covert v. Cranford, 141 N. Y. 521; Zolezzi v. Bruce-

      Brown, 243 N. Y. 490; Dirrane v. City of New York, 240 App. Div. 368; Rufo v. South Brooklyn Sav. Bank, 268 App. Div. 1057, 295 N. Y. 981; Board of Educ., Union Free School Dist. No. 6 of Town of North Hempstead v. Town of North Hempstead, 259 App. Div. 733.)
   Per Curiam.

In an action for personal injuries, sustained when she stepped into a four-foot hole in the sidewalk, plaintiff recovered a judgment against respondent. The Appellate Division, while affirming the findings of fact implicit in the jury’s verdict, reversed the judgment and dismissed the complaint on the law on two grounds: (1) it ruled that respondent could not be held liable in the light of the acceptance by the City of New York of the work after its completion, citing Coleman v. Guidone & Son, Inc. (192 App. Div. 120). In that case, however, it was pointed out that if a defective board had been installed the applicable rule might be different. Such the jury was entitled to find was the situation here with respect to the defective concrete. (2) The lower court also held that, since the contract between respondent and the city had expired before the accident, respondent had no supervisory power nor control and was no longer liable under the applicable general rule at common law, citing cases relating to the maintenance or the continuance of a nuisance or defective condition on private property rather than the creation thereof in a public highway. The only case cited which relates to the creation of a dangerous condition is Mayor of City of Albany v. Cunliff (2 N. Y. 165) the decision in which, however, was based upon the invalidity of a statute.

We are of the opinion that the lower court failed to distinguish between an affirmative act of negligence in the very creation of a nuisance or a dangerous condition in a public highway and a mere failure properly to maintain. The instant case is an exception to the general rule (Boylhart v. Di Marco & Reimann, Inc., 270 N. Y. 217, 221; Benjamin v. Trebatch, 271 N. Y. 513; Junkermann v. Tilyou Realty Co., 213 N. Y. 404, 409; Kilmer v. White, 254 N. Y. 64, 69; Irvine v. Wood, 51 N. Y. 224, 228; Charlock v. Freel, 125 N. Y. 357; Wilks v. New York Tel. Co., 243 N. Y. 351; Wilks v. Federal Tel. & Tel. Co., 248 N. Y. 618 [same case]; Wenzel v. Duncan, 261 App. Div. 1003).

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

Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgment reversed, etc.


author: Lewis, J.

text:
    Stanley Majka, Appellant, v. George A. Haskell et al., Defendants, and City of Buffalo, Respondent.
    Argued May 19, 1950;
    decided July 11, 1950.

      Edward B. Horning for appellant.
    I. The trial court correctly left the negligence issue to the jury. (Maxmilian v. Mayor of City of N. Y., 62 N. Y. 160; Wilcox v. City of Rochester, 190 N. Y. 137; Missano v. Mayor of City of N. Y., 160 N. Y. 123; Whittaker v. Village of Franklinville, 265 N. Y. 11; Annino v. City of Utica, 276 N. Y. 192; Carr v. City of New York, 281 N. Y. 469; Campbell v. City of New York, 285 N. Y. 529; Howarth v. City of New York, 294 N. Y. 721; Bernardine v. City of New York, 294 N. Y. 361; Loughran v. City of New York, 298 N. Y. 320.) II. The issue of causation was for the jury. (O’Neill v. City of Port Jervis, 253 N. Y. 423; Storey v. Mayor of City of N. Y., 29 App. Div. 316; Diener v. Carmen Cab Corp., 264 N. Y. 407; Peck v. Independent Automobile Forwarding Corp., 280 N. Y. 728; Mullen v. Fayette, 300 N. Y. 501.) III. The issues of negligence on the part of plaintiff and defendant Haskell were for the jury. (Tedla v. Ellman, 280 N. Y. 124.)

      Fred C. Maloney, Corporation Counsel (Bart J. Shanahan of counsel), for respondent.
    I. No actionable negligence was proved against the City of Buffalo. (Swift v. City of New York, 270 N. Y. 162; Johnson v. City of New York, 208 N. Y. 77; Murrain v. Wilson Line, Inc., 270 App. Div. 372, 296 N. Y. 845; Steitz v. City of Beacon, 295 N. Y. 51; Green v. City of Mechanicville, 269 N. Y. 117; Ferrier v. City of White Plains, 262 App. Div. 94.) II. The proximate cause of plaintiff’s injuries was not due to any act or omission on the part of defendant municipality. (Tedla v. Ellman, 280 N. Y. 124; Gaines v. City of New York, 215 N. Y. 533; Albertson v. Ansbacher, 102 Misc. 527; Green v. City of Mechanicville, 269 N. Y. 117; Rider v. Syracuse R. T. Ry. Co., 171 N. Y. 139; Laidlaw v. Sage, 158 N. Y. 73; Leeds v. New York Tel. Co., 178 N. Y. 118.)
   Lewis, J.

South Park Avenue in the city of Buffalo is a main east-west thoroughfare which, by means of a viaduct, spans the parallel rights of way of the New York Central and the Erie railroads. The total length of that viaduct including ramps leading up from either end is between 2,000 and 2,500 feet. In the center of the ramps and viaduct is a paved roadway 42 feet wide designed for vehicular traffic. To accommodate pedestrian traffic there is on either side a paved sidewalk raised 6 inches above the surface of the center roadway and separated from it by curbing. At the point where the viaduct is carried over the New York Central right of way by steel bridgework 300 feet in length, the pedestrian lane on either side is separated from the center roadway not only by curbing but also by steel bridgework which serves to protect pedestrians from vehicular traffic moving along the center roadway.

In the month of May, 1945, there came a time when inspection of the South Park Avenue viaduct by representatives of the defendant city revealed that, at a point where the New York Central tracks pass under the viaduct, the under surface of the sidewalk flooring had become so disintegrated — due to fumes and gases emitted by railroad engines — as to be unsafe. The unsafe condition thus discovered caused the defendant city on May 21, 1945, to close and barricade that segment of the viaduct sidewalks — 300 feet in length — which spanned the New York Central tracks. Although barricades then placed at each end of the closed segment carried a sign upon which was printed “Bridge Closed ”, there was no barricade nor was there warning of any kind at either the westerly or easterly end of the viaduct to give notice to pedestrians or to vehicular traffic that at a point — far removed from either end — a segment of the sidewalk was closed.

On the night of June 2, 1945 — twelve days after the pedestrian lanes were closed — the plaintiff, a man fifty-two years of age, was returning to his home walking westerly along the sidewalk on the north side of the viaduct. When he had walked a distance of 1,500 feet along that pedestrian lane he came to the barricade erected 500 feet east of the west end of the structure. There is evidence that, although the plaintiff had recently crossed the bridge in a bus, he did not know the sidewalk was closed at any point until he reached the barricade which blocked the lane in which he was walking. There is also evidence that at that time and place rain was falling and visibility was dimmed by fog or by smoke from a locomotive passing under the bridge. Being unable to proceed further homeward on the sidewalk by which he had reached that point on the viaduct, he turned from the sidewalk into the center roadway where vehicular traffic was passing and where he continued westerly along the north side of that roadway. While pursuing that course he was struck by a westbound automobile — owned by the defendant Oberg and then driven by the defendant Haskell — and sustained the personal injuries which gave rise to this action.

At Trial Term a jury’s verdict awarded damages to the plaintiff against the city, and denied a cause of action by the plaintiff against the individual defendants. At the Appellate Division the judgment entered at Trial Term was reversed on the law and facts and the complaint was dismissed.

Even before the State’s waiver of sovereign immunity by section 8 of the Court of Claims Act (L. 1939, ch. 860) had rendered the defendant city liable, as are individuals and privaté corporations, for wrongs proven to have been done by its officers or employees, “ * * * the city owed to the public the corporate duty of maintaining the street in a condition reasonably safe for the ordinary uses of travel ” (Green v. City of Mechanicville, 269 N. Y. 117, 122-123). Under the Charter of the City of Buffalo (Local Laws, 1927, No. 4 [published in Local Laws, 1932, p. 21], art. 10, § 178) the city is charged with the “ * * * construction, maintenance, repair and alteration of bridges, viaducts and subways * * Accordingly, in the event the city fails in such duty it is * * * liable for damages to persons, without fault on their part, receiving injuries upon its streets ”. (Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 465; Missano v. Mayor of City of N. Y., 160 N. Y. 123, 129.) In the case last cited above this court considered the liability of the City of New York for the death of a child alleged to have been caused by negligence of city employees in the street cleaning department. In ruling that the city was liable for the fault of its street maintenance employees the court took occasion to say (p. 129) — It is clear upon principle and authority that the city of New York, in the ordinary and usual care of its streets, both as to repairs and cleanliness, is acting in the discharge of a special power granted to it by the legislature, in the exercise of which it is a legal individual, as distinguished from its governmental functions when it acts as a sovereign.” (See, also, 4 Dillon on Municipal Corporations [5th ed.], § 1708; 7 McQuillin on Municipal Corporations [2d ed.], § 2902, p. 15.)

True it is, as the city now asserts, that when its agents discovered that the sidewalk flooring at a point on the South Park Avenue viaduct had become unsafe, the city had not only the right but the duty to close that unsafe portion to pedestrian traffic as a means temporarily to abate the risk there existing. However, circumstances peculiar to this record pose the question whether the manner in which the city chose to abate one risk did not create another. We consider the question thus posed in the light of the rule which required the city to accomplish the closing of the sidewalk lanes in such a manner as to avoid risk to pedestrians reasonably to be foreseen. (McCrink v. City of New York, 296 N. Y. 99, 106; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 344.)

At the time of the accident here involved, although the sidewalk on each side of the viaduct had been closed for twelve days — during all of which time the center roadway remained open for traffic — no warning of the closing was given to the plaintiff until he had walked a distance of 1,500 feet along the sidewalk provided for his use and then came to the barricade on which was posted the printed sign “ Bridge Closed ”. No guarded passageway was provided along the north side of the center roadway through which pedestrians could circumvent the closed segment; nor was egress from the cul-de-sac into which the plaintiff had been led afforded by the sidewalk along the opposite or south side of the viaduct to which he might have crossed when traffic on the center roadway permitted. That sidewalk on the south side, as we have seen, had also been closed and barricaded for the same reason.

It thus came about that two courses were available to the plaintiff: (1) to retrace his steps back to the first exit from the north sidewalk lane and there map anew his homeward course by such a route as would enable him to avoid the viaduct, or (2) to walk around the end of the barricade and, by proceeding along the north edge of the center roadway, thus by-pass the closed section of the pedestrian lane. The plaintiff chose the shorter, quicker course along the center roadway — indeed the only way at that point which the city had left open on the viaduct for traffic by vehicles or pedestrians.

In view of the conceded fact that both sidewalks for pedestrians had been closed at a point far removed from either end of the viaduct, without warning of such closing until the barricades were reached, and it appearing that the city had left open at that point the center roadway as the only lane on the viaduct for both vehicular and pedestrian traffic, we think it became a question of fact for the jury whether there was thus created by the city a risk — reasonably to be foreseen — that pedestrians would choose, as did the plaintiff, to turn at the barricade into the open way afforded by the center roadway and thus find their way around the closed segment of the sidewalk, rather than to retrace their steps and of necessity reach their destination by a circuitous course which would avoid the viaduct entirely.

At Trial Term that question, and the added question whether, in the circumstances disclosed by the evidence, plaintiff’s con- , duct amounted to contributory negligence, were submitted to the jury by the Trial Justice after a charge which we regard as clear and adequate. In our view the verdict returned by the jury did not result from error of law.

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

Loughran, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgment accordingly.


text:
    In the Matter of Angelo Sagos, Respondent, against John F. O’Connell et al., Constituting the New York State Liquor Authority, Appellants.
    Argued May 29, 1950;
    decided July 11, 1950.

      Alvin McKinley Sylvester and Jack Reinstein for appellants.
    Since there were substantial competent facts to establish a violation of the law, the State Liquor Authority had exclusive jurisdiction to determine the extent of the punishment to be imposed. Accordingly, the Appellate Division erred in annulling the determination because it believed that the punishment was unduly severe. Such usurpation of a purely administrative prerogative constitutes a dangerous departure from established principles and a serious threat to proper enforcement of the law. (People ex rel. Masterson v. French, 110 N. Y. 494; People ex rel. Morrissey v. Waldo, 212 N. Y. 174; Matter of Restaurants Longchamps v. O’Connell, 271 App. Div. 641, 296 N. Y. 239; Matter of Corporate Employment Service v. Moss, 263 App. Div. 14, 287 N. Y. 794; People ex rel. O’Callahan v. French, 123 N. Y. 636; People ex rel. Schwab v. Grant, 126 N. Y. 473; Swayne & Hoyt,

      Ltd., v. United States, 300 U. S. 297; Matter of Yates v. Mulrooney, 245 App. Div. 146; Federal Communications Comm. v. WOKO, Inc., 329 U. S. 223.)

      Clarence Siegel and George S. Goldberg for respondent.
    Neither the licensee nor his agent attached the keg of beer. They had no knowledge or reason to believe that there was an improper connection. Licensee neither benefited nor stood to benefit in any way from an erroneously connected tap. No one was in any way damaged or injured. There was an inadvertent, isolated, improper tapping by one not an agent. Assuming that a technical violation occurred, the determination of the State Liquor Authority in suspending petitioner’s license for twenty days and requiring that its order of suspension be publicly displayed was arbitrary and unconscionable and, therefore, should be annulled. (People v. Miles, 173 App. Div. 179; People v. Collins, 271 App. Div. 511; People v. Byrne, 112 Misc. 377; People v. Shaffer, 173 App. Div. 177; Matter of Monk v. Finkelstein, 194 Misc. 241; Matter of Marburg v. Cole, 286 N. Y. 202; Matter of Strauss v. Hannig, 170 Misc. 371; Dobson v. Commissioner of Internal Revenue, 320 U. S. 489; Interstate Commerce Comm. v. Louisville & Nashville R. R. Co., 227 U. S. 88; Matter of Ogden v. Du Mond, 273 App. Div. 582; Matter of Schwab v. McElligott, 282 N. Y. 182.)
   Per Curiam.

We read the order of the Appellate Division herein — which refers to that court’s opinion (Civ. Prac. Act, § 607) and annuls the determination of the State Liquor Authority — as upholding the finding by the Authority that the respondent violated subdivision 4-a of section 106 of the Alcoholic Beverage Control Law and that the annulment of the Authority’s determination directed by such order rests upon the sole ground that the punishment imposed by the Authority was excessive. Upon that single ground the Appellate Division has annulled that determination on the law and has remitted the proceeding to the Authority “for further action and reconsideration of the extent of the punishment imposed herein ”. (Emphasis supplied.)

The suspension of a liquor license is ' one of that type of action by the Authority which is subject to review by the Supreme Court but such review must be in the manner provided by article 78 of the Civil Practice Act. (Alcoholic Beverage Control Law, § 121, subd. 4). Under section 1296 of article 78 we find no provision for the judicial review of the measure of punishment imposed as an incident to disciplinary action ordered by an administrative board such as the Authority where, as in the present case, the Appellate Division has upheld a finding by the Authority of a statutory violation which is made the sole basis for such punishment. (See People ex rel. Morrissey v. Waldo, 212 N. Y. 174, 177-179.)

Accordingly the order should be reversed and the determination of the State Liquor Authority confirmed, with costs in this court and in the Appellate Division.

Appeal taken as of right dismissed on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur; Froessel, J., concurs in result.

Ordered accordingly.