author: CoNway, J. Lewis, J.

text:
    Robert A. Kingsland, an Infant, by Frederick G. Kingsland, His Guardian ad Litem, et al., Respondents, v. Erie County Agricultural Society, Appellant and Respondent, and national Fireworks Company, Appellant.
    Argued October 18, 1948;
    decided January 13, 1949.

      Frank Gibbons and Willard M. Pottle for International Fireworks Company, defendant-appellant.
    I. Plaintiff established no cause of action against the defendant fireworks company as a corporation because that corporation was not connected in any way with the transaction involved. (Schmedes v. Deffaa, 153 App. Div 819, 21.4 N. T. 675; Kartell v. Simonson Son Go., 218 N. Y. 345; Standard Oil Go. v. U. S. 215; Wyllie v. Palmer, 137 N. Y. 248; Higgins v. Western Union Tel Go., 156 N. Y. 75; McNamara v. Leipzig, 227 N. Y. 291; Wright Steam Engine Works v. Lawrence Cement Go., 167 N. Y. 440; Anderson v. Boyer, 156 N. Y. 93.) II. Plaintiff failed to establish any cause of action against either of the defendants on the ground of negligence. (Tucker v. New York Central & Hudson Riv. R. R. Go.) 124 N. Y. 308; Gloshinsky v. Bergen Milk Transp. Go., 279 N. Y. 54; Carbone v. Mackchil Realty Gorp., 296 N. Y. 154; Vaughan v. Transit Development Go., 222 N. Y. 79; Hoffman v. King, 160 N. Y. Perry v. Rochester Lime Go., 219 N. Y. 60; Beickert v. G. M. Laboratories, Inc., 242 N. Y. 168; Mairs v. Baltimore & Ohio R. R. Go., 175 N. Y. 409; De Salvo v. Stanley-Mark-Strand Gorp., 281 N. Y. 333; Loftus v. Union Ferry Go., 84 N. Y. 755.) III. If any duty to safeguard these trespassers existed either in law or in fact, and if there was any failure in either respect, it was the fault of the fair company. Their duty could not be delegated. (Birch-Field v. Davenport Shore Club, Inc., 262 N. Y. 499; Barrett v. Lake Ontario Beach Improvement Go., 174 N. Y. 310; Platt v. Erie Go. Agrie. Soc., 164 App. Div. 99; Arnold v. State of New York, 163 App. Div. 253; Thompson-Starrett Go. v. Otis Elevator Go., 271 N. Y. 36; Employers’ Liability Assur. Gorp., v. New York Linen Supply & Laundry Go., 239 N. Y. 560; Dudar v. Milef Realty Gorp., 258 N. Y. 415; Walters v. Rao Elec. Equipment Go., 289 N. Y. 57; Schwarts v. Merola Bros. Gonstr. Gorp., 290 N. Y. 145.) IV. The contract nowhere contained any promise on the part of the fireworks company in express and unequivocal language, to protect the fair company against its own negligence. (Perry v. Payne, 217 Pa. 252; Maynard v. Syracuse, Binghamton N, Y. R. R. Co., 71 N. Y. 180.)

      Edmund 8. Brown and Theodore A. Viehe for Erie County Agricultural Society, defendant, appellant and respondent.
    I. .Plaintiffs failed to establish, that defendant agricultural society was legally responsible for the bomb which injured the infant plaintiff. (Beyo v. Kingston Cons. B. Go., 94 App. Div: 578; Matter of Mace v. Morrison & Fleming, 267 App. Div. 29, 293 N. T. 844; Garlinger v. Linwood Gonstr. Go., 206 App. Div. 107; Fragiacomo v. 404r-6 East 88th St. Realty Corp., 269 App. Div. 635; English v. Merroads Realty Corp., 288 N. Y. 93; Wein-feld v. Kaplan, 282 N. Y. 348; Hyman v. Barrett, 224 N. Y. 436.) II. Plaintiffs failed to establish that defendant agricultural society was negligent. (Fragiacomo v. 404-6 East 88th St. Realty Corp., 269 App. Div. 635; Kukkonen v. Cameron, 263 App. Div. 760; Hayes v. Borup, 244 App. Div. 807; Morse v. Buffalo Tank Corp., 280 N. Y. 110.) III. The alleged negligence of defendant agricultural society was not the proximate cause of the injuries to the infant plaintiff. (Perry v. Rochester Lime Go., 219 N. Y. 60; Babcock v. Fitzpatrick, 221 App. Div. 638, 248 N. Y. 608; Steeves v. City of Rochester, 293 N. Y. 727; Hall v. New York Tel. Go., 214 N. Y. 49; Beickert v. G. M. Laboratories, Inc., 242 N. Y. 168; Flaherty v. Metro Stations, Inc., 202 App. Div. 583, 235 N. Y. 605; Di Biase v. Ewart & Lake, Inc., 228 App. Div. 407, 255 N. Y. 620.) IV. Defendant agricultural society owed no duty of care to plaintiffs. (Palsgraf v. Long Island R. R. Go., 248 N. Y. 339; Larmore v. Grown Point Iron Go., 101 N. Y. 391.) V. The order and judgment directing verdicts in favor of the agricultural society against the fireworks company should be affirmed. (Dudar v. Milef Realty Corp., 258 N. Y. 415; Long Island R. R. Go. v. American Bridge Go., 175 App. Div. 170, 225 N. Y. 692; Scott v. Curtis, 195 N. Y. 424; Schwarts v. Meróla Bros. Gonstr. Corp., 263 App. Div. 631, 290 N. Y. 145; Phoenix Bridge Go. v. Greem, 102 App. Div. 354, 185 N. Y. 580; Dunn v. Uvalde Asphalt Paving Go., 175 N. Y. 214; Oceanic Steam Navigation Go. v. Gompania Transatlántica Española, 134 N. Y. 461;. Carroll v. City of Dunkirk, 234 N. Y. 579.) VI. The fireworks company is not entitled to be indemnified by the agricultural society.

      Edward B. Horning for plaintiffs, respondents.
    I. The negligence, causation and foreseeability issues were properly left to the jury and the findings thereon are amply supported. (Perry v. Rochester Lime Go., 219 N. Y. 60; Travell v. Banner-man, 174 N. Y. 47; Babcock v. Fitzpatrick, 221 App. Div. 638, 248 N. Y. 608; Crowley v. Rochester Fireworks Go., 183 N. Y. 353; ■Conklin v. Thompson, 29 Barb. 218; Wyllie v. Palmer, 137 N. Y. 248; Birch-Field v. Davenport Shore Club, Inc., 262 N. Y. 499; Deyo v. Kingston Cons. R. R. Go., 94 App. Div. 578; Parnell v. Holland Furnace Go., 234 App. Div. 567, 260 N. Y. 604; Clifton v. Patroon Operating Gorp., 271 App. Div. 112; O’Neill v. City of Port Jervis, 253 N. Y. 423.) II. The court correctly disposed of the cross claims. (Sroka v. Halliday, 39 R. I. 119; Bunnell v. Blue Grass Fair Assn., 206 Ky. 462; Spenzierato v. Our Lady Monty Virgine Soc., 112 N. J. L. 93; Platt v. Erie Co. Agrie. Soc., 164 App. Div. 99; Roper v. Ulster Go. Agrie. Soc., 136 App. Div. 97; Fox v. Buffalo Park, 21 App. Div. 321; Schwartz v. Merola Bros. Constr. Gorp., 290 N. Y. 145.)
   CoNway, J.

Defendants appeal from a judgment of the Appellate Division, Department, which affirmed a judgment of the Supreme Court, in favor of the infant plaintiff and a judgment in favor of his father, after a jury trial.

Originally, two actions — subsequently consolidated — were instituted against both defendants, one in favor of the infant by his guardian ad litem to recover for personal injuries including the loss of his left hand and injuries to his face, head and abdomen, and another by the father for damages sustained by him by reason of the injuries to the infant plaintiff. The injuries resulted from the explosion of a bomb which had been taken by the infant plaintiff’s older brother from the fairgrounds of the defendant Erie County Agricultural Society (hereinafter referred to as the “ Agricultural Society ”) where the defendant International Fireworks Company (hereinafter called the “ Fireworks Co.”) had furnished a display of fireworks. Although the piece of fireworks was called a bomb by the witnesses it was not of the size or shape we think of as a bomb or which we see at night on highways to warn of road repairs. It was green in color, was small enough to be held in one hand and was open at the top.

Each defendant asserted a cross claim over against the other. The jury returned a verdict in favor of the plaintiffs against both defendants, and it also returned a verdict of “ no canse of action ” on the cross claim of each defendant. Subsequent to the trial, the court by an order (1) denied motions by both defendants to set aside the verdict in favor .of plaintiffs (2) denied the Fireworks Co.’s motion to set aside the verdict of no cause of action ” on its cross claim against the Agricultural Society and for a directed verdict thereon and (3) granted the motion of the Agricultural Society to set aside the verdict of ‘ ‘ no cause of action ’ ’ on its cross claim against the defendant, Fireworks Co. and granted judgment over to the Agricultural Society against the Fireworks Co. for the amount of plaintiffs’ verdict or so much thereof as the defendant, Erie County Agricultural Society, is compelled to pay by reason ” thereof. In addition to the appeal from the judgment by both defendants, the Fireworks Co. appeals from the affirmance of the above order, and the Agricultural Society appeals from the affirmance of that portion which denied its motion to set aside the verdict in favor of plaintiffs.

On this appeal defendants contend that their motions for non-suit and dismissal of the complaint should have been granted because (1) plaintiffs established no negligence on the part of either defendant, and (2) if any negligence was shown, it was not the proximate cause of the infant plaintiff’s injuries. In view of the jury verdict in favor of plaintiffs and the affirmance by the Appellate Division, we must affirm unless we hold as matter of law that the accident was not foreseeable or that a new and independent effective cause intervened between the defendants’ negligence and the accident. That we cannot do on this record.

We all agree that there is sufficient evidence from which the jury could find that to leave unguarded and accessible to children, who concededly were in and about the fairgrounds, an explosive such as is here involved, constitutes negligence. Some of the evidence in the record which supports that conclusion is as follows:

The Agricultural Society conducted the annual Erie County Fair upon premises owned by it at Hamburg, N. T. The purpose of the fair was to stimulate interest in agriculture, 4 H groups and other farming activities. In order to attract a crowd, in addition to the educational and agricultural exhibits, there were a number of free acts ” or attractions, and a great number ”, “ a couple of hundred ”, concessions.

The fair was conducted for one week and admission of sixty cents was charged for adults and twenty-five cents for children from ten to fourteen years of age. Children under ten years of age were admitted free and on Mondays all school children were admitted free if they participated in the “ school activities

In 1945, the fair opened on Monday, August 20th and closed on Saturday August 25th. The record of paid admissions for the week was 93,748 which included 17,169 parking tickets for automobiles. The Agricultural Society treasurer estimated that about 15 or 20% of the crowd were children, except on Monday when the percentage was higher. At the 1945 fair there were six or eight ‘ ‘ free acts ’ ’, including wrestling matches, an acrobatic act called the “ Peaches High Act ” and a nightly display of fireworks.

To provide for the fireworks display, the Agricultural Society entered into a contract with the Fireworks Co. in which the FireWorks Co. agreed to “ furnish ” “ exhibition of fireworks ” in accordance with a program attached to the contract for $250 per night. The contract in which the Fireworks Co. was the party of the first part and the Agricultural Society was the party of the second part provided in part:

The party of the first part agrees to furnish an experienced pyi’otechnist, party of the second part to furnish laborer to dig holes.
“ The party of the First part agrees to furnish all lumber required.
‘ ‘ The party of the First part agrees to pay all freight, express and cartage charges.
‘ ‘ The party of the First part agrees to pay all traveling and other expenses of pyrotechnist necessary for said exhibition.
“ The party, of the second part agrees to furnish a secure and dry shelter for storage of fireworks materials in the event of rain or stormy weather. ⅝ * *
“ The party of the second part agrees to furnish and set up rope lines, if required for the protection of the public.
‘ ‘ The party of the second part agrees to furnish ample police protection to party of the first part for the protection of its property, and the firing of the exhibition without interferences from the public.
The party of the second part agrees to procure any and all permits or licenses which may he required by the municipal authorities.
“ The payty of the first party agrees to indemnify and save harmless the party of the second part from any and all liability to any person or persons for or by any reason of any condition whether defective, or otherwise, or [sic-of] any fireworks, apparatus, equipment or fixtures furnished by said party of the first part in connection with the exhibition hereinbefore agreed to be given, and will indemnify and save harmless the party of the second part from any and all liability to any person or persons, for or by any reason of any act or omission of said party of the first part or any of its agents, servants or employees.”

In a letter dated July 30, 1945, the Agricultural Society requestéd of the Fireworks Co. information required for the society’s application for the permit. (See Penal Law, § 1894-a, subd. 3 par. d.) The Fireworks Co. furnished the information requested. The application was made by the Agricultural Society, and the permit was issued by the town clerk and permit authority of Hamburg, New York. The “Name of Per-mitee ”, however, is stated therein as “ International Fireworks Co., Jersey City N J ”, and not as Agricultural Society.

In performance of the contract, Fireworks Co. shipped twelve boxes of fireworks to the fairgrounds. Two boxes were to be used each night. The boxes contained two types of fireworks: (1) “ aerial bombs ” which were fired from iron pipes or mortars ” set in the ground; these bombs contained a “ lifting charge ” so that when lighted they were propelled into the air where they burst with different effects, and (2) ground bombs ” which were connected on the ground in a series of twenty-five and the purpose, of which was only “ to go off and make a loud noise ”. On delivery at the fair grounds the boxes were stored in a small brick building about 12 by 12 feet with a tile roof, known as the “ Meter House ”, which contained a water meter and which was used for no other purpose.

The Fireworks Co. sent one Murray, its vice-president and general manager, a man seventy-five years of age with about fifty-seven years’ experience in the fireworks business, to supervise the exhibition. It also sent one Davito, an experienced fireworks operator and employee of the company "for twenty-three years.

Under Murray’s supervision, an employee of the Agricultural Society dug the holes for the mortars which had been shipped to the fairgrounds by the Fireworks Co. and Davito installed them. Thus, ninety or ninety-five mortars were placed in a line about 100 feet long, and about 25 feet away from the line of mortars and parallel to it a shallow ditch was dug to hold the “ ground bombs ”.

This firing area was on the grass inside the oval or “ infield ” formed by the race track at the fairgrounds. The oval ran generally from northwest to southeast and was bordered by the grandstand, horse stables, pari-mutuel booth, bandstand, automobile building, concrete dance platform, agriculture exhibit and education exhibit. Inside the oval on the northerly side, directly opposite the grandstand, is a smaller oval formed by the horse show ring. The firing area was located between the horse show ring and the inside rail on the southerly side of the race track. It was about 100 feet away from the rail and ran parallel to it for about 100 feet.

At the fireworks exhibition on Monday night, August 20th, the first night of the fair, three bombs failed tó explode, two were ground bombs which had become wet when the ground was sprinkled with water and the third was an aerial bomb on which the fuse had broken. At that time Davito picked up the three bombs, wrapped them in a piece of paper and put them in an empty box. He took them back to the meter house where they remained until the following Saturday afternoon. At about five o’clock on Saturday afternoon, August 25, 1945, the superintendent of the Agricultural Society, took the last two unopened boxes of fireworks to the firing area in a fire truck. Davito testified that at the same time he took the box containing the three defective bombs to the firing area, carrying it halfway and then putting it on the truck. His testimony in substance was that the three bombs, wrapped in newspaper, were in the bottom of an empty wooden box. He piled ten extra mortars on top of them in that box and then set two empty boxes on top of the one containing the mortars and the three bombs. Murray said that he and Davito planned to ship the three bombs back to the Fireworks Co.’s factory because it was not considered safe to bury them on a Fair Grounds.”

After the show (which was “ late on Saturday night) they were “ a little bit in a hurry ” because they wished to make the 11:45 p.m. train to New York. The three bombs were taken out to the firing point to be packed up with the mortars so that Davito and Murray could leave as soon as the display was over. The three bombs were to be nailed up in a box with some mortars and left out on the fairgrounds all night and then in the morning were to be picked up by a truck and shipped back to the Fireworks Co. Thus they remained there in the firing area until they were missed nearly five hours later.

Davito claimed that while he was checking fuses on the line of fireworks ten or fifteen minutes before they were to be displayed at 10:00 p.m. he noticed that the three boxes were “ tumbled over ”, the mortars were out on the ground, and the three bombs were gone.

At the fair on that Saturday evening, there was a band concert at 7:30 p.m. and then there was a series of free acts ”. The first was a stage show performed on a stage in the grass oval of the race track next to the northwest inside rail of the track opposite the bandstand which was on the opposite side of the track in front of the grandstand. Both those platforms were only about 300 to 400 feet from the firing area. The “ Peaches High Act ” followed the stage show and then approximately four wrestling inatches were presented. The Peaches High Act ” was also in the infield'about 300 feet northwest of the firing area. The wrestling matches were held at a point on the race track in front of the grandstand about 350 feet from the firing area.

The race track lights were on until the fireworks display was set off and the infield was so well lighted that several witnesses said that a person could read a newspaper there. The inside rail of the race track was about 3½ feet high and there were five gates opening into the infield. There was evidence of a considerable number of people being in and about the infield on Saturday night. The night chief of the fair police testified that “ we had our men around the free acts' and they would keep the crowds back a little farther the actors’ tents in the infield were roped off “to keep the people from going through”; there were policemen in the infield while the “ Peaches High Act ” was going on to keep people “ away from the guy wires ”, and police were also stationed around the wrestling matches. The assistant night chief said that at about five minutes before the fireworks display was to go on six policemen would go over to the firing area “ to keep the crowd back they were posted “ all the way around that area to keep people from going through or on that bombing area ”.

At about 8:30 p.m., the infant plaintiff’s brother, William Kingsland, aged thirteen, Robert A. Shuttleworth, aged thirteen, and William Ryan, aged twelve, together with sister, aged fifteen, entered the fairgrounds by climbing over a fence on the Quinby Drive side of the grounds. The boys had attended the fair on previous nights. While there is some variance in the testimony of the boys as to exactly what they did before they came to the firing area and took the bombs, it seems that they walked over to the midway ” and visited various buildings, concessions and exhibits. They then went over and saw the “ Peaches High Act ”, and the Shuttleworth girl left the three boys. Then they went to where the wrestling matches were to be presented, but the wrestling ring was being set up so they decided to take another walk on the midway ”. A short while later they returned to the infield and in walking over to the wrestling matches passed near the firing area. They paksed some boxes laying on the ground and the Kingsland boy went back 'and took three bombs and two fuses from one of the boxes. He retained one bomb for himself and gave one bomb and a fuse to each of the other two boys. The testimony of the Kingsland boy as to the condition in which he found the bombs, and which was generally corroborated by the other two boys, is at variance with the testimony of Davito as to the condition in which he left them. The Kingsland boy testified that he saw an open box with a. partition in the middle of it which was “ standing up ” on end so that the partition made a “ shelf ”. In the bottom half he said were “ some mortars or pipes ⅜ ⅜ * about ten of them in the bottom there.” On the center shelf or partition “ there was three [bombs] on the outside .bigger ones than the ones I took and there was three in a paper bag or some newspaper on the top ’ ’. The six bombs ‘ ‘ were sitting, the three were sitting on the outside of the paper and there was two or three or four on the inside of the paper ”. He did not take the larger bombs but reached into the paper bag or newspaper which was laying flat down ” and already opened at the top ” and took out the smaller three bombs and the two fuses.

The boys said they were in the firing area from three to five minutes. They saw no one guarding the fireworks and no one told them to go away. They hid the bombs and fuses under some horse show box seats and then went over to see the wrestling matches. After the wrestling matches and the fireworks display they obtained their bombs and went home with Shuttleworth’s sister who had rejoined them.

The Kingsland boy described the bomb which he had as being similar to plaintiff’s Exhibit 11, a “ ground ” bomb which was green in color, except that it had a bigger neck up here and it was burned along the side here. * * * Well, there was a bigger neck on here and it was singed and burned along the sides and there was no wick in there and you could look right down into it; it was black down in there.” The Ryan boy said he also had a green bomb and described it as follows: The bomb was light and it was like, sizzled, around here, burned like and there was a hole in it and you could look down in. Q. Now, this bomb that I have here, plaintiff’s Exhibit 11, has a fuse down in there that you can see, hasn’t it? A. Yes. Q. Was there any such fuse on the bomb you had? A. No. Q. How did that hole look? A. It was shorter than that and a little fatter. You could look down in it; it was all black down in there.” The Shuttleworth boy said the bomb he had was similar to plaintiff’s Exhibit 10 which was an “ aerial ” bomb.

Although the boys admitted that they knew the bombs were fireworks and that they intended to explode them the next night, they -said they had never before seen bombs similar to them.

Murray, the Fireworks Co. ’s general manager, conceded that the mixture of chlorate of potash, dry aluminum powder, sul-phur and black metal antimonium which was contained in the ground bombs was more powerful than gunpowder ”. The purpose of the bombs was to make a “ loud noise ”; they were not weak ” bombs and could be heard a distance of “ a couple of miles ”. When asked if he kept count of the exact number of bombs which were fired at each performance he said,

As the boys approached the Kingsland home which was about two miles from the fairgrounds, they met Mrs. Kingsland, William’s mother, who came from some woods near the road. William showed her the bomb and told her where he got it, and she told him he would have to take it back to the fairgrounds. It was “ pitch dark ”, and she did not take the bomb in her hands. When William got home he put the bomb on the kitchen table where it remained for about an hour. His mother told him to take it out and put it underneath the porch. Instead William took it to the foot of his bed. In the morning his little brother and two little sisters had it in the kitchen. William’s twelve-year-old brother, Eugene, took it from them and gave it back to William in a bedroom. The bomb was on •the dresser and William’s younger brother Robert, aged seven, the infant plaintiff, took it and ran out into the yard. Shortly thereafter the explosion occurred which caused the serious injuries here involved.

Mrs. Kingsland testified that she met the boys on the highway and that William showed her his bomb. She said, “ I really didn’t look at it. I noticed the Shuttleworth boy had one without the wick in it and the Ryan’s looked a little bit burned and Bill’s didn’t look so good, so I didn’t pay much attention to it until I saw it in the kitchen.” She told William to take it back.

When she got home, and while William was taking off his clothes, the bomb was on the table. She said she looked at it and her description of it was as follows:

It was similar to this but had a larger neck. You could look right through the hole, there was no wick, you could see a reflection on the insides.
“ Q. Did it have any black mark that you could recall? A. It was singed down the side.
Q. And how wide a singe, if you can recall? A. I would say half an inch.
“ Q. About half an inch wide, was it? A. About half an inch wide.
‘ Q. Had you ever seen anything that looked like that before ? A. No, sir, I never did.
“ Q. You had never had any experience with these ground bombs, had you? A. No, sir. * * ⅜
“ Q. Did you know it was a bomb? A. No, sir, I never saw anything like it before.
“ Q. Why did you want him to return it to the Fair Grounds? A. Because I thought the thing looked like a dud to me and I thought the fireworks company would take it back and they would refund.” She then told William to take it out and put it under the porch steps because she “ didn’t want it in the house ”.

Mrs. Eingsland said she “ never laid eyes on the bomb in the morning ”. She had seven children, ranging from three to sixteen years of age, “ they all wanted their breakfast at the same time ”, and she 11 was busy getting things ready ”. She thought “ Bill had obeyed ” her and put the bomb under the porch steps.

Thus there was evidence from which the jury could find that defendants had left harmless looking, but highly dangerous, bombs exposed and unguarded in a place of public amusement where a large number of people including children were known to be present. Clearly, the triers of the facts could find that defendants should have foreseen the probable result that children would take those apparently discarded bombs and that they, their playmates or some other child who might come in contact with the bombs would explode them and' be injured thereby.

The fact that the boys may have been trespassers on the fairgrounds is immaterial, since there was sufficient evidence that the article which caused the injury was “ inherently dangerous One who keeps an explosive substance is “ bound to the exercise of a high degree of care to so keep it as to prevent injury to others.” (Travell v. Bannerman, 174 N. Y. 47, 51.) The degree of care required is commensurate with the risk involved, depending upon such circumstances as the dangerous character of the material ” and its accessibility to others, particularly children whose presence should have been anticipated, regardless of whether or not they are trespassers. (See Beickert v. G. M. Laboratories, 242 N. Y. 168, 172, 174-175; Travell v. Bannerman, supra; 35 C. J. S., Explosives, § 5, pp. 227-231; 22 Am. Jur., Explosions and Explosives, §§ 14, 18.)

The issue of proximate cause was also properly left to the jury.. In Carlock v. Westchester Lighting Co. (268 N. Y. 345, 350), we said: “ Where harmful consequences are brought about by intervening and independent forces, the operation of which might have been reasonably foreseen, there is no break in the chain of causation of such character as to relieve the actor from liability.” (Emphasis supplied.)

In discussing “ proximate cause ’has applied to cases where explosives are wrongfully carried away by children, it is stated in 35 Corpus Juris Secundum, Explosives (§ 5, pp. 231, 232): “ Proximate cause. Notwithstanding the person injured is a child, nevertheless to impose liability defendant’s act must have been the proximate cause of the injury. So, where explosives are wrongfully carried away from the place in which they are stored by children capable of understanding the wrongful nature of their act, the-negligence in keeping or storing cannot be regarded as the proximate cause of a subsequent injury to the child or other children by their use, where defendant has done nothing to invite or provoke the act of the child and there is nothing in the circumstances which would cause it to be foreseen. # * ⅝ Where a child, through defendant’s original negligent act, has obtained possession of explosives and his parent, vdth knowledge of their character and of the fact that he has them in his possession, fails to take them away from him, the causal connection between defendant’s act and a subsequent injury to the child is broken, but the parent must have had knowledge of the character of the article.” (Emphasis supplied.)

•The taking and carrying away of the fireworks here was readily foreseeable. This case is not controlled by Perry v. Rochester Lime Co. (219 N. Y. 60). There the defendant stored a chest of nitroglycerin caps on a strip of land between its warehouse and the Erie Canal in Rochester where boys were accustomed to play and fish. In stating the facts this court (per Cardozo, J.), was careful to point out that the caps were packed in tin boxes and that at least thirty-three tin boxes were packed in wooden boxes; that “ the wooden boxes were without marks; they had sliding covers, which were closed ” (p. 62); and that the boys took one of the wooden boxes from the open chest. Thns the caps were stored inside three containérs only the largest of which was open. The following portion of the opinion indicates the emphasis which we placed the circumstance that the caps were thus hidden and not exposed and which clearly distinguishes that case from the case at bar (pp. 65-64): “ The defendant stored the explosives without a permit and in violation of an ordinance. It stored them, moreover, in a public place. It thus became a wrongdoer, and answerable as such for the proximate consequences of the wrong. It became answerable, in other words, for those consequences that ought to have been foreseen by a reasonably prudent man [cases cited]. But we cannot say that what was done with these explosives was something that ought to have been foreseen. The chest, it is true, was open, but the caps were not exposed. A large wooden box hid them. The boys did not play with caps scattered about loosely. They did not play at all. They carried away a large wooden box containing thirty-three smaller boxes, and appropriated the contents. They stole the caps in quantities that must have carried notice even to boys of their age that the act was wrongful. Indeed, there is good reason to believe that they stole, not for play, but for profit, intending to sell the spoils as junk. The defendant had done nothing to invite or provoke this theft. It had not scattered the caps about, or even exposed them to vieio, so that children might feel tempted, and perhaps licensed, to handle and play with them. It had paclced the caps in tins, and then hidden the tins from sight by packing them in wooden boxes. The theft of one of the boxes was no more to be looked for than the theft of the whole chest. It was possible, of course, that the contents would be stolen by boys, or even by adults. But nothing in the situation made that outcome probable. In short, a series of new and unexpected causes intervened and had to intervene before these explosives could bring death to Perry. Not one o.f them was within the range of reasonable expectation. Boys discovered the hidden caps, stole a box, carried it to their home a half a mile away, and killed a playmate. His death was not the proximate result of the open chest in the (Emphasis supplied.)

It is also to he noted that our holding in that case was carefully limited by the following statement (p. 65): “ Nothing in our ruling is in conflict with the recognition of a duty to protect the young and heedless from themselves, and guard them against perils that may reasonably be foreseen. To define the orbit of that duty is unnecessary now (Travell v. Bannerman, 71 App. Div. 539; 174 N. Y. 47 [and citing other cases]). It is enough to assume that there are times and circumstances that will call the duty into play. The remoteness of the relation controls our judgment, and distinguishes the case at hand from others where liability has been enforced. Thus, in Travell v. Bannerman (71 App. Div. 439; 174 N. Y. 47), the explosives were thrown into a vacant lot, they were apparently mere refuse, and the defendant ought to have foreseen that a child would think itself at liberty to handle them.” Here there was evidence that the bombs were left exposed from about 5:00 p.m. to nearly 10:00 p.m. at the firing point where fireworks had been displayed at the fair on five consecutive, preceding nights. The very purpose of the display was to attract crowds in which there was concededly a considerable number of children. These particular'boys had been there on previous nights. Indeéd it is difficult to think of a place more attractive to children than a fixed fireworks display area at a county fair and an article more inviting as a souvenir or plaything than a fireworks bomb, either exploded or unexploded.

We need not go as far as what appears to be the trend of modern legal thought evidenced in the following quotation from section 522 of Volume 3 of the Restatement of the Law of Torts:

“ One carrying on an ultrahazardous activity is liable for harm * # * although the harm is caused by the unexpectable
“(a) innocent, negligent or reckless conduct of a third person, or
action of an animal, or
“(c) operation of a force of nature.
Comment:

Defendants contend that the chain of causation was broken by the intervention of the mother’s alleged negligence in failing effectively to dispose of the bomb. Certainly on this record it was a question for the jury whether the mother should have apprehended any special danger from what appeared to be a burned-out fireworks bomb or “ dud ”, and, at any rate, whether she did what was reasonably indicated, by telling her son to leave the object outdoors. We cannot hold on this record as a matter of law that the mother’s conduct broke the chain of causation. At most that was a matter for the jury.

Other cases cited by defendants are readily distinguishable from the instant case on the ground that they do not involve “ inherently dangerous ” objects left exposed and accessible to children at a place of public amusement.

Babcock v. Fitzpatrick (221 App. Div. 638, affd. 248 N. Y. 608), like the Perry case (supra) concerned the wrongful taking by boys of hidden dynamite caps. There the defendant was engaged in laying a pipe line in a rural area. His workmen stored some tools and a 700-pound, cast-iron water valve under the porch of a nearby private house. Underneath the water valve they stored a box of percussion caps which, however, was visible from the road in front of the house. A nephew of the owner of the house found the caps, carried them a considerable distance away and distributed them to several boys including the infant plaintiff who was aware of the nature of the caps and the method of exploding them. He placed a string inside the cap, set fire to the string and the cap exploded in his hand. In affirming the reversal of a judgment in favor of plaintiff which had been recovered on the theory that defendant had maintained an “ attractive nuisance ” we held that there was no negligence on the part of defendant and the placing of the caps under the porch was not the proximate cause of the injury.

Hall v. New York Tel. Co. (214 N. Y. 49, 52) involved a bottle of denatured alcohol left by defendant’s employees at the side of a highway, and we specifically said that the alcohol “ was not of necessity dangerous. Neither was it such an apparatus or article as would induce or allure children to play with it.”

In Morse v. Bufalo Tank Corp. (280 N. Y. 110), the defendant left a drip can underneath the faucet of a gasoline drum and one night after the close of business several boys carried it away and threw the contents of the can on a bonfire. The infant plaintiff running past the fire fell into it and was injured. There again we specifically stated (p. 116): “ While highly inflammable, the use of gasoline does not place the case at bar within the exception concerning the use of inherently dangerous materials. (Travell v. Bannerman, 174 N. Y.

In Beickert v. G. M. Laboratories (242 N. Y. 168, supra), the infant plaintiff was burned by the igniting of some pieces of film which another boy had picked up in the rear of defendant’s plant. We there again pointed out (pp. that the case was distinguishable from Travell v. Bannerman (supra) and said (p. 172): The rule seems to be thoroughly settled, at least in this State, that a plaintiff cannot recover in cases of this character unless the article which causes the injury is inherently dangerous. These pieces of film were not inherently dangerous, and only became so when they were ignited.”

The liability as between the defendants on their cross claims was properly decided. As stated above (pp. 414, 415) after the verdict the trial court (1) denied motions by both defendants to set aside the verdict in favor of plaintiffs, (2) denied the Fireworks Co.’s motion to set aside the verdict of “no cause of action ” on its cross claim and for judgment over against the Agricultural Society and (3) granted the Agricultural Society’s motion to set aside the verdict of “ no cause of action ” on its cross claim and for judgment over against the Fireworks Co.

• The Fireworks Co. contends first, that its motion for a non-suit and a directed verdict should have been granted because it was not an “ independent contractor ” to present a fireworks display but only a “ seller of fireworks ” who sold certain display pieces and also furnished a pyrotechnist who became the ad hoc employee of the Agricultural Society. The court charged that the Agricultural Society was not responsible for any acts of negligence of the Fireworks Co.’s employees. That was a ruling in effect that the Fireworks Co. was an independent contractor and that the pyrotechnists had not become the ad hoc employees of the Agricultural Society. No other conclusion was proper on this record. There is evidence that the Fireworks Co. was one of the largest manufacturers and exhibitors of fireworks in the country. The contract between the defendants was not a mere bill of sale of fireworks and a loan of pyrotechnists. It was a formal agreement prepared by the Fireworks Co. in which it agreed to furnish * * * an exhibition of fireworks ” in accordance with an attached program ”. (Emphasis supplied.) In addition to furnishing an “ experienced pyrotechnist ” it agreed “ to furnish all lumber required ”, to pay all freight, express and cartage charges ” and to pay “ all traveling and other expenses ” of the pyrotechnist. More significant is the fact that it agreed to indemnify the Agricultural Society from liability by reason of any condition of the “ fireworks, apparatus, equipment or fixtures furnished by ” it connection with the exhibition hereinbefore agreed to be given ”, and “ from any and all liability m * ⅜ by reason of any act or omission of * * * [the Fireworks Co.] or any of its agents, servants or employees.” It also provided that the Fireworks Co. was to be paid $1,500 immediately after this contract has been fulfilled ”.

The program attached to the contract is headed “ GraNd to be given each evening. Price $250.00 per night. Synchronically time fused so that each shell ascends in rapid rotation to form a continuous and symmetrical whole.” The program then lists the quantity, size and name of the fireworks to be used.

In furnishing the information for the display permit the Fireworks Co. stated that Mr. Murray, its vice-president and general manager, “ plans to take charge and fire it himself.” Thus it was clearly not intended that the specialized work of discharging these fireworks was to be under the control of the

Wyllie v. Palmer (137 N. Y. 248) is not to the contrary. There the court found that there was merely a sale of fireworks; that the 4th of July citizens committee “ controlled and directed ” the fireworks display; that the boy who discharged the rocket which caused the injury had been employed by the defendant for the limited purpose of assisting another man “ in handling and setting off the larger pieces ”, and that he was directed to fire that particular rocket by a member of the committee.

The Fireworks Co. also argues that in view of the provisions of section 1894-a of the Penal Law it “ could not legally give a fireworks display ” and that the exhibition was intended to be solely the work of the Fair Company.” Subdivision 2 of the statute provides: “ Except as herein otherwise provided, any person who shall offer or expose for sale, possess or sell, furnish, use, explode or cause to explode any fireworks is guilty of a misdemeanor.”

Subdivision 3 provides for permits for public displays and provides in part: the provisions of the preceding subdivision, the permit authority of a * * * village or town may upon application in writing, grant a permit for the public display of fireworks by municipalities, fair associations, amusement paries or organizations of individuals. The application for such permit shall set forth:

“ a. The name of the body sponsoring the display and the names of the persons actually to be in charge of the firing of the display. * * * ” (Emphasis supplied.)

The subdivision goes on to provide for other information to be included in the permit. It will be noted that the statute provides that only certain organizations including “ fair associations,” but not a fireworks company, may make application for a permit, but it does not provide that the permit must be issued in the name of such organization. The application in the instant case was made by the fair association and the permit was issued in the name of the Fireworks Co. which was actually in charge of the firing of the display. That the Legislature contemplated that a contract for the exhibition of fireworks might be entered into with a fireworks company, as was done here, is evidenced by subdivision 5 of the statute which provides that the permit authority shall require an adequate bond from the applicant “ or from the person to whom a contract for such display shall be awarded * * *.” Consequently it cannot be said as contended by the Fireworks Co. that it “ could do no more than to sell the fireworks to the Fair Company. Anything further would be criminal ”, and that therefore the “ display was solely the work of the Fair Company

It is true as the court in effect charged that the Agricultural Society, as the owner and operator of the fairgrounds, had a duty to safeguard the public from these dangerous explosives and that the duty could not be delegated to an independent contractor. (See Engel v. Eureka Club, 137 N. Y. 100, 104-105; Berg v. Parsons, 156 N. Y. 109, 115; Platt v. Erie Co. Agric. Soc., 164 App. Div. 99, 103-104; Arnold v. State of New York, 163 App. Div. 253, 262-263; Roper v. Ulster Co. Agric. Soc., 136 App. Div. 97; Penal Law, § 1894-a; Labor Law, art. 16; Explosives, Federal Explosives Act, U. S. Code, tit. 50, ch. 8, as amd.) It is equally true that the Agricultural Society was free to indemnify itself by contract against liability resulting from the violation of such a duty. The contract provided that the Fireworks Co. would indemnify and save harmless the Agricultural Society from “ any and all liability to any person or persons for or by any reason ”: (1) “ of any condition whether defective or otherwise, or [sic-of] fireworks, apparatus, equipment or fixtures furnished by ” the Fireworks Co. and (2) “ of any act or omission of * * [the Fireworks Co.] or any of its agents, servants or employees.” (Emphasis supplied.) In our judgment the broad, clear language of the indemnity agreement covers the liability here imposed on the Agricultural Society. Murray, the Fireworks Co. ⅛ vice-president and general manager, was in complete charge of the display. The Agricultural Society had provided a safe place for the storage of the fireworks. Without notice to the Agricultural Society and for their own convenience the employees of the Fireworks Co. on Saturday night removed the three defective bombs from the meter house where they had been stored since the preceding Monday night and exposed them at the firing point. The injury of the infant plaintiff was caused by “ a condition * * defective or otherwise ” of a piece of fireworks furnished by the Fireworks Co. and by an ‘ ‘ act or omission ’ ’ of its employees.

The Fireworks Co. contends that the failure of the Agricultural Society to provide ample police protection to the firing area deprives it of any right to indemnity. The record shows, as found by the Trial Judge, that Murray could request any additional police protection he required and that such was the substantial interpretation of tbe contract between tbe parties. No additional police protection was requested on Saturday nigbt. Tbe same appears to be true of “ rope lines ” wbicb under tbe contract were to be furnished by tbe Agricultural Society if required for tbe protection of tbe public ”. Neither defendant seems to have considered them necessary on any of tbe nights during tbe week of tbe fair. Tbe claim of lack of police protection on tbe part of tbe Fireworks Co. appears to be inconsistent with its claim that there were very few people in tbe “ infield ” on Saturday nigbt and that Murray and Davito did not need any help in taking care of their material in tbe firing area wbicb was only 100 feet long and well lighted, and that they did in fact guard it diligently. Tbe negligence of tbe Agricultural Society in failing to perform its nondelegable duty of protecting tbe public from these dangerous explosives was no more than what has been termed “ passive negligence and does not preclude tbe Agricultural Society from asserting its right of indemnity under tbe contract. Any other construction of tbe indemnity agreement would defeat its purpose. (Dudar v. Milef Realty Corp., 258 N. Y. 415, 422; Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145, 154.)

Tbe judgment should be affirmed, with costs.

Lewis, J.

(dissenting). As I view tbe decision about to be made it pays scant heed to tbe long established rule of tort law that “ Tbe proximate cause of an event must be held to be that wbicb in a natural sequence, unbroken by any new cause, produces that event and without wbicb that event would not have occurred.” (Rider v. Syracuse Rayid Tr. Ry. Co., 171 N. Y. 139, 147.) I cannot bring myself to tbe conclusion reached by a majority of tbe court that tbe act of William Kingsland committed at tbe defendant’s fairgrounds on tbe nigbt of August 25, 1945 — when be pilfered and took home a bomb — and those subsequent. acts by wbicb tbe bomb reached and injured bis younger brother, were a sequence of events wbicb ought to have been foreseen by tbe defendants in the exercise of tbe care wbicb tbe law required of them.

Believing, as I do, that tbe facts in tbe present case fit squarely within, and call for tbe application of, tbe rule in Perry v. Rochester Lime Co. (219 N. Y. 60), I shall quote presently from this court’s opinion in that case wbicb, as I view it, calls for a reversal of the judgment we are now reviewing. Before doing so I refer to testimony given by William Kingsland on the vital point in the present case. After stating that while walking about the bombing area he looked into a partitioned box which stood on end, he testified as follows on direct examination:

“ Q. Now, will you tell us in your own words what was down there in the bottom? A. In the bottom was some mortars or pipes or whatever they call them, about ten of them in the bottom there.
“ Q. And how many bombs did you see A. Well, there was three on the outside bigger ones than the ones I took and there was three in a paper tag or some newspaper on the top.
“ Q. Where were those six bombs you now describe? A. Well, they were sitting, the three were sitting on the outside of the paper and there was two or three or four on the inside of the paper.
“ Q. And were they on this center shelf or partition? A. Tes, sir.
“ Q. They were all in there, were they ? A. Yes, sir. # * *
“ Q. Now, you say you are not sure whether it was a paper tag or a newspaper that the others were in, is that right. A. Yes, sir.
Q. But there were some others in some form of paper around them?
“ A. Yes, sir. * * *
“ Q. Now, you didn’t take the larger bombs, did you? A. No, sir.” (Emphasis supplied.)

Later, on cross-examination, the same witness revealed the following added details:

“ Q. You went over to the boxes, is that it? A. Yes, sir.
“ Q. And you saw some papers there then, didn’t you? A. Yes, sir.
Q. And there was nothing visitle when you first ivent over except the newspapers, was there? A. Newspapers; there was a grey tag or something like that.
Q. In other words, all you saw when you got over there was newspapers and a grey tag, is that true? A. Yes, sir.
Q. And it wasn’t until you got to opening up the bag and opening up the newspapers that you found anything, wasn’t it? A. Well, I seen some bombs out there and then I knew there was some bombs in there.
“ Q. That was after you opened up the newspaper, wasn’t it? A. Well, I was sure I seen the bombs there first.
“ Q. You went over and saio a newspaper and the bag, didn’t you. A. Yes, sir.
Q. And then you started pawing around the newspaper and the bag, didn’t you¶ A. That was a bag or newspaper.
Q. And then after you got to pawing around the newspaper or bag, whichever it was, then you discovered the bombs, is that right¶ A. Yes, sir.” (Emphasis supplied.)

From this undisputed testimony by the boy who, with knowledge of his wrongdoing, extracted the bombs from the newspaper or bag in which they were wrapped, it is clear that the bombs which he removed from the box were not exposed to view but were covered or wrapped and came into his possession only after his admitted well-directed “ pawing ” in the box.

It will serve no purpose to repeat stated by Judge CoNWay — which describes the devious course by which the stolen bomb reached the infant plaintiff’s home. It is enough to say that between the hour when William Kings-land retrieved the bomb from the hiding place he had chosen for it under the Fairground bleachers, and that hour in the morning of the following day when the bomb became the plaything of his younger brother at his home, new causes — not reasonably to be foreseen by the defendants and not amounting to actionable fault, as I view them — intervened before the bomb did its harm.

From facts adduced by the testimony already quoted, which I regard as decisive, I pass to an excerpt from the opinion written for this court in the Perry case (219 N. Y. 60, supra)—my purpose being to demonstrate by Judge Cardozo’s recital that the facts which prompted a nonsuit in that case are strikingly similar to those proven in the case at bar. In the Perry case Judge Cardozo wrote for the court (pp. 62, 63-64): The defendant stored explosives in a chest on the bank of the Erie canal in the city of Rochester. It stored them in a public place and in violation of law. Two boys carried away some of the boxes, secreted them in a barn, and handling the contents the next day, brought about an explosion. A little boy of eight years who was near them, was killed. The question is whether the defendant may be held to answer for his death. * * *

“ The defendant stored the explosives without a permit and in violation of an ordinance. It stored them, moreover, in a public place. It thus became a wrongdoer, and answerable as snch for the proximate consequences of the wrong. It became answerable, in other words, for those consequences that ought to have been foreseen by a reasonably prudent man (Atchison, T. & S. F. Ry. Co. v. Calhoun, 213 U. S. 1, 7; McDowall v. Great Western Ry. Co., L. R. [1903] 2 K. B. 331, 337; Hall v. N. Y. Telephone Co., 214 N. Y. 49). But we cannot say that what was done with these explosives was something that ought to have been foreseen. The chest, it is true, was open, but the caps were not exposed. A large wooden box hid them. The boys did not play with caps scattered about loosely. They did not play at all. * * * They stole the caps in quantities that must have carried notice even to boys of their age that the act was wrongful. * * * The defendant had done nothing to invite or provoke this theft. It had not scattered the caps about, or even exposed them to view, so that children might feel tempted, and perhaps licensed, to handle and play with them. It had packed the caps in tins, and then hidden the tins from sight by packing them in wooden boxes. The theft of one of the boxes was no more to be looked for than the theft of the whole chest. It was possible, of course, that the contents would be stolen by boys, or even by adults. But nothing in the situation made that outcome probable. In short, a series of new and unexpected causes intervened and had to intervene before these explosives could bring death to Perry. Not one of them was within the range of reasonable expectation. Boys discovered the hidden caps, stole a box, carried it to their home a half a mile away, and killed a playmate. His death was not the proximate result of the open chest in the highway. ” (Emphasis supplied.)

After a careful reading of the record before us I find no facts which make inapplicable the rule of the Perry case (supra). There, as in the ease at hand, a defendant was held to be a wrongdoer; but there — as I believe we should hold in the present case — the defendants’ wrongdoing was held not to be the proximate cause of injuries which befell the infant plaintiff.

On argument of the appeal herein counsel for the plaintiff-respondents suggested that the rule of the Perry case {supra) is no longer the law of this State. In support of that suggestion three cases in foreign jurisdictions were cited but the following decisions which cite and follow the rule of the Perry case give ample proof that the principle of law there applied still prevails in this jurisdiction (Maloney v. Kaplan, 233 N. Y. 426, 431; Beickert v. G. M. Laboratories, 242 N. Y. 168, 174; Morse v. Buffalo Tank Corp., 280 N. Y. 110, 118; Babcock v. App. Div. 638, 642; Demjanik v. Kultau, 242 App. Div. 255, 257; Hallenbeck v. Lone Star Cement Corp., 273 App. Div. 327, 332).

Accordingly, I dissent and vote to reverse the judgment and dismiss the complaint.

LoughraN, Ch. J., DesmoND and Dye, JJ., concur with CoN-way, J.; Lewis, J., dissents in opinion in which Fuld, J., concurs.

Judgment affirmed.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    In the Matter of the Arbitration between Albrecht Chemical Co., Inc., Respondent, and Anderson Trading Corp., Appellant.
    Argued January 6, 1949;
    decided March 3, 1949.

      Burton 8. Cooper for appellant.
    To compel arbitration, the contract therefor must be in writing. (Civ. Prac. Act, § 1449; Columbia Malting Co. v. Clausen-Flanagan Corp., 3 P. 2d 547; Matter of Tanenbaum Textile Co. v. Schlanger, 287 N. Y. 400.)

      George M. Ssabad, Joseph G. Blum and Herbert Goldenberg for respondent.
    I. The written purchase orders containing the arbitration clause are binding on appellant though not signed by it. (Newburger v. American Sur. Co., 242 Y. 134; Matter of Japan Cotton Trading Co. v. Farber, 233 App. Div. 354; Matter of Exeter Mfg. Co. v. Mar rus, 254 App. Div. 496.) II. The written purchase orders containing the arbitration clause were accepted by appellant and created valid agreements to arbitrate any disputes arising thereunder. (Matter of Tanen-baum Textile Co. v. Schlanger, 287 N. Y. 400; More v. New York Boivery Fire Ins. Co., 130 N. Y. 537; 1 Williston on Contracts [Rev. ed.], §§ 90A, 90B; Restatement, Contracts, p. 872; Matter of Exeter Mfg. Co. v. Marrus, 254 App. Div. 496; Matter of Japan Cotton Trading Co. v. Farber, 233 App. Div. 354.)
   Fuld, J.

In May of 1948, Anderson Trading Corp., as seller, and Albrecht Chemical Co., Inc., as buyer, arranged over the telephone for the sale and purchase of 10,000 pounds of a certain dye. Thereafter, Albrecht sent the seller two “ purchase orders ”, each for 5,000 pounds of dye. In addition to describing the merchandise and specifying their quantity and price, each order bore on its face the notation “ SigN AND 0ns Copy por Our Records ”, and, on its reverse side, eleven separately numbered terms and conditions. One of these conditions provided for the arbitration of any controversy or claim that might arise between the parties (¶ 11), and another recited that the “ order and the terms and conditions thereof shall be deemed accepted ” by the seller if he should fail to advise the buyer to the contrary within ten days (¶ 9).

The seller neither signed nor returned the purchase orders. Instead, it sent its own memoranda of sale to the buyer, and in them made no reference to the buyer’s purchase order or to any provision of it. About ten days later, on May 21st, Albrecht purchased a further quantity of the dye; on this occasion, the only document issued was the seller’s memorandum of sale. During the course of the following month, Albrecht, complaining that the goods were defective, demanded that the matter be arbitrated as provided in its purchase order. Anderson refused to accede to the request, maintaining that it had never agreed to arbitrate.

The purchaser thereupon initiated the present proceeding. The court at Special Term, holding that the seller’s explicit consent to arbitrate was unnecessary in view of its failure to indicate disagreement, directed arbitration, and tbe Appellate Division affirmed. We see no alternative but to reverse, for tbe seller never agreed or bound itself to arbitration.

In tbe first place, considering tbe affidavits are before us, it may be that a contract was consummated by telephone, and, if that is so, nothing more need be said. Clearly, such an oral contract could not have created a binding agreement to arbitrate future differences, even if tbe parties bad so intended. contract to arbitrate a controversy thereafter arising between tbe parties must ’ ’, tbe Civil Practice Act is explicit, “ be in writing ” (Civ. Prac. Act, § 1449).

We go further, however, and bold that, even if tbe terms of tbe agreement were not finally fixed by tbe oral communications over tbe telephone and remained open to further negotiation, tbe subsequent written exchanges did not commit tbe seller to arbitrate. Tbe buyer’s purchase order was at best merely an offer or a counteroffer, and its retention by tbe seller without objection may not be deemed ratification of, or acquiescence to, tbe terms wbicb it contained.

This follows from tbe settled rule that, where tbe recipient of an offer is under no duty to speak, silence, when not misleading, may not be translated into acceptance merely because tbe offer purports to attach that effect to it. (See Matter of Tanenbaum Textile Co. v. Schlanger, 287 N. Y. 400, 404; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310, 318 et seq.; More v. New York Bowery Fire Ins. Co., 130 N. Y. 537, 545, 547; see, also, 1 Williston on Contracts [Rev. ed.], § 91, pp. 279-280; Restatement, Contracts, § 72 [1].) That fundamental principle we stated in tbe Tanenbaum case (supra), which also concerned tbe binding of an arbitration clause (287 N. Y. at p. 404): ‘“A party cannot be held to contract where there is no assent. Silence operates as an assent and creates an estoppel only when it has the - effect to mislead * * *. When a party is under a duty to speak, or when his failure to speak is inconsistent with honest dealings and misleads another, then bis silence may be deemed to be ”

It is to be observed that, in the cases wherein acceptance has been thrust upon a party as tbe result of bis silence, something more than here was present. For example, tbe parties may nave been advised and warned by a previous course of dealings that inaction would be taken as assent (see Matter of Catz Amer. Sales Corp. [Holleb & Co.], 298 N. Y. 504, affg. 272 App. Div. 689; see, also, 1 Williston on Contracts, op. cit., § 91B; Restatement, Contracts, § 72 [1], subd. [c]), or, acting through a common agent, they may have impliedly authorized him to bind them without more to various provisions, including one on arbitration. (See Matter of Catz Amer. Sales Corp. [Holleb & Co.], supra.)

In the present case, there is no basis for finding that the seller had a duty to speak out and reject the arbitration clause in the buyer’s purchase order. Those orders were not issued by an agent acting for both parties; and obviously the seller’s silence could not have been misleading. Indeed, on each occasion, instead of heeding the direction to “ SigN AND RettjrN ” the order, the seller dispatched its own memorandum. In whatever light we view that document — as affirmation of an agreement closed'over the telephone, as an offer based upon previous negotiations, or as a counteroffer to the purchase order — it did not amount to acceptance of the arbitration provision. Implicit in the seller’s conduct in sending its own memorandum was notice that it did not accede to the buyer’s terms; no positive rejection was necessary to avoid them. In point of fact, there is strong indication that the buyer could not have harbored any expectation that arbitration had been assented to, for the third transaction, that of May 21st, was executed without any purchase order from the buyer and with no mention whatever of a provision to arbitrate.

In short, neither expressly nor impliedly, neither directly nor indirectly, did the parties ever discuss arbitration or bargain about it, and certainly they reached no agreement thereon. (See Matter of Kahn [Nat. City 284 N. Y. 515, 523; Matter of Bullard [Grace Co.], 240 N. Y. 388, 395.) The buyer’s only recourse for alleged breach is to the courts.

The orders appealed from should be reversed, and the petition dismissed, with costs in all courts.

Ch. J., Lewis, CoNway, DesmoNd and Dye, JJ., concur.

Orders reversed, etc.


author: Lewis, J.

text:
    In the Matter of Oliver V. Morrissey, Respondent, against New York State Employees’ Retirement System et al., Appellants.
    Argued January 12, 1949;
    decided March 3, 1949.

      Nathaniel L. Goldstein, Attorney-General (John C. Grary, Jr.,

    and Wendell P. Brown of counsel), for appellants.
    I. Article 4 of the Civil Service Law does not permit optional withdrawal from membership by an employee while he remains in the service of the State. II. Respondent validly acquired membership in the Retirement System in 1935.

      Knowlton Durham for respondent.
    I. The law does not expressly or impliedly prohibit the withdrawal of an optional member of the Retirement System who subsequently qualifies for a pension under another State statute. II. The actuarial position of the Retirement System would not be adversely affected by the judgment below. III. Petitioner is not validly a member of the Retirement System.
   Lewis, J.

This case comes to us as a submission of controversy upon agreed facts. (Civ. Prac. Act, §§ 546-548.)

The appeal, by our leave, is from a judgment entered upon the unanimous order of the Division which directs the appellants, New York State Employees’ Retirement System and the Comptroller of the State of New York to accept and-approve the petitioner’s application for his withdrawal from the Retirement System, and to refund to him all moneys standing to his credit in the System’s annuity savings fund.

The action, as directed by the judgment, to be taken by the appellants depends for its validity upon statutory authority when applied to the following agreed facts: On October 3, 1919, the petitioner, Oliver V. Morrissey, was appointed to a clerical position in the Division of Military and Naval Affairs of the State of New York in the office of New York National G-uard headquarters. Ever since that date he has been so employed in the military service of the State of New York except while absent on military leave in the service of the Army of the United States from October 15, 1940 to October 1, 1941, and from February 3, 1942 to January 13, 1947.

Prior to the periods of his army service mentioned above the petitioner had served on active duty in the United States Naval Eeserve in World War I from December 3, 1917 to June 24, 1919, and was honorably discharged therefrom on September 30, 1921. On October 2, 1939, he had completed twenty years of employment and service as a clerical employee in the Division of Military and Naval Affairs of the State of New York and thereafter, on December 17, 1943, attained the age of fifty years. Meantime, on June 16, 1935, the petitioner joined the New York State Employees’ Eetirement System and has ever since been a member thereof. By making an additional contribution at the time of joining the Eetirement System his service was antedated to October 3, 1919, which, as we have seen, was the date of his original appointment. Since the time of joining the Eetirement System the amount required by its rules and regulations to be contributed has been regularly deducted from petitioner’s monthly compensation from the State of New York and has been credited to petitioner’s account until the amount standing to his credit on the books of the System as of December 1, 1947, was $3,969.35. Under date of July 31, 1947, the petitioner submitted to the Comptroller of the State of New York, as administrative head of the Employees’ Eetirement System, a written application for withdrawal as a member thereof and for refund of his contributions thereto standing to his credit in the annuity savings fund. The asserted ground of his application for withdrawal was that he was eligible for retirement on pension under section 19-a of the Miliary Law, which alleged fact is claimed to have made him ineligible for membership in the Eetirement System under subdivision 2 of section 52 of the Civil Service Law. Under date of August 21, 1947, the State Comptroller replied by letter to the petitioner’s application and thereby advised him that his membership in the System was valid and that accordingly he might, not withdraw therefrom.

In this proceeding the petitioner has thus far successfully contended that the foregoing agreed facts entitled him to withdraw from the Employees’ Eetirement System at any time after December 17, 1943 — the date on which he attained the age of fifty years, after completing more than twenty years’ employment in the military service of the State of New York. Accordingly, he asserts the propriety of the order and judgment of the Appellate Division which directs the appellants to accept and approve his application for withdrawal from the System and to refund to him the amount of his contributions thereto standing to his credit in the annuity savings fund.

The respondents-appellants deny the existence of statutory authority which entitles the petitioner to the relief granted to him by the Appellate Division and contend that the judgment should be reversed and the proceeding dismissed on the merits.

The petitioner’s employment in the military service of the State made him eligible for ultimate pensioned retirement upon his qualifying within conditions set forth in section 19-a of the Military Law. That statute provides that any veteran ‘£ ⅜ * * who shall have been employed for * ⅜ * twenty years or more in the military or naval service of the state of New York # * ⅝ may, upon reaching the age of sixty-four years upon his own request and the approval of the adjutant-general of the state, or shall, upon being discharged or released from such employment without fault on his part after reaching the age of fifty years after serving as aforesaid, or upon being incapacitated for performing the duties of his position after twenty years of such service, be retired from such employment with the approval of the adjutant-general, and thereafter during his life there shall be paid to him * * * an annual sum equal * * * to one-half of the compensation paid to him in the last year of his employment. ’ ’

However, so long as the petitioner remains a member of the Eetirement System he is precluded from receiving such pension by former subdivision 1 of section 72 (now § 93, subd. a) of tbe Civil Service Law which provides: “ § 72. Limitation of other statutes. 1. No other provision of law in any other statute which provides wholly or partly at the expense of the state of New York for pensions, retirement benefits, emoluments or awards for employees in the state service, their widows or their other dependents, shall apply to members or beneficiaries of the retirement system established by this article, their widows or their other dependents. ⅝ ⅝ * ”

We do not think, however, that on July 31, 1947 — when the petitioner applied for withdrawal of his membership — there was then a legal basis for his assertion that his eligibility for a pension under section 19-a of the Military Law (quoted supra) made him ineligible for membership in the Eetirement System. True it is that subdivision 2 of section 52 (now § 54, subd. e) of the Civil Service Law provided (with exceptions not here material) that: “ Persons who are or who may be entitled to benefit by existing laws providing for pensions and annuities for civil service employees wholly or partly at the expense of the state of New York * * * shall not be members [of the Eetirement System] * *

But section 85 id. (now § 97) enacted by chapter 66 of the Laws of 1932 — before the petitioner joined the Eetirement System — provides in part: ‘ ‘ All war veterans in state service on March twenty-first, nineteen hundred thirty, entitled to benefit under the provisions of ⅜ ⅝ * section nineteen-a * * * of the military law are also given the right to elect to become members of the New York state employees’ retirement system, and to be covered by all the provisions of law relative thereto.”

Read with subdivision 1 of section 72 (quoted supra), section 85 granted to the petitioner — a war veteran who was in State service on March 21, 1930, and who was then entitled to benefit under section 19-a of the Military Law — the right to elect to retain his pension rights under section 19-a of the Military Law or to join the Retirement System. He could not retain benefits from both. Accordingly we regard as being without merit the petitioner’s claim that bis admission to membership in the Retirement System in 1935 was without legal sanction.

We do not agree with his contention that he had no right of election under section 85 and that he was not entitled to benefit under that statute because his right under section 19-a of the Military Law to retirement at the age of sixty-four had not matured. The statute does not limit the right of election to those who have already reached the age, and met those other conditions which make them eligible for retirement with pension. We think the word “ entitled ” as employed in section 85 was intended to identify that class of persons who, upon attaining the requisite age and period of service, will ultimately qualify for pension rights. Such eligibility as the petitioner had for benefits under section 19-a of the Military Law made him ineligible for membership in the Retirement System until February 29, 1932, when there became effective section 85 of the Civil Service Law (quoted supra) which removed that ineligibility and permitted him to elect — as he did in 1935 — between pension rights to which he might ultimately become entitled under section 19-a of the Military Law and the wider field of benefits available to him by membership in the Retirement System. The choice then made, by which the petitioner became a member of the System, subjected him thereafter to the provisions of law which govern that System and which, as we conclude, do not grant him the right he now asserts which —■ while he remains in the sendee of the State —■ would give him the dual advantage of pension benefits under section 19-a of the Military Law and the privilege to withdraw his membership in the Retirement System and receive a refund of his contributions with all interest credited thereto.

The protection which the petitioner’s membership has given him since 1935, has imposed certain liabilities upon the Retirement System. The denial of his application to withdraw has not, and will not deprive him of the benefits he chose when he elected to take advantage of the statutory right (§ 85 id.) to join the System. To grant him — as a Retirement System member who proposes to remain in the service of the State — the right to withdraw and to receive the refund which he now demands would permit him to use the System as an agency affording temporary insurance protection and a temporary depository for funds at interest. We do not find in the statutes governing the administration of the Retirement System an indication that its funds are available to State employees for such use. Those funds comprise contributions by members which create the annuity savings fund. Except in those instances where provision is made for refund under prescribed circumstances (§ 61, subd. 1 [present § 71]) —which provisions do not include a member’s voluntary withdrawal while continuing in State service —- annuity savings must remain for transfer to the annuity reserve fund to provide a reserve, created and maintained on an actuarial basis, for payment of those portions of retirement allowances which are annuities (see Civil Service Law, § 58 [now §§ 63, 64]). It is thus made clear that the continuance of a valid membership in the Retirement System during the period of a member’s State employment is one of the factors upon which the successful operation of the System depends.

In the administration of the Retirement System the Comptroller, as its administrative head — whose acts are governed by statute — may not grant the petitioner, while he remains in State service, the privilege of withdrawal from membership, nor may he make the refund now demanded by the petitioner in the absence of statutory authority for such action. It is not enough, as the petitioner suggests, that no relevant statute prohibits such action. The absence of statutory prohibition does not permit us to imply the power with which the Comptroller must be endowed to conform legally with the petitioner’s present demand. The decisions have made it plain that “ ⅝ * # It is a dangerous principle to imply power when it is not conferred by legislative authority in clear and distinct terms. It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain intent and obvious meaning of an act, rather than to speculate upon what might have been the views of the legislature in the emergency which may have arisen. It is wiser and safer to leave to the legislative department to supply a supposed or actual casus omissus, than attempt to do it by judicial construction.” (People ex rel. Brown v. Woodruff, 32 N. Y. 355, 364; see) also, People ex rel. City of Olean v. Western N. Y. & Pa. Traction Co., 214 N. Y. 526, 529; Lawrence Constr. Corp., v. State of New York, 293 N. Y. 634, 639.)

As we may draw no inferences from the agreed facts except as they follow as a matter of law (Lafrins v. Whitney, 233 N. Y. 107,110; People v. Hewson, 224 N. Y. 136,139), we conclude that upon the agreed facts in this proceeding the State Comptroller, as administrative head of the New York State Employees’ Retirement System, acted within the sanction of applicable law when -— lacking, as he did, statutory authorization to grant the petitioner’s written application dated July 31, 1947 — he denied ■permission to the petitioner to withdraw as a member of the Retirement System and refused to refund all moneys standing to the petitioner’s credit in the annuity savings fund.

The order of the Appellate Division should be reversed, and the submitted controversy remitted to that court, with directions to enter an order dismissing the proceeding, without costs.

Loughran, Ch. J., CoNway, Desmond, Dye and Fuld, JJ., concur.

Order reversed, etc.

       The Civil Service Law was revised and renumbered by chapter 841 of the Laws of 1947, effective July 1,1948. As the statutory language and references in this submission of controversy were those in effect prior to the revision of 1947, the references herein to sections of the Civil Service Law are to the section number as designated prior to the revision, with parenthetical reference to the present designations.


author: Dye, J.

text:
    In the Matter of the Accounting of Anna M. Barry, as Substituted Trustee under the Will of Albert Burk, Deceased. Anna M. Barry, Individually, et al., Appellants. Anna M. Barry, as Substituted Trustee under the Will of Albert Burk, Deceased, et al., Respondents.
    Argued December 2, 1948;
    decided March 3, 1949.

      Jack Korshin, F. Lloyd Barry and Sidney K. Nadelson for appellants.
    I. The Appellate Division was in error in refusing to pass upon the construction urged by the appellants. It was their duty, and it is the duty of the Court of Appeals to pass upon such construction. (Wilson v. Mechanical Orguinette Go., 170 N. T. 542; Matter of Davis, 149 N. Y. 539; Kelsey v. Western, 2 N. Y. 500; Matter of Winburn, 270 N. Y. 196; Groker v. Williamson, 208 N. Y. 480.) II. One half of the remainder vested in the two brothers and sister of testator’s wife who were alive at the time of testator’s death, and the appellants, as the distributees of such brothers, are entitled to take the shares of such one half of the remainder which were vested in such two brothers. (Bisson v. West Shore B. B. Go., 143 N. Y. 125; Boosa v. Harrington, 171 N. Y. 341; Hersee v. Simpson, 154 N. Y. 496; Matter of Bolton, 257 App. Div. 760, 282 N. Y. 728; Gonnelly v. O’Brien, 166 N. Y. 406; Matter of Gurlett, 166 Mise. 944; Moore v. Littel, 41 N. Y. 66; Eennessy v. Patterson, 85 N. Y. 91; Fulton Trust Go. v. Phillips, 218 N. Y. 573; Matter of Van Auken, 31 N. Y. S. 2d 897; Sage v. Wheeler, 3 App. Div. 38, 158 N. Y. 679; Matter of Ossman v. Von Boemer. 221 N. Y. 381; Matter of Tienken, 131 N. Y. 391.)

      Frank B. Abbott for Mary E. Wright, respondent.
    I. The question of the date of the vesting of the remainders is not before the Court of Appeals for review. (Kelsey v. Western, 2 N. Y. 500; Matter of Davis, 149 N. Y. 539; Wilson v. Mechanical Orguinette Go., 170 N. Y. 542.) II. The remainders vested upon the death of the life tenant, Annie Burk. (Matter of Martin, 255 N. Y. 248; Matter of Bostwick, 236 N. Y. 242; Matter of Baer, 147 N. Y. 348; Matter of Grane, 164 N. Y. 71; Matter of Pulis, 220 N. Y. 196; Matter of Koch, 282 N. Y. 462; Guarantee Trust Go. v. Miller, 112 N. J. Eq. 493.) III. Mary E. Wright is the nearest of kin of Annie Burk. (Matter of Tamar go, 220 N. Y. 225; Simpson v. Trust Co. of America, 59 Mise. 96, 129 App. Div. 200, 197 N. Y. 586; Herzog v. Title Guar. & Trust Go., 177 N. Y. 86; Haas v. Speenburgh, 122 Mise. 458, 212 App. Div. 844; Matter of Martin, 255 N. Y. 248.) IV. Canons of construction to which appeal is made are never used to force language out of a will. (Matter of Wheeler, 74 N. Y. S. 2d 230; Matter of Watson, 262 N. Y. 284.) V. “ Nearest of kin ” does not mean£ ‘ next of kin ’ ’. (Matter of Keogh, 126 App. Div. 285; Kello v. Kello, 127 Ya. 368, 11 A. L. R. 322.)

      W. B. Vander Voort for Patterson and others, respondents.
    I. It was error for the court below not to have found sufficient indication that testator meant to next of kin ” rather than only a surviving sister of his wife. (Matter of King, 200 N. Y. 189; Matter of Watson, 262 N. Y. 284; Matter of Martin, 255 N. Y. 248; Haas v. Speenburgh, 122 Mise. 458, 212 App. Div. 844; Ennis v. Pentz, 3 Bradf. 382; Matter of Pettit, 241 App. Div. 209; Matter of Makeever, 162 Mise. 281; Matter of Mildeberger, 122 Alise. 743.) II. The presumption that natural heirs were not intended to he disinherited should control in this ease. (Elnsley v. Young, 2 Myc. & K. 82; Withy v. Mangles, 10 Clark & F. 215, 8 Eng. Reprint 724; Hammond v. Myers, 292 Ill. 270, 11 A. L. R. 315; New York Life Ins. Trust Go. v. Winthrop, 237 N. Y. 93; Godfrey v. Epple, 100 Ohio St. 447, 11 A. L. R. 317; Kello v. Kello, 127 Ya. 368, 11 A. L. R. 322.) III. Distribution should he per stirpes. (New York Life Ins. & Trust Go. v. Winthrop, 237 N. Y. 93; Woodward v. James, 115 N. Y. 346; Matter of Nebe, 155 Mise. 392; Matter of Wheeler, Y. S. 2d 230; Ferrer v. Pyne, 81 N. Y. 281.) IY. Remainders did not vest on testator’s death; the gifts are to a class to he determined at the time of distribution. (Bisson v. West Shore B. B. Go., 143 N. Y. 125; Gilliam v. Guaranty Trust Go., 186 N. Y. 127; Matter of Bostwick, 236 N. Y. 242; Matter of Koch, 282 N. Y. 462; Matter of Nebe, 155 Mise. 392.)

      Albert W. Davis, special guardian, respondent.
    I. The Appellate Division should have considered the problem of when the remainders in this estate were vested at the same time that it determined the meaning of the words “ nearest of kin ” ás used in the testator’s will as the questions were closely interrelated and the interpretation of the same clause of the will was involved. (Matter of Winburn, 270 N. Y. 196; Matter of Martin, 255 N. Y. 248; Matter of Hall, 71 N. Y. S. 2d 825.) II. One half of the remainder vested in the brothers and sister of the testator’s wife, as well as the missing brother if they survived the testator, and if the. court finds that the estate vested at time of the death of testator then provision should he made for the missing brother or any of his possible, distributees. (Moore v. Littel, 41 N. Y. 66; Matter of Bolton, 257 App. Div. 760; Matter of Watson, 262 N. Y. 284; United States Trust Go. v. Taylor, 193 App. Div. 153, 232 N. Y. 609; Matter of Embree, 9 App. Div. 602, 154 N. Y. 778; Gilliam v. Guaranty Trust Co., 186 N. Y. 127; Mersereau v. Katz, 197 App. Div. 895; Paget v. Melcher, 26 App. Div.-12, 156 N. Y. 399; Matter of Baer, 147 N. Y. 348; Matter of Chalmers, 264 N. Y. 239.) III. The Appellate Division was correct in interpreting the expressions used in the will ‘ ‘ my nearest of kin ’ ’ and ‘ ‘ the nearest of kin of my wife, ’ ’ but that court should have by virtue of the early vesting rule determined that the nearest of kin were those - persons living at the date of the death of the testator and the date of the death of the life tenant. (Haas v. Speenburgh, 122 Mise. 458, 212 App. Div. 844; Matter of Martin, 135 Mise. 18, 255 N. Y. 248.)
   Dye, J.

Albert Burk died April 21, 1931, having made a will leaving his estate in trust for the life use and benefit of his wife. She died April 26, 1947. The substituted testamentary trustee has filed her petition to account and for a construction of the testator’s will to determine to whom and in what proportions the residue of the estate remaining in her hands is now distributable, the testator having provided, viz.: SecoNd : Upon the death of my wife, I order and direct my said executor to pay and distribute the one-half of all my said estate unto my nearest of kin in equal shares and to pay and distribute the other half of all my said estate unto the nearest of kin of my wife in equal shares.” (Emphasis supplied.) The parties to this appeal are the persons interested in the one half of the residue of the estate payable to the relatives of the life tenant. The distribution of the one-half share payable to the testator’s relatives is not controverted, they having previously agreed among themselves upon a satisfactory division. The Surrogate, without the aid of extrinsic evidence but relying solely on the testamentary language, has found and decreed that, in the absence of words of gift “ in prsesenti ” and the direction to the executor to pay and distribute, the remainder vested upon the death of the life tenant (Matter of Bostwick, 236 N. Y. 242). He also construed the phrase “ nearest of kin ” as equivalent to and synonymous with ‘ next of kin ’ in the legal sense and directed distribution “ per stirpes ” in accordance with the Decedent Estate Law applicable to intestacies.

The Appellate Division construed the words nearest of kin ” to mean “ nearest blood relation and modified the Surrogate’s decree directing payment to the life tenant’s sole surviving sister, Mary E. Wright, to the exclusion of all other parties who were next of kin in the legal sense, including Ella Brady, the spouse of her deceased brother Michael Brady (Decedent Estate Law, §§ 47-c, 83). It declined, however, to pass on when the remainder vested “ in the absence of an appeal from the decree ” (Wilson v. Mechanical Orguinette Co., 170 N. Y. 542; Matter of Davis, 149 N. Y. 539; Kelsey v. Western, 2 N. Y. 500). The notice of appeal to the Appellate Division filed by Mary E. Wright contained a statement limiting the appeal from “ so much and such part of the decree * * * as adjudges that the term ‘ nearest of kin ’ in the will of Albert Burk means ‘ next of kin ’ and * # to whom and in. what proportions the estate ⅜ ⅝ ⅝ is now payable.” The cases relied on are proper authority where separable or severable issues are disposed of in a single judgment or order from which an appeal is taken from a part only. Under such circumstance the review is confined to the part appealed from. In this appeal the issue involves the testator’s intent as expressed by the language used in his will. Every element necessary to the ascertainment of such intention in order to accomplish distribution of the residue to the persons and in such proportion as intended is open to review, including the time when the remainder vested. We may not be concluded in a proceeding of this sort because the appellant in her notice of appeal to the Appellate Division sought to restrict the review by stating a limitation, nor is the situation changed by the circumstance that the distributees of James and Michael Brady, deceased brothers of the life tenant and parties to the proceeding, did not appeal from the Surrogate’s decree to the Appellate Division, or that the distributees of Philip Brady, a deceased brother, and the special guardian of the missing brother, John Brady, who had been declared judicially dead, did not appeal from the modification in the Appellate Division to this court, so as to prevent their interest from being considered here. All parties to the proceeding are deemed parties to this appeal (Surrogate’s Ct. Act, § 289; Civ. Prac. Act, § 193, subd. 1; § 584; Matter of Winburn, 270 N.Y. 196).

The testator directed Ms executor'after the death of the life tenant to pay and distribute. one half his estate “unto the nearest of Mn of my wife ” thereby indicating a gift to a class which could not very well be ascertained until the death of the wife. It was not until then that the remainder vested (Matter of Bostwick, 236 N. Y. 242, supra; Matter of Koch, 282 N. Y. 462; Matter of Pulis, 220 N. Y. 196; Real Property Law, § 40). Members of the class at the time of distribution take (Gilliam v. Guaranty Trust Co., 186 N. Y. 127). The testator designated the class to whom he gave his estate as the “ nearest of kin of my wife in equal shares.”. Ordinarily the intended meaning of such a simple word as ‘ ‘ near-, est ” in everyday usage creates no very great problem as it is commonly used as synonymous with “ next ” (Webster’s Dictionary) and has been given the same meaning when used in connection with kin and relations (Oxford Dictionary; Encyclopedia Britannica), but we find on an examination of the legal authorities that there is a division of opinion as to its meaning when used in a will. The difficulty is occasioned, no doubt, by the circumstance that in England and many other States wMch follow the English rule, the term ‘ ‘ next of kin ’ ’ when used in a will is construed as a direction to recognize consanguinity, while in New York State the words “ next of kin ” have long been regarded as a technical phrase calling for distribution in accordance with the statute (Slosson v. Lynch, 43 Barb. 147 [1864]).

The Appellate Division interpreted the phrase “ nearest of kin ” as indicating intent to direct distribution to nearest in consanguinity, relying on Matter of Martin (255 N. Y. 248, 251). There we construed the words “ ‘ my nearest relatives ’ ” to mean those nearest in degree of consanguinity, citing as authority Ennis v. Pentz (3 Bradf. 382); Haas v. Speenburgh (122 Misc. 458), and Matter of Brown (133 Misc. 519). In the Ennis case (supra, pp. 385-386) the testator gave the residue of the estate unto “ ‘ the two nearest female relatives or connections ’ of his deceased mother ’ ’ which was construed as intending those ‘ ‘ nearest in degree — counting from the specified stock ” or to put it more simply ‘ nearest by blood ’ ’ thus excluding Mrs. Ennis, the widow of a grandnephew. In the case (supra, p. 460) the phrase “ to be divided equally between my nearest kin ” was construed to mean “ nearest by blood The Surrogate relied on several ont-of-State authorities which had construed words such as “ nearest relatives ” (Matter of Altdorfer, 225 Pa. 136); “ nearest of kin ” (Clark v. Mack, 161 Mich. 545; “ nearest akin ” (Hammond v. Myers, 292 Ill. 270); “ nearest relations ” (Locke v. Locke, 45 N. J. Eq. 97); “ nearest blood connection ” (Jones v. Parsons, 182 Iowa 1377), as nearest in degree of blood. In the Brown case (supra, p. 526) the Surrogate construed the expression “ to nearest relatives then living ” as meaning “ living at the death of testator’s widow ” and that the words “ nearest relatives ” meant those in the nearest degree of consanguinity.

The rule of consanguinity followed by the English authorities and many of our sister States was rejected as inconsistent in New York as far hack as Slosson v. Lynch (43 Barb. 147 [1864], supra), the principle of which was reaffirmed in New York Life Ins. & Trust Co. v. Winthrop (237 N. Y. 93), saying in substance that when the testator uses the words “ next of kin ” a division according to the statute is.more likely than any other to correspond with his wish and should govern when the testator’s intention is in doubt. The similarity in usage of the words “ nearest ” and “ next ” suggests that the testator here used the word nearest ” in accordance with New York State usage and was not aware that in so doing he brought into play an English rule of inheritance following an historical concept of consanguinity contrary to the public policy of New York or vice versa.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division to the appellants, payable out of the estate.

LoughraN, Ch.' J., Lewis, CoNway, DesmoNd and Fuld, JJ., concur.

Order reversed, etc.


author: LoughraN, Ch. J.

text:
    In the Matter of the Appointment of a Committee of the Person and Property of Albrecht Kalthoff, an Alleged Incompetent Person. Edith Miller et al., Appellants; Joseph P. Kelly et al., Respondents.
    Argued January 6, 1949;
    decided March 3, 1949.

      Morris Orenstein for appellants.
    I. The appointment of two strangers, respondents Kelly and Fitzsimmons, as committee, was unauthorized and erroneous. (Matter of Lamoree, 32 Barb. 122; Matter of Rothman, 263 N. Y. 31; Matter of Cooper, 105 App. Div. 449; Matter of Diets, 247 App. Div. 366; Matter of More, 268 App. Div. 1055; Matter of Sariyan, 183 Mise. 701.) II. The allowances were improperly granted and are excessive. {Randall v. Packard, 142 N. Y. 47.)

      Joseph V. McKee and Louis A. Russo for Joseph P. Kelly
    and others, respondents.
    I. The appointment of respondents Kelly and Fitzsimmons as committee of the person and property of the incompetent was a proper exercise of the court’s discretion. {Matter of Rothman, 263 N. Y. 31; Matter of Foster, 230 App. Div. 730, 254 N. Y. 614; Matter of Owens, Ml How. Prae. 150; Matter of Pfleghar, 271 App. Div. 880.) II. The allowance to Joseph V. McKee, attorney for the petitioner, was properly granted. {Matter of Potts, 213 App. Div. 59, 241 N. Y. 593.)

      Joseph J. Kosinn, special guardian, respondent in person.
    I. In view of the dissension between the members of the incompetent’s family, the court was authorized, in the exercise of its sound discretion, to select the present committee. (Matter of Quinby, 175 App. Div. 898.) II. The special guardian’s allowance as well as the other allowances were made by the court based on full affidavits of services. (Matter of Gurley, 161 Mise. 391; Matter of Mackenzie, 155 Mise. 822; Matter of Potts, 123 Mise. 346, 213 App. Div. 59, 241 N. Y. 593; Matter of Bielby, 91 Mise. 353; Matter of Ludwig, 112 Mise. 676; Matter of Milde-berger, 122 Mise. 743, 212 App. Div. 727, 241 N. Y. 528.)

      Alfred J. Callahan, commissioner, respondent in person.
    The statute places the primary responsibility for the payment of the commissioner’s compensation upon the petitioner personally. (Civ. Prac. Act, §§ 1369, 1373; Matter of Hammond, 125 App. Div. 865; Musco v. United Bur. Co., 196 N. Y. 459.)
   LoughraN, Ch. J.

This proceeding under article 81 of the Civil Practice Act was brought in May, 1948, for the appointment of a committee of the person and property of Albrecht Kalthoff. His then next of kin were four adult daughters. One of them made the petition herein and the others, waiving presentation thereof, consented that a committee be appointed. Special Term first appointed a special guardian for Mr. Kalthoff and also a commissioner who was directed to conduct an inquiry in respect of (1) the matters set forth in the petition, (2) the value of Mr. Kalthoff’s property, and (3) the amount of his income.

A sheriff’s jury procured by the commissioner found Mr. Kalthoff to be an incompetent person whose property consisted of $700,000 in cash and securities which yielded an annual income of $20,000. These findings were confirmed by the Special Term in an order whereby Joseph P. Kelly and Robert J. Fitzsimmons — strangers to Mr. Kalthoff and his family — were appointed as committee of his person and property. The Appellate Division affirmed on condition that Kelly and Fitz-simmons stipulate in writing to accept a single set of commissions as sole remuneration for their services and they did so stipulate without delay. Before the case was decided by the Appellate Division, one of Mr. daughters died. His three other daughters are the appellants here.

The petitioner-appellant asked the Special Term to name as committee of her father a lawyer who was related to her. Her three sisters requested appointment of another lawyer who had represented their father for many years. Ultimately all four daughters agreed that both of these lawyers should he the committee, but at that stage of the controversy the order of Special Term had already been entered.

Ordinarily the unanimous wish of the family of an incompetent person should he followed in appointing a committee for him (Matter of Rothman, 263 N. Y. 31). There is not, however, and with us there never has been a positive rule of law to that effect nor any absolute subordination of strangers to relatives .as candidates for the office of committee. Indeed the court in each case is to give primary' consideration to the comfort and welfare of without overlooking the possibility of his recovering from his incapacity. (See Matter of Page, 7 Daly 155; Matter of Andrews, 125 App. Div. 457, 465-466; Matter of Shea, 296 N. Y. 551.) Doubtless a flat rejection of a nominee of all the next of kin followed by appointment of an outsider of merely average ability could in some circumstances be so manifest an abuse of discretion as to be wrong in law. But no claim of error of that kind is made by the appellants here. Their main point is stated in these words: Since the appellants had not consented to the appointment of one particular person and made two separate nominations, there should have been an order of reference, so that proper and thorough inquiry could have been had as to the qualifications of * ⅜ ⅞ the two persons respectively nominated by them. ’ ’

This contention cannot be sustained by us. Whether a referee should be called upon to settle a family disunion of the sort that occurred in the present case is a matter of the practice of the court of original jurisdiction with which we have nothing to do, for no statute makes a reference necessary in such circumstances (see Moore v. Shaw, 77 N. Y. 512; Bankers Trust Co. v. 1 E. 88th St. Corp., 283 N. Y. 369, 373; New York Post Corp. v. Kelley, 296 N. Y. 178, 189).

Nor can we give effect to objections that are urged by the appellants against allowances awarded by the Appellate Division to the special guardian and to counsel for the petitioner-appellant. These objections, which are addressed merely to the dimensions of the allotted sums, raise no question of law. (See Matter of Wade, 296 N. Y. 244, 248.) Bnt the case is otherwise in respect of the allowance made to the commissioner who managed the inquisition that was held by the sheriff’s jury. Since award of that allowance ignored rule 288 of the Rules of Civil Practice, it must be annulled and this proceeding must be remitted to Special Term for the making of an allowance to the commissioner in conformity with the rule.

The order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate.

Lewis, DesmoND, Dye and Ftjld, JJ.,‘ concur.

Ordered accordingly.