text:
    In the Matter of Aluminum Company of America, Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Appellants, and Niagara Falls Power Company, Respondent.
    Argued October 16, 1940;
    reargued June 1, 1942;
    decided December 10, 1942.

      Gay H. Brown, Laurence J. Olmstead, Sherman C. Ward and Martin V. Callagy for Public Service Commission, appellant.
    The Public Service Commission has jurisdiction over the rates charged by the power company to the aluminum company. (People ex rel. Horton v. Prendergast, 220 App. Div. 351; Niagara Falls Power Co. v. Water Power & Control Comm., 267 N. Y. 265; Squaw Island F. T. Co. v. City of Buffalo, 273 N. Y. 119; Commonwealth v. Alger, 7 Cush. 53; Appleby v. City of New York, 235 N. Y. 351; People ex rel. Niagara Falls Hydraulic Power & Mfg. Co. v. Smith, 70 App. Div. 543; United States Light & Heat Corp. v. Niagara Falls Gas & Electric Co., 47 Fed. Rep. [2d] 567; 283 U. S. 864; Utah Power & Light Co. v. Pfost, 286 U. S. 165; People ex rel. B. E. M. Co. v. Wemple, 129 N. Y. 543.) The aluminum company does not possess an easement or property right in the power company’s lands, water rights and generating equipment. (Nellis v. Munson, 108 N. Y. 453; Hess v. Roberts, 124 App. Div. 328; Lynch v. Murphy Hotel Co., 130 App. Div. 691; United Merchants Realty & Imp. Co. v. New York Hippodrome, 133 App. Div. 582; Market Street Ry. Co. v. Pacific Gas & Electric Co., 6 Fed. Rep. [2d] 633; Matter of Althause, 63 App. Div. 252.)

      Charles E. Hughes, Jr., Augustus L. Richards, Harold L. Smith and Rowland Stebbins, Jr., for Aluminum Company of America, respondent.
    The rights of the aluminum company in the power house and the water power under the lease were vested interests in real property. (Brooklyn Dock & Terminal Co. v. Bahrenburg, 135 App. Div. 799; 202 N. Y. 521; Morehouse v. Woodruff, 218 N. Y. 494; Stebbins v. Frisbie & Stansfield Knitting Co., 201 App. Div. 477; Saratoga State Waters Corp. v. Pratt, 227 N. Y. 429; Welsh v. Taylor, 134 N. Y. 450; Presby v. Benjamin, 169 N. Y. 377; Mudge v. Salisbury, 110 N. Y. 413; Carthage T. P. Mills v. Carthage, 200 N. Y. 1; Holyoke Water Power Co. v. Whiting & Co., 276 Mass. 528; Miller v. Clary, 210 N. Y. 127; Hottell & Colorado Milling & Elevator Co. v. Farmers’ Protective Assn., 25 Col. 67.) The Commission had no jurisdiction to make the order under review. (City of New York v. Interborough R. T. Co., 257 N. Y. 20; Matter of Village of Mamaroneck v. Public Service Comm., 208 App. Div. 330; 238 N. Y. 588; Orinoco Realty Co. v. Bandler, 233 N. Y. 24; United,

      States v. Delaware & Hudson Co., 213 U. S. 366; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531; Holyoke Water Power Co. v. Whiting & Co., 276 Mass. 528; Holyoke Water Power Co. v. American Writing Paper Co., 90 Fed. Rep. [2d] 509; 304 U. S. 574; South Carolina Power Co. v. South Carolina Tax Comm., 52 Fed. Rep. [2d] 515; 286 U. S. 525; Sweet v. City of Syracuse, 129 N. Y. 316; Niagara Falls Hydraulic Power & Mfg. Co. v. Smith, 70 App. Div. 543; 175 N. Y. 469; Danes v. State, 219 N. Y. 67; United Parer Board Co. v. Iroquois Pulp & Paper Co., 226 N. Y. 38; Little Falls Fibre Co. v. Henry Ford & Son, Inc., 249 N. Y. 495; 280 U. S. 369.)

      Randall J. LeBoeuf, Jr., Warren Tubbs and Chauncey P. Williams, Jr., for Niagara Falls Power Company, respondent.
   Per Curiam.

Section 621 of the Conservation Law (Cons Laws, ch. 65) contains two separate grants of jurisdiction to the Public Service Commission. The first such grant empowers the Commission to fix the rates to be charged for power by the holder of a license issued pursuant to other sections of article 14 of the Conservation Law. Since The Niagara Falls Power Company is not, at least for present purposes, a “ licensee ” under that article (see Water Power & Control Comm. v. Niagara Falls Power Co., 289 N. Y. 353, decided herewith) the Public Service Commission must rely — for authority to fix the rates to be charged by the Power Company to the Aluminiun Company — on the second grant of jurisdiction to the Commission contained in section 621 of the Conservation Law. That second grant confers jurisdiction to fix rates to be charged by any person, firm or corporation for furnishing power generated wholly or partly by the use of water in which the state has a proprietary right or interest.” The Aluminum Company, it plainly appears, is not a customer purchasing from the Power Company electrical power produced by the latter, but is a lessee from the Power Company of real property, with appurtenant and expressly granted rights in the lessee to take mechanical power from the hydraulic equipment of the Power Company. We hold that neither section 621 of the Conservation Law nor article 4 of the Public Service Law (Cons. Laws, ch. 48) shows any legislative intent to cover a situation where the power is produced pursuant to a lease agreement and under the special circumstances of the case at bar. It is thus unnecessary to consider or define the meaning of the above-quoted language of section 621: water in which the state has a proprietary right or interest.”

The order of the Appellate Division should be affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Mitchell Miles, Appellant.
    Argued October 22, 1942;
    decided December 11, 1942.

      William B. Mahoney for appellant.
    The trial court erred in granting the motion of the District Attorney to add a'fifth count to the indictment: counsel cannot waive constitutional rights of defendant. (People v. Van Every, 222 N. Y. 74; People v. Johnson, 104 N. Y. 213; Matter of Bain, 121 U. S. 1; People v. Bromwich, 200 N. Y. 385; People v. Geyer, 196 N. Y. 364; Concemi v. People, 18 N. Y. 128; People v. Guidici, 100 N. Y. 503.)

      Leo J. Hagerty, District Attorney (Maurice Frey of counsel), for respondent.
    The addition of the new count was proper under the circumstances. (People ex rel. Prince v. Brophy, 273 N. Y. 90.)
   Lewis, J.

The appellant is one of four defendants who were indicted by the grand jury of Erie county on four counts, the first three of which charged each defendant with having bribed three police officers on, May 9, 1938. These acts, it was charged, constituted part of a common scheme and plan by the defendants to contrive, draw and assist in a lottery in violation of section 1372 of the Penal Law. The fourth count charged each of the four defendants with contriving, drawing and assisting in a lottery on or about May 3, 1938, in violation of sections 1370 and 1372 of the Penal Law.

At the close of the People’s case, the District Attorney moved, under section 295-j of the Code of Criminal Procedure, to amend the indictment to conform to the proof by adding thereto a new or fifth count. Counsel for the appellant interposed no objection and suggested no doubt either as to the power of the court to grant the motion or the wisdom of the exercise of such power. On the contrary he consented to such amendment and thereupon the trial court granted the District Attorney’s motion and ordered the fifth count added to the indictment. It is important to note that the added fifth count, although following generally the language of the fourth count, charged the defendants with having contrived, drawn and assisted in a lottery on May 9, 1938 — a date six days subsequent to the date of the crime charged in the fourth count as returned by the grand jury.

The three defendants other than the appellant were acquitted on all five counts. The appellant was acquitted on the original first four counts but was found guilty on the added fifth count. The judgment convicting the appellant was affirmed unanimously by the Appellate Division and is here by permission of a member of this court.

We think that, in the circumstances disclosed by the record, the fifth count of the indictment added during the trial was void and that the trial court was thus rendered powerless to proceed to a verdict upon that count which embodied the sole charge upon which the jury returned a finding of the appellant’s guilt.

It is a fundamental principle of our government that “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, * * (U. S. Const., Fifth Amend.; and see N. Y. Const., article I, § 6.) By section 293 of the Code of Criminal Procedure the Legislature has authorized an amendment of an indictment (not a new count) when, upon the trial, there develops a variance between the allegations of the indictment and the proof in respect to time, or in the name or description of a place or thing. In the present case, however, the indictment was amended and the fifth count was added under the purported authority of section 295-j of the Code of Criminal Procedure which provides in part: “ § 295-j. When amendment allowed. Upon the trial of an indictment, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable, by adding thereto new counts, where it is made to appear that the crimes to be charged therein relate to the transaction upon which the defendant stands indicted.”

We are told by the District Attorney that by enacting section 295-j, id., it was not the intent of the Legislature to permit a trial jury to find the defendant guilty of the crimes already charged in the indictment as well as the crime charged under the new or additional count. It is said that the provisions of section 295-j are limited in their effect by permitting the addition of a new count only as an alternative count in the indictment.” If such was the Legislature’s intent, as to which we make no determination, the record at hand affords conclusive proof that in this instance the new count, added by the amendment during the trial, was in no sense an alternative count and was not so considered on the trial.

In the charge to the jury and later when the jury was polled to ascertain its verdict, the added fifth count was dealt with, not as an alternative count ” but as an accusation of criminal acts which were independent of those presented by the grand jury under the first four counts. The change in the grand jury’s indictment wrought by the amendment on the trial accuséd the appellant of a crime separately identified by the court for the jury’s consideration as being independent of the remaining four counts. The date of the crime with which the appellant was charged by the added fifth count differed from the date of the crime charged in the fourth. As treated upon the trial and as considered by the jury such a change from the accusation by the grand jury did not relate to the form of the charge, nor to an inconsequential fact in the description of the offense. The change went to the substance of the accusation and was so treated at the trial. As such it was not an accusation by a grand jury as required by the constitutional provision quoted above. Nor did it, in our opinion, relate to the transactions upon which the defendant stood indicted, within the specific requirements of section 295-j of the Code of Criminal Procedure. “ * * * if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment" as thus changed, the restriction which the^Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists. * * *” (Matter of Bain, 121 U. S. 1, 13).

Nor did the consent by the appellant’s trial counsel serve as a waiver of the appellant’s rights and thus deprive him of his right thereafter to challenge the practice which had led to bis conviction — though but for such consent the court might well have refused to adopt that practice and at the trial might have vindicated the right of the appellant which has since been asserted only in the appellate courts. “ * * * waiver is not permitted where a question of jurisdiction or fundameiftal rights is involved and public injury would result * * * In criminal prosecutions are involved public wrongs and public rights. The State has an interest in the lives and liberties of all within its boundaries even though some may be criminal. Accordingly, prosecutions must be conducted in substance and without essential change as the Constitution commands. A conviction otherwise obtained is a nullity.” (People ex rel. Battista v. Christian, 249 N. Y. 314, 318, 319.)

We have not overlooked the rule of People ex rel. Prince v. Brophy (273 N. Y. 90), upon which the District Attorney relies. There it could fairly be said that a new count, which was suggested (p. 99) as one which might have been added by an amendment, came within the provisions of section 295-j, id., as being related to the transaction upon which the defendant stands indicted.”

Upon the present record we cannot say that, by the additional fifth count formulated on the trial and which ultimately became the basis for the trial jury’s finding of guilt, the appellant was not “ thereby prejudiced in his defense on the merits ” (§ 295-j, id). The indictment thus amended upon which the appellant was convicted was no longer an accusation by a grand jury.

The judgments should be reversed and the indictment dismissed.

Lehman, Ch. J., Loughran, Finch, Rippey and C.onway, JJ., concur; Desmond, J., taking no part.

Judgments reversed, etc.


author: Rippey, J. Finch, J.

text:
    Charles H. Coley, Respondent, v. Frank L. Cohen, Appellant.
    Argued, March 9, 1942;
    reargued December 8, 1942;
    decided December 11, 1942.

      Philip Halpern, Milton H. Friedman, Emil L. Cohen and Isador Setel for appellant.
    The contract was not intended to create liability on the part of the contractor for damage for which liability would not otherwise have existed on the part of anyone. (Booth
      V. R. W. & O. T. R. R. Co., 140 N, Y. 267; Holland House Co. v. Baird, 169 N. Y. 136; French v. Vix, 143 N. Y. 90; Dudar v. Milef Realty Co., 258 N. Y. 415; United States v. Massachusetts Bonding & Ins. Co., 18 Fed. Rep. [2d] 203; Corrigan Transit Co. v. Sanitary District of Chicago, 137 Fed. Rep. 851; Coster v. Mayor, 43 N. Y. 399; United States v. Rifle Co., 247 Fed. Rep. 374; Askey & Hager, Inc., v. State, 240 App. Div. 451; 266 N. Y. 587; French v. Vix, 143 N. Y. 90.) The parol evidence offered by the appellant was erroneously excluded by the trial court. (Mascioni v. Miller, Inc., 261 N. Y. 1; O’Neil Supply Co. v. Petroleum H. & P. Co., 280 N. Y. 50; Rasmussen v. New York Life Ins. Co., 267 N. Y. 129.)

      Charles J. McDonough for respondent.
    The contract was intended to, and did impose on the contractor absolute liability for all damages to the property of third party beneficiaries caused by the blasting, regardless of whether or not the contractor was negligent. (Trumpbour v. Johnson, 250 App. Div. 856; 277 N. Y. 609; Wilson v. Oliver Costich Co., 231 App. Div. 346; 256 N. Y. 629; Rigney v. N. Y. C. & H. R. R. R. Co., 217 N. Y. 31; Ward v. Whitney, 8 N. Y. 442; Fleischman v. Furgueson, 223 N. Y. 235; Browne v. Patterson, 165 N. Y. 460; Smyth v. City of New York, 203 N. Y. 106; Hale v. Ripton, 234 N. Y. 631; Rigney v. N. Y. C. & H. R. R. Co., 217 N. Y. 31; Schnaier v. Bradley Contracting Co., 181 App. Div. 538; Maloney v. Iroquois Brewing Co., 173 N. Y. 303; Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519.) There is no ambiguity in the contract. Parol evidence was incompetent. (Marble v. Whitney, 28 N. Y. 297; Marsh v. McNair, 48 Hun, 117; Fox Film Corp. v. Springer, 273 N. Y. 434; Giles v. Comstock, 4 N. Y. 270; Collender v. Dinsmore, 55 N. Y. 200; Matter of Loew’s Buffalo Theaters, Inc., 233 N. Y. 495; Petrie v. Trustees of Hamilton College, 158 N. Y. 458; County Trust Co. v. Mara, 242 App. Div. 206; 266 N. Y. 540.)
   Rippey, J.

On July 3, 1936, the defendant Frank L. Cohen entered into a written contract with the Buffalo Sewer Authority, a body politic created by virtue of chapter 349 of the Laws of 1935, for the construction in West Delevan avenue, between Niagara street and Elmwood avenue, of so-called Division J-Western Section of a storm water relief drain for the Bird Avenue Sewer District, the work to be performed and materials to be furnished according to specifications attached to and made a part of the contract.

This action was commenced by a property owner whose property was damaged due to concussions from blasting operations during the construction of the sewer. The complaint set up two causes of action — one based upon negligence of the contractor in connection with the blasting operations and the second based upon a clause in the contract alleged to have been made for the benefit of third persons, including this plaintiff, which was alleged to have imposed upon the contractor an absolute obligation to respond in damages for any injury to property caused by blasting operations in connection with the work. The case was neither tried nor submitted on the theory of the first cause of action but solely on the theory advanced in the second cause of action without evidence of fault on the part of the contractor. Plaintiff recovered at Trial Term and the judgment based upon the verdict of the jury in his favor was unanimously affirmed by the Appellate Division which denied an application of the defendant for leave to appeal to this court. The case reaches us by our permission.

Article 1(a) of the contract provides in part: “ The plans, specifications, advertisements, information for bidders, and accepted proposal, shall form a part of this contract and the provisions thereof shall be as binding upon the parties hereto as if they were herein fully set forth. * * * in case of any conflict or inconsistency between the provisions of this contract and those of the specifications, the provisions of this contract shall govern.”

Article X, relating to Contractor’s Responsibility,” provides that the contractor shall build, construct, finish and fully complete the whole of the specified work in the manner described and shown in the contract, drawings and specifications and in accordance with such further details and instructions as the engineer may from time to time furnish or issue for the purpose of insuring the thorough completion of the work in the most efficient manner. In that article, the contract continues: The Contractor will indemnify and save harmless the City of Buffalo and the Authority from all claims, suits or actions and damages or costs of every name and description to which the City of Buffalo and/or the Authority may be subjected or put by reason of injury to the person or property of another resulting from negligence or carelessness on the part of the Contractor, his servants or subcontractors in the delivery of materials and suppliés, or by or on account of any act or omission of his servants, agents, or subcontractors, * * That clause imposes liability on the contractor to indemnify the Authority and the city of Buffalo from all claims, suits or actions, damages or costs to which the Authority or the city might be subjected for injury to the person or property of another resulting from negligence or carelessness on the part of the contractor or from any act or omission of his servants, etc.

In subdivision 1.02 of part II of the specifications two separate and independent provisions are further made for the contractor’s responsibility. The first paragraph reads as follows: “ The Contractor in accepting this contract agrees to accept full responsibility for all damages and claims and for the defense of all actions against the Authority or City of Buffalo arising from any excavation made in connection with the work done under these specifications.” It is clear that that provision aims to indemnify the Authority and the city of Buffalo for damages or claims and for the defense of actions against them arising from any excavation work in connection with the contract. The clause is not inconsistent with the clause above quoted from the contract itself. It merely is more general in terms as to liability arising from excavation work than the contract clause and does not limit indemnity to possible recovery on account of the negligent acts or omissions of the contractor, his agents, servants or subcontractors, as does the clause in the contract proper. The contract provides for blasting operations. In connection with such operations, the second provision of subdivision 1.02 of the specifications reads as follows: All blasting necessary on this contract shall be done with the express provision that the Contractor shall be and is hereunder responsible for any and all damages and claims arising from such blasting or by accidental explosions, and for the defense of all actions arising from such causes.” It is under the last quoted provision of the contract that plaintiff has recovered. The claim of the defendant that the last above-mentioned provision must be construed, in the light of the contract as a whole, to protect only the city and the Sewer Authority against suits, claims or ¡.damages arising out of blasting operations cannot be sustained. On the contrary, it deals additionally with an obligation not otherwise provided for in the contract whereby the city and the Authority undertook to provide protection to third persons for personal injury and property damage arising through blasting operations where no such obligation would otherwise exist.

A reading of the contract as a whole indicates that the parties intended to and did separately provide (1) for the protection of the city and the Authority against suits, claims and damages which might arise out of negligent acts and negligent omissions of duty of the contractor or acts of his agents, servants or subcontractors in connection with the prosecution of the work, (2) for the protection of the city and the Authority from liability arising from the excavation work whether involving negligence or not, and (3) for protection of third persons against damages arising out of blasting operations and accidental explosions regardless of whether liability therefor would ordinarily exist.

The paragraph upon which reliance for recovery is based is not inconsistent with the general indemnity clause of the contract proper or with the indemnity clause relating to excavation work inserted for the benefit of the city and the Authority but is separate and distinct from those clauses and with no direct and evident contextual connection. The paragraph was unnecessary if it were intended to be limited solely to indemnity of the city and the Authority since such indemnity was separately treated and fully provided for elsewhere in the contract. By giving the words of the clause their obvious and natural meaning, violence is not thereby done to the intent of the parties expressed elsewhere in the contract.

Neither the city nor the Authority would be liable for damages to nearby property owners caused by blasting operations whether due to the negligence of the contractor or whether there was a trespass (Pack v. Mayor, 8 N. Y. 222; Herrington v. Village of Lansingburgh, 110 N. Y. 145; Smyth v. City of New York, 203 N. Y. 106), at least in the absence of evidence which does not appear in this case that the contractor engaged was incompetent and known by them to be incompetent when engaged. “ * * * contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms.” (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36, 41.) When a technical trespass arises from blasting operations, damages may be recovered from the person responsible for injury to person or property without proof of negligence. (Hay v. Cohoes Co., 2 N. Y. 159; Sullivan v. Dunham, 161 N. Y. 290.) Otherwise the law provides no remedy for such injury in the absence of proof of lack of due care on the part of the contractor. (Booth v. Rome, Watertown & O. T. R. R. Co., 140 N. Y. 267; Holland House Co. v. Baird, 169 N. Y. 136.) Blasting is one of the operations provided for in the contract. The term accidental explosion ” in the clause under consideration indicates an intent to cover every situation as a result of which damage is done. As used in the contract that expression is intended to include unavoidable accidental explosions for which the contractor ordinarily would not be hable. Although under Article X (the indemnity clause), the Authority is given the right to retain money until all suits or claims for damages shall have been settled or otherwise disposed of and evidence to that effect furnished,” Article XVIII also provides for the withholding of payment “ (c) to protect the Authority and the city of Buffalo from loss due to injury to persons or damage to the work or property of * * * others caused by the act or neglect of the contractor or of any of his subcontractors.” The contractor is required to procure and continue during the life of the contract public liability and property damage insurance sufficient not only to protect the city and the Authority but also to protect him and any subcontractor from claims for damages for personal injury, including wrongful death, and claims for property damage which may arise from operations under the contract whether such operations are conducted by himself or by a subcontractor or by anyone directly or indirectly employed by either. Those clauses were designed to be broad enough to provide protection to the contractor and to the city and to the Authority severally as against claims, suits and damages arising from injury to nearby property from blasting operations although no liability to third persons for such injury would ordinarily exist.

We conclude, therefore, that, not only by the express wording of the provision of the contract upon which plaintiff relies for recovery but also by the clear intent of the parties as indicated by an examination of the contract-taken as a whole, the clause dealt with an independent subject and created an obligation on the contractor in favor of third parties to respond to them for damages to their property in connection with blasting operations although no liability on the part of the contractor to them would otherwise exist. Nothing novel appears in the language of the clause and the provision is not unusual in contracts for public improvements. Of similar wording and purpose are commonly found similar clauses in present day public improvement contracts without providing indemnity of the principal or requiring negligence of the contractor as a necessary basis for recovery. In the public interest it was competent for the parties to so contract (Rigney v. N. Y. C. & H. R. R. R. Co., 217 N. Y. 31) and when such a provision is found a third party beneficiary may maintain an action on the agreement. (Coster v. Mayor, 43 N. Y. 399; Wilson v. Costich Co., 256 N. Y. 629; Trumpbour v. Johnson Corp., 277 N. Y. 609.)

The judgment appealed from should be affirmed, with costs.

Finch, J.

(dissenting). This is an action by plaintiff to recover for damages resulting from concussion and vibrations produced by blasting operations carried on without fault by the defendant contractor. Plaintiff owned premises near West Delavan avenue in the city of Buffalo along which the contractor was engaged in a sewer construction job under a contract with the Buffalo Sewer Authority. Plaintiff’s premises were damaged as the result of concussion and vibrations produced by blasting operations solely as an unavoidable consequence of the proper performance of this necessary public work by this defendant contractor.

Plaintiff originally brought suit upon two causes of action, the first based upon negligence and the second upon a claim that defendant’s contract with the Sewer Authority imposed an obligation to pay for any damage due to blasting without regard to fault. Pursuant to stipulation the two causes of action were severed and only the cause of action in contract was tried, the cause of action in negligence awaiting the disposition of the cause at bar.

It is the contention of plaintiff that under the terms of the contract between the contractor and the Sewer Authority, the contractor assumed an absolute liability with respect to all damages resulting from blasting operations. Defendant-appellant, on the other hand, contends that the contractor’s • liability under the contract with reference to blasting and excavating is limited to indemnification of the Sewer Authority and the city of Buffalo.

At the trial evidence was introduced solely as to causation and amount of damage because the trial court held, in accordance with a prior decision of the Appellate Division upon motion to dismiss, that defendant was hable under the contract without regard to negligence. The trial court then submitted to the jury only these two questions of causation and damages, and the jury returned a verdict in favor of plaintiff in the amount of $2,750.

The main question to be decided upon this'appeal is the construction of the contract made between this defendant and the Buffalo Sewer Authority. Upon the trial, a subsidiary question arose because of the exclusion by the trial court of parole evidence offered by defendant as bearing upon the intention of the parties to the contract. In view of the decision reached herein, the contention of defendant that this parole evidence is admissible becomes immaterial.

We pass at once to a consideration of the contract and the specifications. The contract is voluminous, running over one hundred legal size pages of single space typing. Appended to the contract are specifications numbered from section 1 to section 8.06. The provisions upon which plaintiff bases his theory of absolute liability, do not appear in the contract itself.. So far as appears from the provisions of the contract, responsibility of the contractor is expressly limited to indemnifying and saving harmless from legal damage the city of Buffalo and the Sewer Authority. This obligation is set out in article X entitled “ Contractor’s Responsibility,” wherein it is provided that: “ The Contractor will indemnify and save harmless the City of Buffalo and the Authority from all claims, suits or actions and damages or costs of every name and description to which the City of Buffalo and/or the Authority may be subjected or put by reason of injury to the person or property of another resulting from negligence or carelessness on the part of the Contractor * * * and the whole or so much of the moneys due or to grow due under this agreement as shall or may be considered necessary by the Authority may, at its option, be retained by the Authority until all * * * claims for damages shall have been * * * disposed of and evidence to that effect furnished to its satisfaction.”

The provision relied upon by plaintiff appears, as noted, only in the specifications, being section 1.02 of part II of the specifications. Part II bears the general heading Methods and Materials of Construction.” Section 1.02 appears under the sub-heading “ Excavation in Tunnel,” and reads as follows:

“ 1.02. Contractor’s Responsibility. The Contractor in accepting this contract agrees to accept full responsibility for all damages and claims and for the defense of all actions against the Authority or City of Buffalo arising from any excavation made in connection with the work done under these specifications.

“ All blasting necessary on this contract shall be done with the express provision that the Contractor shall be and is hereunder responsible for any and all damages and claims arising from such blasting or by accidental explosions, and for the defense of all actions arising from such causes.”

Plaintiff urges that by means of these two paragraphs quoted above from the specifications there was created a new and absolute liability upon the contractor with reference to excavation ■ and blasting work, and that this liability runs in favor of any and all persons who may suffer damage therefrom. It is submitted, however, that this contract and specifications are not capable of such a construction.

Article X of the contract is clearly a provision of indemnity whereby the contractor agrees to save harmless the city of Buffalo and the Sewer Authority from claims arising on account of the acts or faults of himself, his servants, agents, or subcontractors. As it stands, this provision, of course, does not afford complete indemnity to the city and the Authority because it is clearly insufficient to cover the acts or neglects imputable to the indemnitees themselves. (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36.) There is room, therefore, for a further provision supplementing this indemnity agreement so as to afford more complete protection to the indemnitees. With this thought in mind we examine section 1.02 of the specifications which, by reason of its heading, “ Contractor’s Responsibility,” is obviously intended to supplement article X of the contract. In construing this section of the specifications, we must take into account the direction contained in article I-a of the contract, which provides that in the event of conflict or inconsistency between the provisions of the contract and those of the specifications, the provisions of the contract shall control. Thus we should expect to find in the language of section 1.02 merely a supplemental agreement confined to indemnity and a natural construction of the language contained therein would seem to bear out that expectation. A perfectly reasonable construction of the language contained in this section is that, with reference to the specific subjects of excavation and blasting, the contractor agrees to afford a more complete protection to the indemnitees by assuming full responsibility for acts or neglects imputable to the latter. That this is the correct construction of the section in question is further borne out by looking to section 33 of the contract which expressly limits structural damage to the negligence or fault of the contractor, and section 1.05 of the specifications, which expressly define and limit the liability of the contractor with reference to the work of blasting. It is obvious, of course, that if specification 1.02 imposed the absolute liability contended for by plaintiff, the provisions of section 33 and of specification 1.05 would be altogether unnecessary.

Plaintiff’s construction of specification 1.02 is likewise completely out of harmony with the other provisions of the contract. An inspection of this document demonstrates the extreme nicety with which absolute liability, when intended, was imposed upon the contractor by the terms of the contract. For example, in article XXXVI of the contract, the contractor is required to take full precaution to protect the completed work until the entire contract is completed. This clause expressly provides, however, that the taking of proper precaution shall not relieve the contractor from absolute liability to the Authority on account of the completed work. This is an instance in which the draftsman of the contract intended to distinguish sharply between an obligation to use due care and an obligation to assume absolute liability and used language unmistakably imposing the latter kind of liability. This provision is in sharp contrast to the ambiguous words of specification 1.02, upon which plaintiff relies as imposing the same kind of absolute liability upon the contractor.

A brief examination of the other provisions of the contract discloses that no such sweeping liability as that contended for by plaintiff was intended to be imposed upon defendant contractor. The city of Buffalo and the Sewer Authority are the prime beneficiaries under this contract and, when any other person or class of persons is intended to be benefitted thereunder, such person or class of persons is unmistakably pointed out in explicit terms. Thus, for instance, article XVIII of the contract which authorizes the withholding of payments from the contractor, in addition to providing for the Authority and the city, permits the withholding of payments only in favor of claimants for labor and materials. Again, when a duty to repair is placed upon the contractor, the liability thus imposed is not left high in the air but is expressly confined to certain enumerated classes of subjects and certain enumerated classes of persons. The entire contract, therefore, so carefully limiting the extent of the liability imposed upon the contractor, is entirely out of harmony with the theory of plaintiff that an absolute liability was intended to be imposed upon the contractor in favor of an indeterminate class of persons without regard to geographical limitations, time limitations upon the filing of claims, or other reasonable restrictions.

The contention urged by plaintiff would give a construction to one paragraph of the specifications entirely inconsistent both with the provisions of article I-a of the contract, limiting the specifications merely to the supplementing of the contract, and also with the general contract ■ rule relegating the specifications to performing merely the function of bills of particulars with reference to the main contract. (McGarry Contr. Co. v. Board of Education, 284 N. Y. 218.) Under the settled law of this State there is no liability resulting from vibrations from blasting performed without fault and with all due care. (Booth v. Rome, Watertown & O. T. R. R. Co., 140 N. Y. 267.) If it had been the intention to override this settled principle and create a new and absolute liability, would there not have been inserted in the contract itself a clear and unambiguous provision to that effect?

It is urged that the second paragraph in subdivision 1.02 of the specifications was entirely unnecessary if it were intended to limit liability of the contractor to indemnity of the city of Buffalo and of the Authority for the negligence of the contractor. As already noted, that was the very purpose of this provision of that section since without that express provision, the city and the Authority would not be covered for their own negligence. (Thompson-Starrett Co. v. Otis Elevator Co., supra.)

Where the contract itself provides only for indemnity to the city and the Authority against negligence and it is sought to read a part of the specifications as creating absolute liability on the part of the contractor wholly apart from negligence, then it is submitted that that portion of the contract is controlling which provides that in case of any conflict or inconsistency between the provisions of this contract and those of the specifications, the provisions of the contract shall govern.

It is urged that the use of the words accidental explosions ” in the second provision of subdivision 1.02 of the specifications is of great significance. Aside from the fact that accidental explosions may be due to carelessness, it is to be noted that these words are immediately followed in the same sentence, by the phrase “ and for the defense of all actions arising from such causes ” thus showing that the words accidental explosions ” are a part of the general indemnity provided for the city and the Authority. Otherwise there would be no need to cast the obligation to defend actions brought against the city and the Authority from “ such causes.”

Article X of the contract expressly provides for the withholding of moneys until all suits or claims for damages against the city and the Authority shall have been settled or otherwise disposed of. It is contended, therefore, that article XVIII which also provides for the withholding of money, indicated an intention to make the contractor liable to third parties without regard to fault on his part, but a careful reading of that provision limits the withholding of money to protect the Authority and the City of Buffalo from loss * * * caused by the act or neglect of the Contractor or of any of his sub-contractors.”

It is also urged that under article XXXIX of the contract, the contractor is required to take out public liability insurance and property damage insurance, but in the absence of a provision for additional coverage, this provision to take out insurance is merely for the coverage of the undertaking of the contractor, namely, to indemnify the city of Buffalo and the Authority.

Plaintiff-respondent relies chiefly upon Wilson v. Costich Co. (231 App. Div. 346; affd., 256 N. Y. 629) and Trumpbour v. Johnson Corp. (250 App. Div. 856; affd., 277 N. Y. 609). The contract in the Wilson case, however, specifically compelled the contractor to repair whatever damage he caused without regard to ordinary legal liability. In the Trumpbour case two paragraphs of the contract, numbered 5 and 6, were relied upon by the plaintiff as imposing absolute liability upon the contractor on account of blasting operations. Paragraph 5 was obviously a contract of indemnity which had this feature that distinguishes it from article X of the contract in the case at bar; it was a complete indemnity agreement because it was sufficiently broad to cover acts and neglects imputable to the indemnitees in accordance with the Thompson-Starrett rule. (Thompson-Starrett Co. v. Otis Elevator Co., supra.) Consequently, the subject of indemnity had been completely covered by this provision and the other provisions of the contract would be completely meaningless unless they dealt with some different subject. The provisions of paragraph 6 may be said fairly to impose the kind of absolute liability contended for by plaintiff, especially because of the use of the explicit words that all damages of whatever nature * * * from whatever cause ” shall be borne and sustained by the contracting party. On the other hand, defendant’s construction of the contract in the case at bar finds authoritative support in a number of Federal cases construing similar language in public works contracts. (United States v. Massachusetts Bonding & Ins. Co., 18 Fed. Rep. [2d] 203; Corrigan Transit Co. v. Sanitary Dist. of Chicago, 137 Fed. Rep. 851; Twin Falls Canal Co. v. American Falls Reservoir Dist. No. 2, 59 Fed. Rep. [2d] 19, cert, denied, 287 U. S. 638.)

The judgment appealed from should be reversed and the contract cause of action in the complaint dismissed, but without costs.

Conway, Desmond and Lazansky, JJ., concur with Rippey, J.; Finch, J., dissents in opinion in which Lehman, Ch. J., and Lottghran, J., concur.

Judgment affirmed.

       Designated pursuant to section 5 of Article VI of State Constitution in place of Lewis, J., disqualified.


author: Lehman, Ch. J.

text:
    The People of the State of New York, Respondent, v. Carmen Barber, Appellant.
    Argued October 19, 1942;
    decided January 7, 1943.

      Hayden C. Covington and Arthur Rathjen for appellant.
    The evidence shows that defendant’s activity does not constitute “ hawking ” or “ peddling ” within the true meaning of the ordinance and that there was no sale or selling or bartering as those terms-are properly defined because there was no commercial motive or profit contemplated by defendant. (Schneider v. State, 308 U. S. 147; Hague v. C. I. O., 307 U. S. 496; Reynolds v. United States, 98 U. S. 145; Matter of Cain, 39 Ala. 440; People v. Finkelstein, 170 Misc. 188; Cincinnati v. Mosier, 61 Ohio App. 81; Semansky v. Stark, 196 La. 307; State v. Meredith, 197 S. C. 351; Thomas v. Atlanta, 59 Ga. App. 520; State v. Morris, 28 Idaho, 599.) The ordinance as construed by the courts below to apply to the activity of defendant in preaching the gospel and distributing literature is unconstitutional and void because as so construed and applied defendant’s rights of freedom of press and worship of Almighty God are abridged and denied contrary to sections 3, 8 and 11 of article I of the New York State Constitution without equal protection and due process of law. (Erie R. R. Co. v. Tompkins, 304 U. S. 64; People ex rel. Doyle v. Atwell, 232 N. Y. 96; Concordia Fire Ins. Co. v. Illinois, 292 U. S. 535; Lovell v. Griffin, 303 U. S. 444; Matter of Jackson, 96 U. S. 727; Grosjean v. American Press Co., 297 U. S. 233; Blue Island v. Kozul, 379 Ill. 511; Village of South Holland v. Stein, 373 Ill. 472; Commonwealth of Pennsylvania v. Reid, 20 A. [2d] 841; Hough v. Woodruff, 2 So. [2d] 577; State v. Greaves, 112 Vt. 222; Watson v. Jones, 80 U. S. 679.) The ordinance as construed by the courts below to apply to the activity of defendant in preaching the gospel and distributing literature is unconstitutional and void because as so construed and applied it abridges and denies defendant his rights of freedom of press and of worship of Almighty God and is an excessive burden thereon, contrary to the First and Fourteenth Amendments to the United States Constitution. (Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Di Santo v. Pennsylvania, 273 U. S. 34; Grosjean v. American Press Co., 297 U. S. 233; Lovell v. Griffin, 303 U. S. 444.)

      Whitney North Seymour et al., as Committee on Civil Rights of the New York State Bar Association et al., amici curiæ.

    The ordinance is inapplicable to appellant’s activities. (Cantwell v. Connecticut, 310 U. S. 296; State ex rel. Semansky v. Stark, 196 La. 307; City of Shreveport v. Teague, 8 So. [2d] 640; Thomas v. City of Atlanta, 59 Ga. App. 520; State v. Meredith, 197 S. C. 351; State ex rel. Hough v. Woodruff, 147 Fla. 299; Cincinnati v. Mosier, 61 Ohio App. 81; City of Blue Island v. Kozul, 379 Ill. 511; McConkey v. City of Fredericksburg, 179 Va. 556; Duncan v. Gairns, 27 Can. Crim. Cas. 440; Gregg v. Smith, 8 L. R. 302; 12 Eng. Rul. Cas. 501; People v. Finkelstein, 170 Misc. 188.) The ordinance is invalid if it was correctly applied to appellant. (Cantwell v. Connecticut, 310 U. S. 296; Schneider v. State, 308 U. S. 147; Bridges v. California, 314 U. S. 252; People v. Sandstrom, 279 N. Y. 523; Lovell v. Griffin, 303 U. S. 444; Hague v. C. I. O., 307 U. S. 496.)

      Daniel J. O’Mara, District Attorney (Alan M. Hill of counsel), for respondent.
    The ordinance is a valid exercise of the legislative power of the town and in no • unconstitutional way abridges or restricts appellant’s right of free speech, press, conscience or religion. (Jones v. Opelika, 316 U. S. 584; People v. Passafume, 22 N. Y. S. [2d] 785.)
   Lehman, Ch. J.

The defendant, a member of a religious sect known as “ Jehovah’s Witnesses,” rang the door bell of the house where a police officer of the town of Irondequoit lived, and when the'officer came to the door, the defendant took several books out of a satchel and held them out ” towards the police officer. We quote here the officer’s testimony of what then occurred:

“A. Yes, and I said to him what do you want and he said a little donation, and I said I will give you 25 cents for the Bible and he said no, I will sell it to you for 35 cents and I informed him then he was violating the town ordinance and for him to quit soliciting and peddling and to get out of town and he started to walk toward the house next to me on the right and I opened the door and I said if you go to that next house and solicit there I will arrest you and he went up and rang the door bell and a man came to the door and he held out one of these cards, and at that I went up and took hold of him and placed him under arrest.”

' The information verified by the police officer charges:

“ That on the 7th day of December, 1941, at about 10:45 o’clock A. m. one Carmen Barber did violate Sec. 136, Par. 1, Town Licensing Ordinance, (by) wilfully and unlawfully did commit an act of selling without a license in that he did offer for sale and set a price of 35 cents on a Bible which was among other books and pamphlets he displayed to the complainant at his home, 205 Pt. Pleasant Rd., in the Town of Irondequoit, New York.”

The defendant was convicted after trial before a justice of the peace sitting as a court of Special Sessions, and his conviction was affirmed by the County Court. Upon the appeal to this court the defendant maintains that in offering the Bible and other books and pamphlets for a price he did not violate the ordinance; and that if the ordinance were construed so broadly that his conduct comes within its scope, the ordinance would violate his rights of freedom of religious worship and freedom of speech and press guaranteed by the Constitution of the State of New York and the Constitution of the United States.

The ordinance in part provides
“ Section 1. Title.
“ This ordinance shall be known as the ‘ Licensed Occupations Ordinance.’
" Section 2. Licensing Trades or Occupations.
Pursuit or exercise within the Town of Irondequoit of the following trades or occupations is hereby prohibited without a license obtained as hereinafter provided, to wit:
“ (a) Soliciting, either on private property or on the public highway, running therefor, or for hotels, boats, lodging houses or garages; auctioneering, hawking and peddling, except the peddling of meats, fish, fruit and farm products by farmers and persons who produce such commodities;”

Subdivision b of section 2 refers to operation of public vehicles over streets of the town for hire. Subdivision c refers to operation of places of public amusement. Subdivision d refers to the pursuit of the trade of plumbing.

Section 4 provides:
Section 4. Issuing of Licenses.

The town clerk of the Town of Irondequoit upon written application and upon receipt of the license fee therefor shall issue a license specifying the trade or occupation thereby authorized, and such license shall become effective from the date thereof and shall continue in force for the term specified therein, but in no event longer than through the thirty-first day of December next succeeding. Such license shall not be transferable. Such license may be refused by the town clerk if the applicant shall have been convicted of a misdemeanor or felony which in the judgment of the town clerk renders the applicant unfit or undesirable to carry on the trade or occupation involved. The town clerk may also refuse a license to any person who in his judgment shall be an undesirable person or incapable of properly conducting the trade or business desired. Any applicant who has been refused a license by the town clerk may apply to the town board therefor, and the same may be granted or refused by the board, except as prohibited herein. Where additional requirements are imposed herein on the issuance of certain licenses the town clerk shall issue a license only upon compliance with such additional requirements.”

The defendant earns his living by working as a laborer for a contractor. In his spare hours and on Saturdays and Sundays he distributes Bibles and religious books and tracts. The satchel which he carried at the time of his arrest contained only such publications. The defendant is foreign born. His testimony is not entirely clear. It appears sufficiently, however, that the books and pamphlets which the defendant distributes are furnished to him by Watch Tower Bible and Tract Society, a society or corporation organized to spread the doctrines which are accepted as the word of God by the religious sect of which the defendant is a member. He carried a certificate from the society that he “ is an ordained minister of Jehovah God to preach the gospel of God’s kingdom under Christ Jesus, and is therefore one of Jehovah’s witnesses; that he is sent forth by this Society, which is created and organized and chartered by law to preach the gospel of God’s kingdom, and that Jehovah’s witnesses are commanded to obey God by preaching the gospel.” The defendant testified that the distribution of the Bible and religious books is the form in which Jehovah’s Witnesses preach the gospel. The price demanded pays for the ink and paper ” but “ if the person has no money, if he ask me and say I have no money, I give him a Bible or book or anything he want.”

The slight conflict between the testimony of the defendant and the testimony of the complaining witness, in respect to the conversation or transaction, which, it is said, constitutes a violation of the ordinance, has been resolved against the defendant in the courts below. The testimony of the defendant in respect to his activities as a member of a religious sect or society and his purpose in distributing or selling the Bible and the religious tracts is not contradicted and its truth is not challenged. The primary problem presented upon this appeal is whether the testimony of the complaining witness which we have quoted, read in the light of the testimony of the defendant which we have summarized, shows that the defendant was engaged in the “ pursuit or exercise ” of the “ trades or occupations ” of “ soliciting ” or of “ hawking or peddling ” within the meaning of the ordinance.

In the case of Jones v. Opelika (316 U. S. 584), decided June 8, 1942, the Supreme Court of the United States sustained the power of a state to impose by statute or ordinance a tax upon the sale of all merchandise, without discrimination between religious books and tracts and other articles or merchandise, and sustained the power of the state to require a license for the exercise of the business ” or “ vocation ” or calling ” of “ peddlers ” or of “ vendors ” of such articles, though such peddlers ” or “ vendors ” sell or distribute books and pamphlets without profit to themselves and for the purpose of disseminating doctrines or opinions and exact a price only to raise moneys to meet the cost of spreading their ideas. Four justices of the court dissented from that decision on the ground that taxing and licensing statutes or ordinances “ could, when applied to the dissemination of ideas, be made the ready instrument for destruction of that right ” fof free speech] and that the ordinances there challenged “ impose a burden on the circulation and discussion of opinion and information in matters of religion, and therefore violate the petitioner’s rights to freedom of speech, freedom of the press, and freedom of worship” in contravention of the guarantees of those freedoms contained in the Constitution of the United States, (pp. 607, 612.) In that case no question was presented whether the challenged ordinances were intended to be applied to the dissemination of ideas ” by the sale of religious books by Jehovah’s Witnesses. That had been authoritatively decided by the state courts, and the construction placed upon the ordinances by the state courts could not be challenged in the Supreme Court of the United States. Only the question of the scope and effect of the provisions of the Constitution of the United States was presented and decided by the Supreme Court. If only the same question were presented upon this appeal the decision of the Supreme Court might require us to affirm the judgment against the appellant, regardless of what the views on such question of some or all the judges of this court might be.

Upon this appeal we must decide the question whether the ordinance, properly construed, requires a member of a religious sect to obtain a license in order to be permitted to sell or offer to sell the Bible and religious tracts without profit to himself, before we reach any question whether the ordinance so construed would infringe the rights of freedom of worship, and of freedom of speech and press, guaranteed not only by the Constitution of the United States but in perhaps even plainer language by the Constitution of the State of New York. Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States.

The ordinance is in express terms limited in its application to specified trades or occupations ” including the trades or occupations of soliciting ” and hawking and peddling.” The words trades or occupations ” suggest activities carried on as a business, and a reading of the ordinance as a whole leaves no room for doubt that the ordinance was intended to regulate certain business activities within the town. The words of the ordinance do not dictate, and perhaps do not permit, a construction which would bring within the scope of the ordinance solicitation, by an unpaid solicitor, of contributions for the work of a religious society of which the solicitor is a member, or the sale of the Bible or religious tracts to cover the cost of production, or to raise funds for the purposes of the society. The ordinance can be given its full intended effect without such construction.

The Bill of Rights embodied in the Constitutions of the State and Nation is not an arbitrary restriction upon the powers of government. It is a guarantee of those rights which are essential to the preservation of the freedom of the individual — rights which are part of our democratic traditions and which no government may invade. Where a legislative body has sought to invade a field from which under the Bill of Rights the government is excluded, and has violated rights guaranteed by the Constitution, the courts must refuse „ to recognize or sanction the legislative decree — but legislative bodies are no less responsible than the courts for the preservation of the liberties of the individual, guaranteed by the Bill of Rights, and legislative bodies, as a general rule, accept no less sincerely the democratic traditions and principles which the Bill of Rights expresses. We may not impute to a legislative body an intent to adopt a statute or ordinance which might be used as an instrument for the destruction of a right guaranteed by the Constitution which executive and legislative officers of government, no less than judges, are sworn to maintain. For that reason an ordinance or statute should be construed when possible in manner which would remove doubt of its constitutionality, and possible danger that it might be used to restrain or burden freedom of worship or freedom of speech and press.

We apply these rules to the construction of the ordinance which it is said that the defendant violated. The ordinance not only prohibits the exercise by any person of the “ trades ” or “ callings of soliciting or “ hawking or vending without a license, but confers upon an officer of the town discretion whether to grant or withhold a license. Similar ordinances and' statutes have usually been construed as intended to apply only to business activities, and the distribution or sale of religious books or pamphlets by a member of a religious sect for the propagation of the faith or doctrines of the sect and without profit to the distributor, and the sale or distribution of books and pamphlets of opinion in similar manner, have been excluded from its scope. (See State ex rel. Semansky v. Stark, 196 La. 307; State v. Meredith, 197 S. C. 351; Thomas v. City of Atlanta, 59 Ga. App. 520; City of Shreveport v. Teague, 200 La. 679; City of Cincinnati v. Mosier, 61 Ohio App. 81; People v. Finkelstein, 170 Misc. 188.) Even in England, where legislative bodies, though.restrained by the traditions and principles embodied in the Bill of Rights, exercise a power not subject to constitutional limitation, a similar legislative decree has received similar construction. (Gregg v. Smith, 12 Eng. Rul. Cases 501 [Q. B. 1873].)

Though we may assume for the purposes of this appeal that the ordinance would be valid even if, in plain language, the defendant’s activities were included in its scope, yet both the prevailing and dissenting opinions filed in the case of Jones v. Opelika (supra), demonstrate that strong argument might then be urged against its validity and that so construed it might be applied in manner which would seriously burden or destroy fundamental rights. In such case it is clear to us that the ordinance should not be construed as intended to apply to the activities of the defendant.

Upon this appeal the Committee on Civil Rights of the New York State Bar Association, the Committee on the Bill of Rights of the Association of the Bar of the City of New York, and the Committee on Civil Rights of the New York County Lawyers Association, have filed a brief, amici curise, by permission of the court. We conclude this opinion by a quotation from that brief: It may seem to some that appellant’s activities were of such a character that, at this critical period in world history, the Courts and the Bar need not be particularly concerned with their repression. But, if appellant’s activities involved the exercise by him of fundamental rights guaranteed by the Federal and State Constitutions, the violation of those rights cannot be disregarded as of trivial consequence. Each case of denial of rights to an individual or to a small minority may seem to be relatively unimportant, but we know now, more surely than ever before, that callousness to the rights of individuals and minorities leads to barbarism and the destruction of the essential values of civilized life.” We can find no reason to doubt that the ordinance was not intended to furnish an instrument by which the right of any group to spread its religious beliefs, or even social opinions, could be curbed. We are bound to construe the statute in manner which would exclude possibility that the ordinance might be given such effect.

The judgments should be reversed and the information dismissed. Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur; Conway, J., taking no part.

Judgments reversed, etc.


author: Desmond, J.

text:
    Pauline Tkach et al., Respondents, v. Montefiore Hospital for Chronic Diseases, Appellant, Impleaded with Others.
    Argued October 27, 1942;
    decided January 14, 1943.

      H. H. Brown, E. J. Roberts and E. C. Sherwood for appellant.
    There is no evidence that the defendant hospital had notice, either actual or constructive, of any defect in the plaintiffs’ apartment. The complaint should, therefore, have been dismissed. (Altz v. Leiberson, 233 N. Y. 16; Costagliola v. Home Owners Loan Corp., 35 Fed. Supp. 930; Eckert v. Reichardt, 243 N. Y. 72; Aubry v. Ashland Realty Co., 255 App. Div. 205; Norton v. Wiswall, 26 Barb. 618; Becker v. Manufacturers Trust Co., 262 App. Div. 525; Weiner v. Leroco Realty Corp., 279 N. Y. 127.)

      Joseph L. Rudell for respondents.
    The owner of a multiple dwelling cannot divest itself of its statutory duty to keep its premises in good repair by a lease of the entire premises to another. (Altz v. Leiberson, 233 N. Y. 16; Weiner v. Leroco Realty Corp., 279 N. Y. 127.) The defendant-appellant had constructive notice of the defective ceiling in the apartment of the plaintiffs. The existence of the defect for about three months together with the knowledge thereof by the superintendent of the building living on the premises, afforded the owner-lessor ample opportunity to learn of it by the exercise of ordinary diligence. (Weiner v. Leroco Realty Corp., 279 N. Y. 127.)
   Desmond, J.

Plaintiffs, wife and husband, sued Montefiore Hospital because of personal injuries suffered by the wife when she was struck by faffing plaster in an apartment rented to and occupied by plaintiffs in a multiple dwelling owned by the Hospital. The Hospital impleaded defendant Hurwitz, lessee from it of the whole apartment building. Judgment went for plaintiffs against the Hospital and in favor of the Hospital against Hurwitz. Only the Hospital has appealed. The lease from the Hospital to Hurwitz of the whole building required tenant Hurwitz to keep the property in repair. It gave the landlord the right at any time to enter and examine the premises, it being covenanted therein, however, that this provision did not obligate the landlord to make any repairs. Plaintiffs produced evidence that the injuries to the wife were caused by falling plaster in the apartment kitchen, and that, some time before the accident, plaintiffs had reported the defective condition of the plaster to lessee’s agent, who did nothing about it. The only testimony for the defense was as to the terms of the lease from the Hospital to Hurwitz and as to the fact that the owner had no employees at the property.

Section 78 of the Multiple Dwelling Law (Cons. Laws, ch. 61-A) commands that “ every multiple dwelling and every part thereof shall be kept in good repair.” It makes the owner responsible for compliance ” with its provisions but imposes liability on the tenant also for any violation caused by the tenant’s wilful act or negligence.” In the Appellate Division two of the three justices who voted for affirmance concurred in an opinion which said that the facts of this case justified a finding of constructive notice to the owner; a third justice concurred for affirmance on the ground that the statute makes the owner liable for the dereliction of his lessee in failing to make proper repairs after reasonable notice to the lessee.” (264 App. Div. 135, 137). The justices who voted for reversal were of the opinion that, while a lease of a whole building does not relieve the owner of his statutory duty to keep the building in repair, nevertheless, they wrote, there must be, to hold the landlord for damages, proof of notice to the landlord “ actual or constructive, of the dangerous condition and a reasonable opportunity afforded thereafter to make the necessary repairs.” The minority opinion cites Altz v. Leiberson (233 N. Y. 16) and Becker v. Manufacturers Trust Co. (262 App. Div. 525). In the Altz case there was proof of actual notice to the landlord. In the Becker case no claim of constructive notice [to the landlord] was asserted,” (p. 526) but the court held that actual notice to the lessee of the whole building was not actual notice to the landlord.

The question now to be answered is this: may a long-continued existence of a dangerous condition, actually known to the lessee of the whole building, justify a finding of constructive notice to the landlord who, absenting himself from the premises, and failing to avail himself of his contractual right of access to the apartments, remains in ignorance of a dangerous condition inside an apartment? A negative answer to that question would, we think, in large part defeat the purposes of section 78.

In Weiner v. Leroco Realty Co. (279 N. Y. 127, 130) the opinion, after reminding us that section 78 makes liable the tenant as well as the owner, points out that the word tenant ” includes a lessee of the whole building and that, unless an owner is to remain liable despite a lease of the whole building, such an owner, by leasing the house to an irresponsible person, “ could very readily shift the burden and nullify the purposes of the law.” By the terms of the lease in Weiner v. Leroco Realty Co. (supra), as by the terms of the lease before us in the present case, the owner was allowed entry to the interior of the apartments. Although the defective part of the building, in the Weiner case, was a stairway leading from the front sidewalk down into the building, the reasoning of that opinion is not without application here. We see no reason why the rule there laid down should not be available here to charge the landlord with constructive notice of defects in all those parts of the building into which, by authority of the written lease, he may enter. We need not now decide whether liability might also be imposed, on the theory of constructive notice, in a case where the landlord has not reserved the right to enter, inspect and repair, or whether, in this case liability might be imposed on any theory other than the one here applied.

The judgment should be affirmed, with costs.

Lehman, Ch. J., Loughran, Pinch, Rippey, Lewis and Conway, JJ., concur.

Judgment affirmed.


author: Finch, J.

text:
    Village of East Rochester, Respondent, v. Rochester Gas & Electric Corporation et al., Appellants, Impleaded with Others.

      Argued October 27, 1942;
    decided January 14, 1943.

      Edmund B. Naylon, Earl L. Dey, George J. Nier and George Foster, Jr., for appellants.
    The easements of the electric corporation were granted prior to the dedication of the streets as public highways, which dedication was expressly made and accepted subject to the exclusive and perpetual rights of the electric corporation to use such streets for the transmission and distribution of electricity. (Matter of City of New York (East 177th St.), 239 N. Y. 119; Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 261; Nichols Copper Co. v. Connolly, 208 App. Div. 667; 240 N. Y. 596; Wright v. City of Mount Vernon, 44 App. Div. 574; 167 N. Y. 541; City of Oswego v. Oswego Canal Co., 6 N. Y. 257; People v. Brooklyn & Queens Transit Corp., 273 N. Y. 394; Stillman v. City of Olean, 228 N. Y. 322; City of Cohoes v. D. & H. Canal Co., 134 N. Y. 397; People v. Sutherland, 252 N. Y. 86; Johnson v. City of Niagara Falls, 230 N. Y. 77; Matter of Wallace Avenue, 222 N. Y. 139.) The easements are in no respect contrary to the public policy of the State. (People ex rel. N. Y. Edison Co. v. Willcox, 207 N. Y. 86; Wright v. City of Mount Vernon, 44 App. Div. 574; 167 N. Y. 541; City of Oswego v. Oswego Canal Co., 6 N. Y. 257; Village of Long Beach v. Long Beach Power Co., 104 Misc. 337; Tallon v. City of Hoboken, 60 N. J. L. 212; City of Jacksonville v. Shaffer, 107 Fla. 367; Gwin v. City of Greenwood, 150 Miss. 656; Continental Securities Co. v. Interborough R. T. Co., 207 Fed. 467; 221 Fed. 44; City of Los Angleles v. Los Angeles Gas & Electric Corp., 251 U. S. 32; Twin City Pipe Line Co. v. Harding

      Glass Co., 283 U. S. 353; Walla Walla v. Walla Walla Water Co., 172 U. S. 1; Vicksburg v. Vicksburg Water Works Co., 202 U. S. 453.) The Legislature could not destroy the exclusive character of the easements subject to which these streets were donated to the village by conferring on municipalities generally the right to go into the electric business. (Eighth Ave. Coach Corp. v. City of New York, 286 N. Y. 84; People v. O’Brien, 111 N. Y. 1; Long Island R. R. Co. v. Summers, 263 App. Div. 889; D., L. & W. R. R. Co. v. Town of Morristown, 276 U S. 182; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; Matter of Village of Boonville v. Maltbie, 272 N. Y. 40.)

      Percival D. Oviatt and Carlton F. Bown for respondent.
    The deeds to Despatch Power Company were ineffectual and void in so far as they attempted to grant exclusive rights in the streets, because they constituted an attempt by private parties to create a monopoly, to restrain trade, and were contrary to public policy. (Central N. Y. T. & T. Co. v. Averill, 199 N. Y. 128; West Virginia Transp. Co. v. Ohio River Pipe Line Co., 22 W. Va. 600; Western Union v. American Union, 65 Ga. 160; Gibbs v. Consolidated Gas Co., 130 U. S. 396; People ex rel. Perceval v. Pub. Serv. Comm., 163 App. Div. 705; Parfitt v. Ferguson, 159 N. Y. 111; Western Union Tel. Co. v. Postal Union, 217 Fed. 533; St. Louis & C. R. R. v. Postal Tel. Co., 173 Ill. 508.) The State or a municipality with delegated powers has complete control over the streets. (Milhau v. Sharp, 27 N. Y. 611; New York Central R. R. Co. v. Middleport G. & E. Light Co., 193 App. Div. 273; 232 N. Y. 622; Matter of Rhinehart v. Redfield, 93 App. Div. 410; 179 N. Y. 569; Grand Trunk Western v. City South Bend, 174 Ind. 203; Rogers Park v. City of Chicago, 131 Ill. App. 35; Bradley v. Spokane, 79 Wash. 455; State ex rel. Townsend v. Board Pk. Comm., 100 Minn. 150; Gale v. Village of Kalamazoo, 23 Mich. 344; City of Joseph v. Joseph Water Works, 57 Ore. 586.) Municipalities have no power to grant exclusive franchises. (Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167; Milhau v. Sharp, 27 N. Y. 611; Waterloo Water Co. v. Village of Waterloo, 200 App. Div. 718; Bradley v. Spokane, 79 Wash. 455; Rogers Park v. City of Chicago, 131 Ill. App. 35; Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167; Belden v.
      City of Niagara Falls, 230 App. Div. 601; Gale v. Village of Kalamazoo, 23 Mich. 344; A. R. T. Co. v. Hess, 125 N. Y. 641.) The grants to Despatch Power Company and the reservations in the deeds to the towns were ineffectual because of the dedication made and accepted and because of prior grants covering the same matters. (Johnson v. City of Niagara Falls, 230 N. Y. 77; Geddes C. S. Co. v. N. L. & O. Power Co., 207 N. Y. 500; Johnson v. Grenell, 188 N. Y. 407; Newton v. City of Dunkirk, 121 App. Div. 296; Bridges v. Wyckoff, 67 N. Y. 130; Niagara Falls v. N. Y. C. & H. R. R. R. Co., 41 App. Div. 93; Matter of Hunter, 163 N. Y. 542; 164 N. Y. 365; Buffalo L. & R. Ry. Co. v. Hoyer, 214 N. Y. 236.)
   Finch, J.

This is an action brought by the Village of East Rochester as plaintiff for a declaratory judgment to determine its right to use the streets of the village to construct a municipal fighting plant for the purpose of lighting the streets and to sell electricity to private consumers, as against a claim by the Rochester Gas & Electric Corporation that the latter had acquired an exclusive right for such use of the streets prior to the incorporation of the village. No right is claimed by the village to take or interfere in any way with the physical equipment now used by the Rochester Gas & Electric Corporation. The latter seeks to enforce, in addition to its easement rights, a contract right through ■ which it claims to exclude all others, including the village, from using any portion of the land comprising the streets of the village, even though such land is not in any way used by the Rochester Gas & Electric Corporation.

The record shows that, prior to the year 1897, a developer named Parce sought, to develop unimproved rural land situated in the towns of Pittsford and Perinton, Monroe county, and lying some eight miles southeast of the city of Rochester. At that time there were but three public highways in this area, Lincoln road, Washington street and Linden avenue.

At first Parce appears interested only in the sale of lots. Subsequently he became interested in the acquisition of public utilities, and in 1904, in the value of a monopoly in connection with the ownership of these public utilities. Before its incorporation in 1906, the settlement or hamlet was known as Despatch.”

In June of 1897, Vanderbilt Improvement Company, hereinafter called Vanderbilt, which had been incorporated a few months before the improvement, development and sale of the real property, filed a subdivision map in the County Clerk’s office by which an area was divided into lots and blocks fronting on various streets delineated thereon. None of these streets, with the exception of the three named and already in existence, was a public highway. Subsequently, other similar maps were filed, subdividing lands added to the original area. In 1897, Vanderbilt began a selling campaign. From June, 1897 to July 31,1905, Vanderbilt conveyed, by lot number and by reference to the filed maps, 360 lots without any reservation of title in the streets. In the latter part of the same period, namely from April, 1901 to July 31,1905, there were approximately 361 conveyances of lots containing the following clause: Excepting and reserving therefrom the street or streets abutting upon said premises, the fee of which subject to the use of said street or streets as a highway or highways is retained in the Vanderbilt Improvement Company.”

It has been found by the official referee and affirmed by the Appellate Division, with one dissent, that from the first filing of the maps in 1897 an intention existed to dedicate the highways shown on the maps as public highways. It has likewise been found that this offer to dedicate continued up to the time when the dedication was accepted by the plaintiff village. In Buffalo L. & R. Ry. Co. v. Hoyer (214 N. Y. 236, 243) we held that a municipality need not be in existence at the time of the dedication, but acceptance may occur when the municipality comes into existence. There the court said: “ It is enough that the lots are offered, sold and bought with the understanding that the designated portions are public parks and commons. The municipality upon its subsequent organization becomes the trustee for the public to the extent of the dedication.”

Whether or not a dedication existed from the first filing of the maps presents a question of fact (Johnson v. City of Niagara Falls, 230 N. Y. 77) which has been found and affirmed by the Appellate Division in favor of the plaintiff.

There is substantial evidence to support the findings of the official referee, affirmed by the Appellate Division, of an intention to dedicate the streets and highways as public streets and highways, and to keep this offer open until acceptance by a duly incorporated village. The filing of the maps showing thereon the layout of the streets and avenues furnishes some evidence of this intention. (Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 261.) Mere filing of maps and a mere user for a limited time, however, are not sufficient standing by themselves, to constitute a dedication. (Matter of City of New York, 239 N. Y. 119.) The findings, however, of the official referee do not have to rest upon such narrow facts. In addition to the filing of the maps, with the streets and highways delineated thereon, we have the fact that in 1897 Parce showed his intention not only to designate these streets and highways as public streets and highways, but he also looked forward then to an incorporated village. We have a deed by Vanderbilt dated August 24, 1897, in which Vanderbilt, over Farce’s signature as president, restricted the use of a lot in the subdivision for a period of twenty years, or until said lot shall be included in a duly incorporated village.” This deed was only one of many of like character. In addition, all the deeds which reserved title in the streets contained a reservation in the following language, “ subject to the use of said street or streets as a highway or highways.” Admissions by the grantor, even though oral, are evidence of an intention to dedicate. (Newton v. City of Dunkirk, 121 App. Div. 296.) In addition, we have the deed from Vanderbilt to the Despatch Heat, Light and Power Company, recorded in July, 1904, wherein a nonexclusive privilege was given to use the streets, and the following language was used: All streets, avenues, parks, alleys, lanes, highways and other public places * * * as laid out and shown on a map.” The statement that the streets, highways and other public places are shown on the maps indicates that the maps themselves showed the dedication according to the intention of the owner. (Newton v. City of Dunkirk, supra.) In the same conveyance the privilege granted is extended to “ all other streets * * * highways, and other public places which now are or may hereafter be laid out.” The use of the word other ” before public places ” indicates that the streets and highways which preceded this word were also public places.

All this evidence occurred at a time preceding July, 1905, when the building company attempted to grant to the Despatch Heat, Light and Power Company, the predecessor of the Rochester Gas & Electric Corporation, the exclusive rights to use the streets for an electric plant.

Up to 1901 there was m existence no systematic plan for utilities for public service. In July, 1904, the certificate of incorporation of Despatch Heat, Light and Power Company was filed. At the same time there was filed a certificate of incorporation of a sewerage company. In May, 1905, there was filed a certificate of incorporation of a water company to supply water to municipalities. In July, 1905, there was filed a certificate of incorporation of a building company to deal in real estate. By deed dated July 15, 1905, Vanderbilt granted to the sewerage company a nonexclusive right to use the streets for sewerage purposes. By deed dated July 15, 1904, there was transferred to the Despatch Heat, Light and Power Company, the business of electric lighting and the good will thereof at the so-called village of Despatch, in Penfield. By deed on the same date, Vanderbilt conveyed to the Despatch Heat, Light and Power Company the nonexclusive right to use the streets for the purpose of distributing electricity. A deed dated May, 1905, conveyed to the water company the exclusive and perpetual right to use the streets for a water works system. In July, 1905, the building company granted to the Despatch Heat, Light and Power Company the sole, exclusive and perpetual right to use the streets for an electric plant.

The deed from the building company and a deed from Vanderbilt to Despatch Heat, Light and Power, dated, respectively, July 27, 1905 and July 31, 1905, granting exclusive rights to use the streets for equipment to serve electricity, contained the following clause: The rights, privileges and franchises herein intended to be granted and conveyed shall be and hereby are sole, exclusive and perpetual, except as to gas and steam.”

It is to be noted that from the first sale of lots whereby purchasers had title to the center of the roadway, the dedication of streets and highways was irrevocable so far as these purchasers were concerned, and no exclusive easement could be given in those lands unless the consent of all those purchasers was obtained. Nothing of the sort appears in the record. Indeed, appellants say in their brief: “ Even assuming, without conceding in any way, that in those instances where the conveyance to purchasers of lots did not contain such a reservation, the Electric Corporation does not have any easement, nevertheless, its easements are valid and exclusive in the other half of the development, and in order to render service throughout the area the municipality would have to, and it proposes to, use those streets.”

Where, therefore, purchasers received deeds containing no reservations and therefore took title to the center of the street subject to the street use, we have a situation where the purchaser had purchased lots on a public highway, and this right to have the lot face on a public highway rather than a private highway could not be taken away from him without his consent. (Flack v. Village of Green Island, 122 N. Y. 107.) Since these public highways constitute in their very nature arteries of travel, if the dedication of a portion of the highway may not be revoked, the dedication of the highway itself, standing as a whole,-may not be revoked.

We have, then, substantial evidence to support the finding of the official referee, affirmed by the Appellate Division, that there was an intention to dedicate irrevocably these streets and highways as public streets and highways until accepted by the duly incorporated village. When, therefore, there was an attempt by private corporations to grant an exclusive right to use these streets for an electric plant, these acts went beyond the power of any private party so to use public streets and highways. In the case at bar, as already noted, the record only shows that the conveyances were about evenly divided between those conveyances where the lot owner had title to the middle of the street and the grantor made no reservations, and instances where the grantor reserved merely a naked fee in the highway subject to highway uses. There is nothing to show whether there were any streets upon which a naked fee was reserved in the entire street. Concededly, where no reservation had been made of the naked fee of the street, the grant by the private corporation was invalid. (Geddes Coarse Salt Co. v. Niagara, L. & O. P. Co., 207 N. Y. 500.) As to the instances where the grantor had reserved the naked fee of the street, the grantor, as a private party, could not burden the public street for a street use with an exclusive grant.

In People v. Kerr (27 N. Y. 188, 201) the court, in assuming that an abutting owner had a right in a city street, even though the fee was otherwise owned, said: That interest can only be the ultimate right of reverter subject to the rights of the public, or the city, to the possession and use of the land, for all of the objects and purposes of a public street to which it has been devoted by confiscation or grant, and as long as it is required for these purposes.”

The right to exclude others from the use of land is an incident of complete ownership. When, however, the owner of land, although reserving the fee therein, subordinates his property rights in the land to public uses by a dedication, he surrenders the privilege of excluding others and that right, if it exists, passes into the hands of the municipality which is trustee for the public to the extent of the dedication. (Buffalo L. & R. Ry. Co. v. Hoyer, 214 N. Y. 236.) This conclusion is strengthened when we consider the well-established doctrine that the property rights of an owner of the fee in a public street are very limited and of little value. (Matter of Rapid Transit Railroad Commissioners, 197 N. Y. 81; Matter of City of New York, 196 N. Y. 286.) Somewhat analogous are the cases which hold that railroads have no right to grant exclusive privileges to use their rights of way. (St. Louis & C. R. R. Co. v. Postal Telegraph Co., 173 Ill. 508; Western Union Telegraph Co. v. Burlington & S. Ry. Co., 11 Fed. 1; Western Union Tel. Co. v. American Union Tel. Co., 65 Ga. 160.) If then public policy forbids exclusive privileges to be granted in railroad rights of way because of the devotion to public use, the same policy with equal if not more reason may.be applied to property similarly dedicated for use as public streets.

In view of the fact that we are resting this case upon the principle that private parties, even though owning the naked fee in the streets of a village, may not grant exclusive rights to use the street for a street use, namely lighting, to an electric company, it becomes unnecessary to consider the claim by respondent than in any event the attempt to grant an exclusive franchise to the Rochester Gas & Electric Corporation was ineffectual and void as an attempt by private parties to create a monopoly and to restrain trade, contrary to public policy. (Central New York Tel. & Tel. Co. v. Averill, 199 N. Y. 128.)

Rochester Gas & Electric Corporation further urges that the attempt to use the streets of the village for a municipal plant constitutes an attempted taking of the property rights of the electric company in their easements, and hence would be contrary to the constitutional safeguards against taking property without due process of law. Since the physical properties of the Rochester Gas & Electric Corporation are not in any way interfered with, and since an attempted grant of an exclusive privilege by private owners in city streets is invalid, no issue arises as to any taking of property of the Rochester Gas & Electric Corporation.

Nor can there be any claim by the Rochester Gas & Electric Corporation that there is to be any interference with its franchise by the village. When in 1905 the Despatch Heat, Light and Power Company obtained consents from the towns to use their streets, it neither asked for nor received an exclusive franchise. Hence, the village, when it seeks the rights herein sought, is not in any way interfering with the franchise rights of the Rochester Gas & Electric Corporation.

The Appellate Division relies upon article 14-A, sections 360 and 364, of the General Municipal Law (Cons. Laws, ch. 24) which permit a municipality to construct its municipal plant for the purpose of lighting its streets and selling electricity to consumers without application to the Public Service Commission. We are not shown how the rights of the Rochester Gas & Electric Corporation may be diminished by this section of the General Municipal Law. If the Rochester Gas & Electric Corporation possessed a valid exclusive franchise to use these streets of this village, this article 14-A would not seem to deprive it of this right without compensation. (Pennsylvania Coal Co. v. Mahon, 260 U. S. 393.)

It follows that the judgment appealed from should be affirmed, with costs.

Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.