author: O’Brien, J.

text:
    In the Matter of the County of Westchester, Respondent, Relative to the Hutchinson River Parkway. The New York, New Haven and Hartford Railroad Company, Appellant.
    Counties —■ parkways — railroad crossing — parkway extending many miles through a county not a street, avenue, highway or road, within meaning of provisions of Railroad Law for crossing steam railroad — determination of board of supervisors that it is a necessary street and that board should apply to Public Service Commission for determination as to railroad crossing annulled.
    A parkway designed under the Westchester Park Act (L. 1922, ch. 292) to extend many miles through the county is not “ a street, avenue, highway or road,” within the meaning of section 90 of the Railroad Law (Cons. Laws, ch. 49) specifying the procedure by which they may cross steam surface railroads. Section 94 of the Railroad Law, which by its terms is made to apply only to such new passageways of travel as are constructed under the provisions of section 90, is also inapplicable. No statute defines the official body which has power to serve notice upon a railroad, proposed to be crossed, give public hearing or make application to the Public Service Commission, respecting such a parkway, nor does any statute provide for proportioning the cost of constructing the crossings. A determination, therefore, of the board of supervisors that the laying out of such a parkway as a street is necessary and that the board should apply to the Public Service Commission to determine how it shall cross railroad tracks, should be annulled. (Buffalo, L. & R. Ry. Co. v. Hoyer, 214 N. Y. 236, followed.)

      Matter of County of Westchester, 219 App. Div. 371, reversed.
    (Argued October 4, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 23, 1927, which confirmed a determination by the board of supervisors of Westchester county that the construction of a highway, known as the Hutchinson River Parkway across the tracks and roadway of the New York, New Haven and Hartford railroad, in the villages of Pelham and North Pelham is necessary.

      Isaac N. Mills and Charles M. Sheafe, Jr., for appellant.
    This Hutchinson River Parkway drive is not a “ street, avenue, highway or road ” within the meaning or scope of section 90 of the Railroad Law. (Buffalo, L. & R. Ry. Co. v. Hoyer, 214 N. Y. 236; Sebring v. Quackenbush, 120 Misc. Rep. 609; McAneny v. N. Y. C. R. R. Co., 238 N. Y. 122; People ex rel. N. Y. C. R. R. Co. v. Public Service Comm,., 231 N. Y. 1; Matter of N. Y. C. R. R. Co. v. Public Service Comm., 242 N. Y. 561; People ex rel. Town of Scarsdale v. Public Service Comm., 220 N. Y. 1; Matter of N. Y. C. & H. R. R. R. Co., 200 N. Y. 121; Williams v. Gallatin, 229 N. Y. 248; Tobin v. Hennessy, 129 Misc. Rep. 756; 220 App. Div. 695.)

      Charles H. Peck and Henry R. Barrett for respondent.
    The county of Westchester is a municipal corporation, and its board of supervisors constitutes the governing authorities thereof. (Town of Kirkwood v. Newbury, 122 N. Y. 571; Matter of Rochester El. R. Co., 123 N. Y. 355; Gaedeke v. S. I. R. R. Co., 43 App. Div. 514; Nassau County v. Luessen, 69 Misc. Rep. 184.) The Hutchinson River Parkway is a new municipal highway and not a State or county highway as defined by the general laws. (County of Albany v. Hooker, 204 N. Y. 1; Rogers v. Bradshaw, 20 Johns. 742; Fox v. Union Turnpike Co., 59 App. Div. 366; Benedict v. Goit, 3 Barb. 439; Davis v. Mayor, 14 N. Y. 516; People ex rel. U. & D. R. R. Co. v. Public Service Comm., 171 App. Div. 608; Pres. D. & H. C. Co. v. Whitehall, 90 N. Y. 21; Birmingham v. R., C. & B. R. R. Co., 137 N. Y. 13; Kupelian v. Andrews, 233 N. Y. 282.)
   O’Brien, J.

The organization of the Westchester County Park Commission was authorized by chapter 292, Laws of 1922, and, pursuant to the provisions of section 1, its members have been appointed by the board of supervisors. Section 4 of the act declares the acquisition and maintenance of all park lands to be a county purpose, and section 20 provides for taxation to raise revenues which shall be a county charge. Among the lands under the exclusive management and control of the Commission and forming part of the Westchester County Park and Parkway System is the Hutchinson River Parkway. The record shows that this parkway is designed to extend many miles through the county and to cross the tracks of the New York, New Haven and Hartford railroad at two locations within the boundaries of the towns of Pelham and North Pelham. The Appellate Division has held that the provisions of section 90, Railroad Law (Cons. Laws, ch. 49), apply to the procedure by which the parkway may cross the railroad; that the parkway is a “ street ” of a" municipal corporation,” such corporation being Westchester county; that the county, acting through its Board of Supervisors, is the body designated by law to serve upon the railroad company notice of intention to lay out this parkway across its tracks and to conduct a public hearing on that subject and that the county, acting through the Park Commission, is the municipal corporation intended by law to make application to the Public Service Commission in respect to the grades at which the crossings shall be constructed.

Section 90, Railroad Law, as amended by chapter 481, Laws of 1924, reads in part as follows:

“ When a new street, avenue, highway or road, or new portion or additional width of a street, avenue; highway or road, or a state or county highway or county road deviating from the line of an existing highway or road, shall hereafter be constructed across a steam surface railroad, other than pursuant to the provisions of section ninety-one of this chapter, such street, avenue, highway or road, or new portion or additional width of a street, avenue, highway or road, shall pass over or under such railroad whenever such construction is practicable. Notice of intention to lay out such street, avenue, highway or road, or such new portion or additional width of a street, avenue, highway or road, across a steam surface railroad shall be given to such railroad corporation by the municipal corporation at least fifteen days prior to the making of the order laying out such street, avenue, highway or road or such new portion or additional width of a street, avenue, highway or road by service personally on the president or vice-president of the railroad corporation or any general officer thereof. In case of the construction of a state or county highway which deviates from the line of an existing highway across a steam surface railroad, a like notice shall be given to such railroad corporation by the state commission of highways at least fifteen days prior to the adoption of the maps, plans and specifications for such state or county highway by such commission. Such notice shall designate the tune when and place where a hearing will be given to such railroad corporation, and such railroad corporation shall have the right to be heard before the authorities of such municipal corporation upon the question of the necessity of such street, avenue, highway or road or such new portion or additional width of a street, avenue, highway or road, or before the state commission of highways in case of a state or county highway, on the question of the location of such highway. * * * ”

Counsel for respondent county stated at the hearing before the Park Commission August 20, 1925, that he did not consider the parkway a State highway, but that he did consider it a county highway. The Appellate Division, after consideration of definitions of highways in section 3, Highway Law (Cons. Laws, ch. 25), and the definition of the county road system in section 320-a, Highway Law, decided correctly, as we view it, that the Hutchinson River Parkway is not a highway, State, county or town nor a county road within the meaning of those definitions nor within the meaning of the Railroad Law. Counsel for the county on his brief in this court argues that the parkway is “a new street, avenue, highway or road” and is not “ a state or county highway ” or “a county road ” within the meaning of the Railroad Law.

The Hutchinson River Parkway does not seem to us to be “astreet, avenue, highway or road” within the meaning of section 90 of the Railroad Law. Passageways for vehicles and pedestrians v/hich under some conditions anc. according to definitions in some statutes might be regarded as streets, avenues, highways or roads are embraced within the boundaries of this parkway, yet the parkway is more inclusive than any of these things mentioned in section 90. It is a park. True it is that by definitions in the Highway Law (Section 281) and in the Transportation Corporations Law (Cons. Laws, ch. 63), section 153, subd. K, parkways are highways, but under the Westchester Park Act they are parks. By section 3 of chapter 292, Laws of 1922, the term “park” shall be deemed to include all “ public parks, parkways, beaches, open spaces and boulevards; and also entrances and approaches thereto and streets, roads, docks and bridges between, to, in, through or connecting such park or parks or parts thereof.” According to this definition, a parkway does not become a street, avenue, highway or road. An opposite result is achieved; a street or a road or a highway which is in a park or which connects two or more parks, becomes part of a park. A park is not a street, avenue, road or highway within the meaning of the Railroad Law. (Buffalo, L. & R. Ry. Co. v. Hoyer, 214 N. Y. 236, 248.) By section 14 of chapter 292, Laws of 1922, the Park Commission shall have the sole and exclusive control and management of all streets and highways and bridges within the limits of any park under its jurisdiction with the right and power to alter or discontinue any and all streets, highways and bridges, and all streets, highways. parkways or boulevards taken over by the act shall be built, maintained and kept in order and repaired by the Commission. These provisions show very clearly that streets within the boundaries of the parkway have become merged in the Westchester County Park and Parkway System and have ceased to be streets. City and village governments have lost control of some parts of their territories which once had been streets and these streets themselves have become parts of a park. The statutory definition in the Public Service Commissions Law, section 105, subdivision 3 (Cons. Laws, ch. 48), by which the term “ street ” includes a parkway, does not appear pertinent to the facts in this case. The same definition makes waters and rivers streets ” for some purposes of that statute, unless the context clearly indicates that another meaning 5 s intended. Only such parkways as do not extend beyond the limits of cities or villages can properly be inferred to be streets even within that definition. The Railroad Law must be interpreted in relation to the Westchester County Park statute in order to ascertain whether a parkway as existing by the park statute, extending many miles through rural sections of the county as well as through villages'and at least one city and including rustic lanes, shall be considered a street within the meaning of section 90. Under statutory definition in the Public Service Commissions Law if the context of that act warrants, Gravesend bay or the Hudson river is literally a street. When the Railroad Law refers to streets, who would think of Lake Ontario or New York harbor? Likewise, when the Railroad Law mentions streets and municipal corporations who would naturally think of a county? Westchester county is literally a municipal corporation (Section 3, General Corporation Law [Cons. Laws, ch. 23]; section 3, County Law [Cons. Laws, ch. 11]; section 2, General Municipal Law [Cons. Laws, ch. 24]), yet we cannot forbear to reject the idea that when the Railroad Law deals with the laying out of new streets by municipal corporations, it ever contemplated a rural parkway through several townships as a street of a municipal corporation. It must, in reason, have intended to restrict the idea of a street to its ordinarily accepted meaning. It meant conventional streets in a city or village. Only by straining at technical definitions in other statutes which statutory definitions are wholly at variance with accepted meanings and are intended to be applied in the light of common sense and in accordance with the contexts of those statutes, can an extensive parkway system of a county be dragged within the inclosure of section 90 of the Railroad Law and be transformed into a street.

Our decision in Buffalo, L. & R. Ry. Co. v. Hoyer (supra) is controlling. There the question necessary for actual determination, as stated by Judge Chase, was whether the highway known as the Common ” in the village of Middleport is a street, avenue, road or highway within the meaning of the Railroad Law, or a public park. A former owner of the land marked it Public Common ” on his map and he covenanted in deeds to individuals and to a religious society of lots abutting upon the common that the parcel designated as a public common should be faithfully devoted to that use. Sixty years later the village, which had not been in existence at the time of the execution of the deeds, assumed to accept the former owner’s covenants as offers of dedication, and its trustees adopted a resolution by which it accepted the offers and dedicated the common as a public park. For many years prior to the institution of the action, a public highway thirty feet wide had existed through the center of the common but was never in terms dedicated as a highway. On the bordering lands, trees were planted and grass grew and the place had many of the qualities of a public park. In some of the proceedings of the village trustees, the location was designated as a public park, village green and public common. We held, on these facts, that the plot dedicated and accepted as a common constitutes a public park and that neither the park itself nor the driveway across it is a street, avenue, road or highway within the meaning of the Railroad Law. The opinion expresses certain rules which are germane to the facts now before us. It says: “ Driveways in public parks are common. Driveways like walks and bridle paths are not only not inconsistent with the use of a public park as such, but they are a part of the common and ordinary means by which a park is used by the public. In the case of large parks, paths and driveways are essential to their satisfactory use. The ordinary use by the public of paths and driveways through a public park is consistent with and incidental to the purposes of the park. * * * Ordinary paths and driveways in a public park are subject to the regulations of the officers charged with the duty of superintending and caring for the park. The course of such paths and driveways may be changed from time to time, or such paths and driveways may be wholly closed as in the judgment of the officials in charge of the park may seem desirable.” The analogy between the two cases is very close. To distinguish the- principle would be difficult. Here we have a park including a driveway extending from Pelham Bay Park in New York city to a point near the Connecticut boundary. The Westchester Park Commission, by virtue of section 3, chapter 292, Laws of 1922, has control and management of it. By section 17 the Commission may make rules and ordinances governing its use and by section 14 is authorized to discontinue it. The statute under which the parkway is authorized calls it a park. Every reason upon which our former ruling is based applies to the facts now before us.

The Hutchinson River Parkway is not constructed under section 90 of the Railroad Law but is constructed under chapter 292, Laws of 1922. Its roadways and bordering grounds constitute a park and nothing else. The conclusion naturally follows that section 94 of the Railroad Law, like section 90, is also inapplicable. By its terms section 94 is made to apply only to such new passageways of travel as are constructed under the provisions of section 90. No statute defines the official body which has power to serve notice upon the railroad, give public hearing or make application to the Public Service Commission respecting this parkway. No statute provides for any proportion of the cost of constructing the crossings. Probably the attention of the.Legislature was never directed to the peculiar nature of this parkway. The hiatus in the law may speedily be filled by legislation.

The order of the Appellate Division should be reversed and the determination of the board of supervisors should-be annulled, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Crane, Andrews and Kellogg, JJ., concur; Lehman, J., not voting.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York ex rel. Erie Railroad Company, Appellant, v. State Tax Commission, Respondent. Same, Appellant, v. Same, Respondent.
    Jurisdiction — tax — certiorari — motion to quash writ of certiorari admits facts alleged — where allegations show lack of jurisdiction to assess, motion to quash should be denied —• absence of complaint on grievance day does not prevent attack for lack of jurisdiction — issue of jurisdiction may be raised at any time.
    1. Motions to quash writs of certiorari to review assessments of special franchises are deemed to admit the facts alleged in the petitions, and where, in view of such admissions, it appears that questions of fact as to the existence of special franchises were erroneously determined by the State Tax Commission and that no jurisdiction resided in the Commission to assess, the motions to quash should be denied.

      2. The absence of complaint on grievance day and of allegations of the existence of such complaint in the petitions, as provided by sections 46 and 290 of the Tax Law, does not prevent attack on the assessments as void for lack of jurisdiction.
    3. The rule reiterated that the issue of jurisdiction may be raised at any time. (People ex rel. Long Island B. B. Co. v. State Tax Comm., 231 N. Y. 221, 228, limited.)

      People ex rel. Erie R. R. Co. v. State Tax Comm., 221 App. Div. 200, reversed.

      People ex rel. Erie R. R. Co. v. State Tax Comm., 217 App. Div. 811, reversed.
    (Argued October 7, 1927;
    decided November 22, 1927.)
    Appeal in the first above-entitled proceeding from an order of the Appellate Division in the third judicial department, entered May 9, 1927, which reversed an order of Special Term denying a motion to quash a writ of certiorari to review a tax assessment and granted said motion.
    Appeal in the second above-entitled proceeding from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 4, 1926, which affirmed an order of Special Term granting a motion to quash a writ of certiorari to review a tax assessment.

      Frederick Collin, Ross M. Lovell and Marion H. Fisher for appellant.
    The filing of objections and an appearance are not a prerequisite, under the Tax Law, to the validity of the writ issued for the purpose of reviewing assessments alleged to be made without jurisdiction and void. (People ex rel. Shepard v. Griffin, 208 App. Div. 137; Rice Memorial Hospital v. Village of Tarrytown, 187 App. Div. 855; Bowe v. McNab, 11 App. Div. 386; People ex rel. Littman v. Wells, 91 App. Div. 172; People ex rel. American Thread Co. v. Feitner, 30 Misc. Rep. 641; People ex rel. Powder Co. v. Feitner, 41 App. Div. 544; Dale v. City of New York, 71 App. Div. 227; People ex rel. N. Y. C. & H. R. R. R. Co. v. Keno, 61 Misc. Rep. 345;
      People ex rel. New York Edison Co. v. Feitner, 39 Misc. Rep. 474; People ex rel. Suburban Investment Co. v. Miller, 73 Misc. Rep. 214; People ex rel. Glen Head, Realty Co. v. Garland, 72 Misc. Rep. 413; People ex rel. Strong v. O’Donnel, 47 Misc. Rep. 226; People ex rel. Chambers v. Wells, 110 App. Div. 336; Matter of Douglas, 48 Hun, 318.)

      Albert Ottinger, Attorney-General (Frederic J. Merriman of counsel), for respondent.
    The relator, in both cases, was precluded from reviewing the assessments by its failure to appear before the assessors on grievance day or file objections with the State Tax Commission fifteen days before the date of hearing as provided by sections 37 and 45-a of the Tax Law. (People ex rel. Zollikoffer v. Feitner, 34 Misc. Rep. 302; 63 App. Div. 615; 168 N. Y. 674; People ex rel. Horton v. Ferguson, 120 App. Div. 563; People ex rel. O’Neil v. Purdy, 188 App. Div. 485; People ex rel. Dexter Sulphite P. & P. Co. v. Hughes, 216 App. Div. 626; People ex rel. Powdered Milk Co. v. Rowe, 161 N. Y. Supp. 1064; People ex rel. L. I. R. R. Co. v. Tax Comm., 231 N. Y. 221; People ex rel. Mutual Union Tel. Co. v. Commissioners of Taxes, 99 N. Y. 254; People ex rel. Champlin v. Gray, 185 N. Y. 196; People ex rel. Trojan Realty Corp. v. Purdy, 174 App. Div. 702; People ex rel. W. S. R. R. Co. v. Adams, 125 N. Y. 471.)
   O’Brien, J.

Relator enjoys special franchises in New-burgh and in Jamestown which have been assessed for purposes of taxation. One petition upon which an order of certiorari to review assessments was granted alleges that relator’s right to occupy the crossing at South Water street in Newburgh is not a special franchise and that the assessment at that location is. illegal, erroneous and incorrect. The ground alleged for such illegality is that at the time the railroad and right of way were constructed, that street was not a public highway and was not opened as such until many years after the construction of the railroad. The other petition alleges that relator’s right to occupy the crossings and bridges at Chautauqua outlet and at West Second street in Jamestown do not constitute special franchises for the reason that the bed of Chautauqua outlet is owned by private proprietors and is not a public navigable water and that the occupancy by the railroad at West Second street is a prior occupancy. The motions to quash the writs are deemed to admit the facts alleged in the petitions and are based upon the fact that relator failed to comply with the provisions of section 45-a of the Tax Law (Cons. Laws, ch. 60), and neglected to appear on grievance day and file objections to the assessments. Accepting, for the purposes of the motion to quash, the allegations concerning South Water street in Newburgh and West Second street and Chautauqua outlet in Jamestown, no special franchises existed at these locations and no jurisdiction resided in the Commission to assess. (People ex rel. N. Y. C. R. R. Co. v. Woodbury, 203 N. Y. 167; People ex rel. W. N. Y. & P. Ry. Co. v. Tax Commission, 244 N. Y. 596.) In the absence of complaint on grievance day and of allegations of the existence of such complaint in the petitions as provided by sections 46 and 290 of the Tax Law, the question remains whether relator may attack the assessments as void for lack of jurisdiction,

We think that such an attack must be sustained. Except for an expression in People ex rel. Long Island R. R. Co. v. State Tax Commission (231 N. Y. 221, 228) no doubt could exist. When that expression is considered in relation to the unbroken line of precedents by which this court has uniformly held for more than half a century that the issue of jurisdiction can be raised at any time, the statement in that opinion cannot be accepted as an actual decision overruling the doctrine so long and consistently expounded by us. The jurisdiction of the Commission extends only to assessment of something which the law makes assessable. Whether the thing is assessable depends upon facts. If the facts are that the railroad occupied the locations at South Water street in Newburgh and at West Second street in Jamestown before these streets were opened as public highways and that Chautauqua outlet is not a public navigable water, then the law is clear that no special franchises existed at these crossings and that nothing was there assessable. (Section 2, subd. 6, Tax Law.) The Commission investigated the facts and must be deemed to have decided that the streets became public highways before occupancy by the railroad and that the stream was public and navigable. In view of the admissions made by the motions to quash, these questions of fact have been incorrectly decided by the Commission and, accordingly, there was no jurisdiction to assess. The Commission erroneously determined the existence of facts essential to its jurisdiction and, therefore, its acts in assessing property exempt from assessment were void. (Nat. Bank v. City of Elmira, 53 N. Y. 49; Darwin v. Strickland, 57 N. Y. 492; Matter of N. Y. C. Protectory, 77 N. Y. 342; Matter of McLean v. Jephson, 123 N. Y. 142; Ogden City v. Armstrong, 168 U. S. 224; Elmhurst Fire Co. v. City of New York, 213 N. Y. 87.) In the case last cited we reaffirmed the rule relating to assessors’ jurisdiction in this language: “ In making the determination they act judicially and within the sphere of their duty, but their decision is not conclusive as to their jurisdiction. They were officers clothed by statute with limited powers, and their decision on a question determinative of their authority is not final and may be attacked collaterally. When a statute, as in this case, leaves to the assessing officers questions of a jurisdictional character it is well settled that their decision does not preclude parties aggrieved from resorting to judicial remedies. When their authority depends upon the existence of some fact, which they erroneously determine to exist, their acts pursuant to it are void.”

In the Jamestown case the order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. In the Newburgh case the order of the Appellate Division and that of the Special Term should be reversed, and the motion to quash denied, with costs in all courts.

Cardozo, Ch. J., Pound, Crane, Andrews and Lehman, JJ., concur; Kellogg, J., not sitting.

Ordered accordingly.


author: Crane, J.

text:
    Max E. Klinkenstein, Appellant, v. Third Avenue Railway Company, Respondent.
    Negligence — motor vehicles — illegal operation of bus line — damage to bus from collision with street car — illegal operation not a bar to recovery unless it aided in causing accident — where bus was legally in street and accident would have happened, in any event, failure to obtain proper authority to carry passengers not a bar to recovery — section 1630 of Penal Law not applicable.
    1. Whether the failure of plaintiff to obtain the proper consents and authority to operate a bus line prevents a recovery for damage to his bus, from being struck by one of defendant’s street ears, depends upon whether such failure caused or aided in causing the accident; whether there be a logical connection, a reasonable sequence of events between the lack of authority to operate he bus line and the collision.
    2. Where, therefore, in an action to recover such damages, it appears that the bus was legally in the street, the vehicle having been properly licensed and the chauffeur duly authorized to operate it, and that the illegality consisted only in carrying passengers for hire, and that failure to obtain permission to carry passengers had no connection with the collision but that the accident would have happened and defendant’s negligence been the occasion if the bus had been licensed or had been carrying merchandise, a dismissal of the complaint is error.
    3. Section 1530 of the Penal Law does not apply to the situation. It cannot be said that the bus, within the meaning of that section, became a public nuisance, was interfering with and obstructing the streets when it was legally on the street, although used for an unauthorized purpose.

      Klinkenstein v. Third Avenue Ry. Go., 216 App. Div. 187, reversed.
    (Argued October 7, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 19, 1926, which reversed a determination of the Appellate Term affirming a judgment of the Municipal Court of the City of New York in favor of plaintiff and directed a dismissal of the complaint.

      Isidore Cohen for appellant.
    While the operation of plaintiff’s bus was not in strict accordance with the provisions of statute, such operation did not constitute the bus a public nuisance, and it was not a trespasser on the highway. (Johnson v. City of New York, 186 N. Y. 130; People v. Met. Tel Co., 11 Abb. [N. C.] 304; Conklin v. Phoenix Mills, 62 Barb. 299.) There is no causal connection between the plaintiff’s violation of law and the defendant’s negligent act, and defendant was, therefore, liable to the plaintiff in spite of plaintiff’s illegal act. (Corbett v. Scott, 243 N. Y. 66; Brown v. Shyne, 242 N. Y. 176; Martin v. Herzog, 228 N. Y. 168; Platz v. City of Cohoes, 89 N. Y. 219; Clark v. Doolittle, 205 App. Div. 697; Hall v. Hepp, 210 App. Div. 149; Huff v. City of New York, 202 App. Div. 425; Keller v. Erie R. R. Co., 183 N. Y. 76; Johnson v. City of New York, 186 N. Y. 149.)

      August P. Klein and Joseph E. Kinsley for Audubon Transportation Company, amicus curiæ.

    The plaintiff’s motor bus was not a public nuisance as a matter of law. (Corbett v. Scott, 243 N. Y. 66; Brown v. Shyne, 242 N. Y. 176; Clark v. Doolittle, 205 App. Div. 697; Platz v. City of Cohoes, 89 N. Y. 219.) The operation of the plaintiff’s motor bus in violation of the statutes was not the proximate cause of and in no way contributed to the collision. (Audubon Transportation Co. v. Yonkers R. R. Co., 126 Misc. Rep. 180; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Egan v. Thompson Starrett Co., 209 N. Y. 110; Amberg v. Kinley, 214 N. Y. 531; Karpeles v. Heine, 227 N. Y. 74; Moore v. Hart, 171 Ky. 725; Marland Ref. Co. v. Duffy, 94 Okla. 16; Stovall v. Cory Highlands Land Co., 189 Ala. 576; Birmingham R., Light & P. Co. v. Ætna Acc. & Liability Co., 184 Ala. 601; Arizona Copper Co. v. Garcia, 214 Pac. Rep. 317.) The plaintiff’s motor bus was not a trespasser on the highway. (Speight v. Simonsen, 115 Ore. 618; Gilman v. Central Vermont R. Co., 93 Vt. 340; Moore v. Hart, 171 Ky. 725; Marland Ref. Co. v. Duffy, 94 Okla. 16; Armstead v. Lounsberry, 129 Minn. 34.)

      Alfred T. Davison, Frederic W. Frost and Addison B. Scoville for respondent.
    As plaintiff was concededly operating his bus line without either a franchise or a certificate of convenience and necessity, such operation was illegal. (Brooklyn City R. Co. v. Whalen, 191 App. Div. 737; 229 N. Y. 570; Hedges v. Hylan, 192 App. Div. 959; Belt Line Railway Corporation v. City of New York, 118 Misc. Rep. 665; Huff & Lee v. City of New York, 202 App. Div. 425; Kingsbridge Railway Co. & Third Avenue Ry. Co. v. City of New York, 204 App. Div. 369; Huff & Lee v. Manhattan Transit Co., 119 Misc. Rep. 814; 209 App. Div. 904; Public Service Comm. v. Mount Vernon Taxicab Co., 101 Misc. Rep. 497; Public Service Comm. v. Hurtgan, 91 Misc. Rep. 432.) The plaintiff’s bus, being operated illegally in the public streets, constituted a public nuisance as matter of law. (People ex rel. Judge v. Hylan, 200 App. Div. 430; Huff & Lee v. City of New York, 202 App. Div. 425; McCloskey v. Buckley, 223 N. Y. 187; Lyman v. Village of Potsdam, 228 N. Y. 398.) There was a direct or causal connection between plaintiff’s illegal operation of the bus and the accident resulting in its injury and plaintiff is not entitled to recover in the absence of proof of willful or wanton negligence on the part of the defendant. (Clark v. Doolittle, 205 App. Div. 697; Hall v. Hepp, 210 App. Div. 149; Corbett v. Scott, 243 N. Y. 66; Dudley v. Northampton Street Ry. Co., 202 Mass. 443; Chase v. New York Central R. Co., 208 Mass. 137; Holden v. McGillicuddy, 215 Mass. 563; Dean v. Boston Elevated Ry. Co., 217 Mass. 495; Matter of Dobosen v. Mescall, 205 App. Div. 265; Public Service Comm. v. Booth, 170 App. Div. 590; Brooklyn City R. R. Co. v. Whalen, 111 Misc. Rep. 348; 191 App. Div. 737; 229 N. Y. 570.) The plaintiff, in operating a public nuisance, in the streets, was a trespasser upon the city streets and the defendant owed him no duty other than to refrain from willful, wanton or reckless injury. (Matter of Dobosen v. Mescall, 205 App. Div. 265; People ex rel. Met. St. Ry. Co. v. Tax Comrs., 174 N. Y. 417; People v. Woodbury, 203 N. Y. 167; People v. Gourley, 198 N. Y. 486; Lord v. Equitable Life Assur. Soc., 194 N. Y. 212; City of New York v. Interborough R. T. Co., 53 Misc. Rep. 126; People v. O’Brien, 111 N. Y. 1; Parker v. Elmira, C. & N. R. R. Co., 165 N. Y. 274; Knickerbocker Trust Co. v. T., W. P. & M. R. Co., 139 App. Div. 305; Thomp. on Neg. §§ 205, 206; Sutton v. New York C. & H. R. R. R. Co., 66 N. Y. 243; Johnson v. New York C. & H. R. R. R. Co., 173 N. Y. 79; Magar v. Hammond, 183 N. Y. 387.)
   Crane, J.

This appeal comes up from the Municipal Court by permission of the Appellate Division, which has certified that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals.

The plaintiff was the owner of an automobile passenger bus which was being operated for hire along New Chambers street, across Park row, in the borough of Manhattan, city of New York. While crossing it was struck by one of the defendant’s cars, running through Park row. This. action was brought to recover for the damage done to the bus.

The plaintiff was operating this bus line under a permit from the Department of Plant and Structures of the city of New York. This, however, was not sufficient to legalize the operation. The Public Service Commission had not determined that such bus route was necessary or convenient to the public, and had not given its approval to the operation, pursuant to section 53 of the Public Service Commission Law (Cons. Laws, ch. 48). Neither had this common carrier, so designated by section 65 of the Transportation Corporations Law (Cons. Laws, ch. 63), procured the local consent or franchise required by section 66 of that law, and sections 74 and 1458 of the Greater New York charter. The plaintiff was, therefore, illegally carrying on the business of a common carrier of passengers for hire over the streets of New York. For this reason the Appellate Division determined that the plaintiff was a trespasser upon the streets, and that the defendant owed him no duty other than not to willfully and recklessly injure his property; that it was not hable for the damages caused to the bus through ordinary negligence, or the failure to exercise ordinary care.

Whether the failure of the plaintiff to obtain the proper consents and authority to operate the bus line prevents the recovery of damages for negligence depends upon whether such failure caused or aided in causing the accident; whether there be a connection, a logical connection, a reasonable sequence of events between the lack of authority to operate the bus line and the collision.

Some other facts must be considered. The plaintiff’s bus°was not illegally in the street. The illegality did not consist in operating an automobile bus, as the vehicle had been properly licensed and the chauffeur duly authorized to operate it. The illegality consisted not in the operation and the use of the streets, but in the carrying of passengers for hire; it was the use to which the vehicle was put and not the vehicle itself which was unauthorized upon the streets of New York. Therefore, if the bus had been carrying goods or had been used for other purposes than carrying passengers, the accident would have happened just the same. Again, if the plaintiff had been running the passenger bus legally, had all the consents required by law, the accident likewise would have happened. Thus we see that there is no connection whatever between the failure to obtain the permission to carry passengers for hire and the collision due to the negligence of the defendant’s motorman. Of course it can be said that if the plaintiff could not have carried passengers for hire, he probably would not have operated the bus line. Of course if the bus had not been there, it would not have been struck. It was there, it was damaged, as we must assume for this case, through the negligence of the defendant, and the question is not what caused it to be there, but what, if anything, on the plaintiff’s part, contributed at the time in causing the collision. It is the accident, and not the mere presence of the bus that we must deal with. We do not see how the failure to have a license to carry passengers has anything to do with the cause of the accident. The accident would have happened and the defendant’s negligence would have been the occasion —no more and no less, if the use had been licensed or the bus had been carrying articles of merchandise.

The Public Service Commission Law, in section 56, provides what shall happen in case of the failure to comply with any of its provisions. The public carrier shall forfeit a sum not to exceed $5,000 for each -offense, and the person who procures or aids the common carrier in the violation shall be guilty of a misdemeanor. These penalties have been prescribed by the Legislature; the courts must not add others. It is only in the case where a violation of a statute or an ordinance has such a direct connection with the injury which has been received as to form and be a part of the act causing the injury that the law goes further and may in a proper case bar recovery for the injury done. (Corbett v. Scott, 243 N. Y. 66; Brown v. Shyne, 242 N. Y. 176.) As we frequently express it in legal phraseology, the provisions of the Public Service Commission Law and of the Greater New York charter, above referred to, relating to franchises for common carriers were passed in the interest of the public, and not for the direct safety and welfare of the person on the street, like the defendant or the defendant’s motorman.

This application of the law has likewise been made in other States. (Spencer v. Phillips & Taylor, 219 Mich. 353; Armstead v. Lounsberry, 129 Minn. 34; Derr v. Chicago, M. & St. P. Ry. Co., 163 Wis. 234; Cobb v. Cumberland County Power & Light Co., 117 Me. 455; Muller v. West Jersey & S. R. R. Co., 99 N. J. 186; Wolford v. City of Grinnell, 179 Ia. 689; Marquis v. Messier, 39 R. I. 563; Gilman v. Central Vermont Ry. Co., 93 Vt. 340; Switzer v. Sherwood, 80 Wash. 19.)

We do not think that section 1530 of the Penal Law, upon which some emphasis has been laid in the courts below, applies to this situation. It cannot be said that the bus, within the meaning of that section, became a public nuisance, was interfering with and obstructing the streets when it was legally on the street, although used for an unauthorized purpose.

For these reasons the order of the Appellate Division should be reversed and the determination of the Appellate Term affirmed, with costs in the Appellate Division and in this court.

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

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Charles Rizzo, Appellant, Impleaded with Others.
    Crimes — attempt to commit robbery — construction of section 2 of Penal Law defining attempt to commit crime — defendants who planned intended robbery and started to look for victim but never reached him improperly convicted of attempt to commit robbery. .
    1. In construing section 2 of the Penal Law, providing that “an act done with intent to commit a crime, and tending but failing to effect its commission, is ‘ an attempt to commit that crime,’ ” the law has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference,
    2. Defendants, therefore, who had planned and started in an automobile to commit a robbery but were arrested before they had found or reached the presence of the person they intended to rob, were not guilty of' the crime of attempt to commit robbery in the first degree, and their conviction for that crime was improper. It cannot be said that their acts came so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference.

      People v. Rizzo, 221 App. Div. 353, reversed.
    (Argued October 17, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed a judgment of the Bronx County Court entered upon a verdict convicting the defendant of the crime of attempted robbery in the first degree.

      James F. Donnelly, Mark Eisner and Merwin Lewis for appellant.
    The evidence failed to establish the crime of attempted robbery. (People v. Sullivan, 173 N. Y. 122; People v. Werblow, 241N. Y. 55; People v. Sobieskoda, 235 N. Y. 411; People v. Collins, 234 N. Y. 355; Bishop Crim. Law [9th ed.], §§ 770, 771; Booher v. State, 156 Ind. 435; People v. Moran, 123 N. Y. 254; People v. Sullivan, 173 N. Y. 122; Brennon v. State, 25 Ind. 403; Hall v. People, 171 Ill. 540; McCloskey v. People, 5 Park. Cr. Rep. 299; People v. Hall, 6 Park. Cr. Rep. 642.)

      John E. McGeehan, District Attorney (George B. De Luca, I. J. P. Adlerman and Herman J. Fleiderblum of counsel), for respondent.
    The evidence was sufficient to establish an attempted robbery. (People v. Gardner, 144 N. Y. 119; People v. Spolasco, 33 Misc. Rep. 22; People v. Moran, 123 N. Y. 254; People v. Sullivan, 173 N. Y. 122; Commonwealth v. Peaslee, 177 Mass. 267; State v. Hurley, 64 Atl. Rep. 78; People v. Stites, 75 Cal. 570; U. S. v. Stephens, 12 Fed. Rep. 52; People v. Bush, 4 Hill, 133; McDermott v. People, 5 Park. Cr. Rep. 102; People v. Lawton, 56 Barb. 126; People v. O’Connell, 60 Hun, 109.)
   Crane, J.

The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of a crime, as defined by our law, is, however, another matter. He has been convicted of an attempt to commit the crime of robbery in the first degree and sentenced to State’s prison. There is no. doubt that he had the intention to commit robbery if he got the chance. An examination, however, of the facts is necessary to determine whether his acts were in preparation to commit the crime if the opportunity offered, or constituted a crime in itself, known to our law as an attempt to commit robbery in the first degree. Charles Rizzo, the defendant, appellant, with three others, Anthony J. Dorio, Thomas Milo and John Thomasello, on January 14th planned to rob one Charles Rao of a payroll valued at about $1,200 which he was to carry from the bank for the United Lathing Company. These defendants, two of whom had firearms, started out in an automobile, looking for Rao or the man who had the payroll on that day. Rizzo claimed to be able to identify the man and was to point him out to the others who were to do the actual holding up. The four rode about in their car looldng for Rao. They went to the bank from which he was supposed to get the money and to various buildings being constructed by the United Lathing Company. At last they came to One Hundred and Eightieth street and Morris Park avenue. By this time they were watched and followed by two police officers. As Rizzo jumped out of the car and ran into the building all four were arrested. The defendant was taken out from the building in which he was hiding. Neither Rao nor a man named Previti, who was also supposed to carry a payroll, were at the place at the time of the arrest. The defendants had not found or seen the man they intended to rob; no person with a payroll was at any of the places where they had stopped and no one had been pointed out or identified by Rizzo. The four men intended to rob the payroll man, whoever he was; they were looking for him, but they had not seen or discovered him up to the time they were arrested.

Does this constitute the crime of an attempt to commit robbery in the first degree? The Penal Law, section 2, prescribes, An act, done with intent to commit a crime, and tending but failing to effect its commission, is ' an attempt to commit that crime.’ ” The word “ tending ” is very indefinite. It is perfectly evident that there will arise differences of opinion as to whether an act in a given case is one tending to commit a crime. “ Tending ” means to exert activity in a particular direction. Any act in preparation to commit a crime may be said to have a tendency towards its accomplishment. The procuring of the automobile, searching the streets looking for the desired victim, were in reality acts tending toward the commission of the proposed crime. The law, however, has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law must be practical, and, therefore, considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference. The cases which have been before the courts express this idea in different language, but the idea remains the same. The act or acts must come or advance very near to the accomplishment of the intended crime. In People v. Mills (178 N. Y. 274, 284) it was said: “ Felonious intent alone is not enough, but there must be an overt act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.” In Hyde v. U. S. (225 U. S. 347) it was stated that the act amounts to an attempt when it is so near to the result that the danger of success is very great. “ There must be dangerous proximity to success.” Halsbury in his “ Laws of England” (Vol. IX, p. 259) says: “An act, in order to be a criminal attempt, must be immediately, and not remotely, connected with and directly tending to the commission of an offence.” Commonwealth v. Peaslee (177 Mass. 267) refers to the acts constituting an attempt as coming very near to the accomplishment of the crime.

The method of committing or attempting crime varies in each case so that the difficulty, if any, is not with this rule of law regarding an attempt, which is well understood, but with its application to the facts. As I have said before, minds differ over proximity and the nearness of the approach. (People v. Collins, 234 N. Y. 355; People v. Sobieskoda, 235 N. Y. 411; People v. Werblow, 241 N. Y. 55.)

How shall we apply this rule of immediate nearness to this case? The defendants were looking for the payroll man to rob him of his money. This is the charge in the indictment. Robbery is defined in section 2120 of the Penal Law as the unlawful talcing of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to bis person; ” and it is made robbery in the first degree by section 2124 when committed by a person aided by accomplices actually present. To constitute the crime of robbery the money must have been taken from Rao by means of force or violence, or through fear. The crime of attempt to commit robbery was committed if these defendants did an act tending to the commission of this robbery. Did the acts above describe come dangerously near to the talcing of Rao’s property? Did the acts come so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference? Rao was not found; the defendants were still looking for him; no attempt to rob him could be made, at least until he came in sight; he-was not in the building at One Hundred and Eightieth street and Morris Park avenue. There was no man there with the payroll for the United Lathing Company whom these defendants could rob. Apparently no money had been drawn from the bank for the payroll by anybody at the time of the arrest. In a word, these defendants had planned to commit a crime and were looking around the city for an opportunity to commit it, but the opportunity fortunately never came. Men would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was. Neither would a man be guilty of an- attempt to commit murder if he armed himself and started out to find, the person whom he had planned to kill but could not find him. So here these defendants were not guilty of an attempt to commit robbery in the first degree when they had not found or reached the presence of the person they intended to rob. (People v. Sullivan, 173 N. Y. 122, 135.)

For these reasons, the judgment of conviction of this defendant, appellant, must be reversed and a new trial granted.

A very strange situation has arisen in this case. I called attention to the four defendants who were convicted of this crime of an attempt to commit robbery in the first degree. They were all tried together upon the same evidence, and jointly convicted, and all sentenced to State’s prison for varying terms. Rizzo was the only one of the four to appeal to the Appellate Division and to this court. His conviction was affirmed by the Appellate Division by a divided court, two of the justices dissenting, and we have now held that he was not guilty of the crime charged. If he were not guilty, neither were the other three. As the others, however, did not appeal, there is no remedy for them through the court; their judgments stand, and they must serve their sentences. Tins of course is a situation which must in all fairness be met in some way. Two of these men were guilty of the crime of carrying weapons, pistols, contrary to law, for which they could be convicted. Two of them-, John Thomasello and Thomas Milo, had also been previously convicted, which may have had something to do with their neglect to appeal. However, the law would fail in its function and its purpose if it permitted these three men whoever or whatever they are to serve a sentence for a crime which the courts subsequently found and declared had not been committed. We, therefore, suggest to the district attorney of Bronx county that he bring the cases of these three men to the attention of the Governor to be dealt with as to him seems proper in the light of this opinion.

The judgment of the Appellate Division and that of the County Court should be reversed and a new trial ordered.

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

Judgment accordingly.


author: Kellogg, J.

text:
    Morris Rosenwasser, Respondent, v. Blyn Shoes, Inc., et al., Appellants.
    Contract — rescission — money had and received — purchaser of chattels may not for breach of collateral promise elect to rescind and recover purchase price — stock of corporation purchased, paid for and delivered — purchaser may not maintain action for return of purchase money because officers of corporation refused to comply with their promise which induced him to purchase.
    1. An action for money had and received is available to a vendee, whether of chattels or real estate, to recover the sums paid pursuant to the contract of sale, where there is a total failure on the part of the vendor to perform, but independently of a statute conferring the right, a vendee of warranted chattels may not, for the breach of a collateral promise of warranty, elect to rescind the contract and recover the purchase price paid. Rescission, and a recovery of moneys paid, may not be had where the default is in respect to a contract provision which is merely subsidiary and which does not go to the entire consideration.
    2. A complaint does not state a cause of action for the return of moneys paid for stock in a corporation which, as limited by the bill of particulars, shows that the corporation sold stock to the plaintiff at his request, the price was paid and the stock delivered, that the corporation made no promise in connection therewith, but that the letter from plaintiff offering to purchase the stock contained a stipulation that the individual defendants, officers and directors of the corporation, should agree to favor a corporation, with which plaintiff was connected, with orders for merchandise, and that subsequent to the sale the individual defendants refused to comply with their promise so to do. Plaintiff may not rescind the completed transaction and have a return of the moneys paid merely because the individual defendants have failed to perform their promise. (Mahon v. City of Columbus, 58 Miss. 310, Callanan v. K., A. C. & L. C. R. R. Co., 199 N. Y. 268, distinguished.)

      Rosenwasser v. Blyn Shoes, Inc., 220 App. Div. 829, reversed.
    (Argued October 10, 1927,
    decided November 22, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed an order of Special Term denying a motion by defendant for judgment on the pleadings.
    The following questions were certified:
    “1. Does the complaint herein, as limited by the bill of particulars, state facts sufficient to constitute a cause of action?
    “ 2. Should the defendants’ motion, made pursuant to rule 112 of the Rules of Civil Practice, for judgment on the pleadings in favor of the defendants and against the plaintiff as demanded in the answer, and for such other, further and different relief as to this court might seem just and proper, have been granted? ”

      Benjamin Bernstein and Max J. Wolff for appellants.
    The letters contained in plaintiff’s bill of particulars show that there was no definite, binding, enforcible agreement with respect to the purchase of shoes by the defendants from the plaintiff or Rosenwasser Bros., Inc., and no such agreement was intended. (St. Regis Paper Co. v. Hubbs & Hastings P. Co., 235 N. Y. 30; Ansorge v. Kane, 244 N. Y. 395; Blackwell v. Glidden Co., 208 App. Div. 317; Buckmaster v. Consumers Ice Co., 5 Daly, 313; United Press v. New York Press Co., 164 N. Y. 406; Sun Printing & Publishing Assn. v. Remington Paper & Power Co., Inc., 235 N. Y. 338; Des Moines v. Water Works Co., 95 Iowa, 348; Gilston & Meyenberg v. Sigmund, 27 Md. 334; Schlegel Mfg. Co. v. Cooper’s Glue Factory, 231 N. Y. 459; Plant Mfg. Corp. v. Renner, 214 App. Div. 606.) The alleged breach, if any, is of a separate executory contract with the individual defendants, and it does not entitle the plaintiff to rescind the executed contract of sale made with the corporate defendant; or even if the provision claimed to have been broken be deemed a part of the contract of sale made with the corporate defendant, it is, nevertheless, a severable, independent and immaterial part of the contract which, so far as appears from the complaint, has caused the plaintiff no injury and is not such a breach as will entitle the plaintiff to rescind the executed contract of sale. (Berry Harvester Co. v. Wood Co., 152 N. Y. 540; Ming v. Corbin, 142 N. Y. 334; Clark v. West, 127 App. Div. 123; Catlin v. Tobias, 26 N. Y. 217; Tipton v. Feitner, 20 N. Y. 423; Portfolio v. Reubin, 233 N. Y. 339; Rosenthal Paper Co. v. Nat. Clothing Box & Paper Co., 226 N. Y. 313; De Kay v. Bliss, 120 N. Y. 91; Gottberg v. Park Terrace Co., 168 App. Div. 800; 222 N. Y. 600; Clark Contr. Co. v. City of New York, 229 N. Y. 413; Schank v. Schuchman, 212 N. Y. 352.)

      Robert H. Elder and Meyer Kraushaar for respondent.
    Since the breach by defendants was not of a promise which was merely incidental or subordinate to the main purpose of the contract, rescission was properly demanded by plaintiff. (Clark Contr. Co. v. City of New York, 229 N. Y. 413; Delaware Trust Co. v. Calm, 195 N. Y. 231.)
   Kellogg, J.

The complaint, as limited by the bill of particulars served, sets forth the following state of facts: The defendant Blyn Shoes, Inc., was a corporation, and the defendants Jacob Blyn and Henry Blyn were stockholders, officers and directors thereof. The defendants were engaged in the general business of selling shoes. The plaintiff was engaged in the business of manufacturing shoes. Rosenwasser Bros., Inc., a corporation controlled by the plaintiff Morris Rosenwasser, was also engaged in the manufacture of shoes. On April 23, 1924, the corporation Blyn Shoes, Inc., wrote the corporation Rosenwasser Bros., Inc., stating that it would be very pleased if the latter became a purchaser of a block of stock in the former, that the former would give to the latter representation upon its board of directors, and would be glad to favor it, under certain conditions, with its business. A letter, to be signed by Rosenwasser Bros, and returned to Blyn Shoes, Inc., was inclosed. This letter contained an offer to purchase a block of stock at a price stated and asserted the understanding of the proposed writer that it would be favored with the business of Blyn Shoes, Inc., under the conditions specified in the letter to which it was to be an answer. The letter was never signed by Rosenwasser Bros., Inc., and was not returned to Blyn Shoes, Inc. However, on April 25, 1924, the individual Morris Rosenwasser, the plaintiff herein, wrote Mr. Civic, the agent of the defendants, offering to purchase, at the price of $8 per share, 12,500 shares of the common stock of Blyn Shoes, Inc., and to make payment therefor on or about June 30, 1924. The letter contained the promise of the writer not to sell the stock to be purchased without the consent of Jacob Blyn and Henry Blyn, provided the latter would include the writer’s stock in any sale made by them of the control of the corporation. It also contained the following stipulation: “ It is also agreed between Messrs. Jacob and Henry Blyn that I will be accorded representation on the Board of Directors to the extent of two members, and that they will favor my company, Rosenwasser Bros., Inc., with their business, whatever merchandise we are in a position to make up which will equal in style, quality, workmanship and price, that they are offered by other manufacturers, and in general, cooperate in every way possible.” This stipulation was worded in substantially the same phraseology as was the proposal of Blyn Shoes, Inc., contained in its letter to Rosenwasser Bros., Inc., to favor the latter with its business. On or about July 1, 1924, Blyn Shoes, Inc., issued and delivered to the plaintiff, Morris Rosenwasser, 12,500 shares of its common stock, and Morris Rosenwasser paid Blyn Shoes, Inc., $100,000 therefor. Subsequently to the sale the individual defendants refused to comply with their promise, made to the individual plaintiff, to favor his company, Rosenwasser Bros., Inc., with their business. The plaintiff, on the sixth day of February, 1925, tendered to the defendants the certificates of stock received by him and demanded the return of the sum of $100,000 paid therefor.

The question arises whether the complaint, which sets forth these facts, sufficiently states a. cause of action for the return of the purchase moneys paid.

It is well established in this jurisdiction that an action for money had and received is available to a vendee, whether of chattels or real estate, to recover the sums paid pursuant to the contract of sale, where there is a total failure on the part of the vendor to perform. (Lawrence v. Taylor, 5 Hill, 107; Murray v. Richards, 1 Wendell, 58; Gillet v. Maynard, 5 Johns. 85; Raymond v. Bearnard, 12 Johns. 274; Wheeler v. Board, 12 Johns. 363; Putnam v. Westcott, 19 Johns. 73; Chapman v. City of Brooklyn, 40 N. Y. 372; Cockcroft v. Muller, 71 N. Y. 367; Taylor v. Goelet, 208 N. Y. 253.) It is equally well settled that, independently of a statute conferring the right, a vendee of warranted chattels may not, for the breach of a collateral promise of warranty, elect to rescind the contract and recover the purchase price paid. (Voorhees v. Earl, 2 Hill, 288; Muller v. Eno, 14 N. Y. 597; Rust v. Eckler, 41 N. Y. 488; Day v. Pool, 52 N. Y. 416.) Instances may arise where an action to rescind a contract and recover the moneys paid is maintainable by one contracting party on account of a default in performance by the other party, although the latter, in respect to certain minor provisions of the contract, may have performed. (Mahon v. City of Columbus, 58 Miss. 310; Callanan v. K., A. C. & L. C. R. R. Co., 199 N. Y. 268.) In the Mahon case a city leased its water works to an individual, who contracted to keep all the machinery of the works in good order, to maintain a supply of water in the reservoirs and, upon an alarm of fire, to put the pumps at work to extinguish the conflagration. The lessee defaulted in respect to all such promises, so that the city was virtually without fire protection. Relief by rescission was granted. It was apparent that the paramount purpose of the lessor, in entering into the contract, was to procure the maintenance of a water supply, sufficient at all times for fire purposes, through the agency of a lessee, at a minimum of cost to itself. In contrast to the achievement of that object, the payment of a rental was of the slightest importance. To all intents and purposes, therefore, the contract had totally failed. Moreover, an action for damages would not have afforded just compensation to the city for the risk occasioned by the lessee’s default. In the Callanan case the situation was much the same. There the owners of stock in a railroad corporation parted with their stock control upon the faith of promises by the purchasers that they would reconstruct and extend the railway. The purchasers wholly failed to perform these essential promises. The court granted relief by rescission. It said: “ There was such a failure to perform the substance of the contract as to defeat its purpose in nearly every essential respect.” The court also remarked that in an action for damages the injuries done could not be estimated with precision. In these cases the default, if not quite total, approximated totality. The cases are authority for the proposition that the default must be such that it destroys the essential objects of the contract. It has likewise been said that rescission, and a recovery of moneys paid, may not be had where the default is in respect to a contract provision which is merely “ subsidiary ” and “ which does not go to the entire consideration” (Johnson Forge Co. v. Leonard & Co., 3 Penn. [Del.] 342); that the “ breach of an independent covenant, a covenant which does not go to the whole consideration of the contract and is subordinate and incidental to its main purpose,” is not sufficient (Kauffman v. Raeder, 108 Fed. Rep. 171); that “the object of the contract must have been defeated or rendered unattainable” by a default in respect to a matter “ of the first importance to the accomplishment of the object of the contract ” (Selby v. Hutchinson, 4 Gill. [Ill.], p. 319); that the default must be “ destructive of the objects of the contract ” (Mahon v. City of Columbus, supra); that it must be “so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract ” and that there must be “ a breach going to the root of the contract.” (Callanan v. K., A. C. & L. C. R. R. Co., supra.)

The cases of Hunt v. Silk (5 East, 449); DeKay v. Bliss (120 N. Y. 91) and Gotterberg v. Park Terrace Co. (168 App. Div. 800; affd., 222 N. Y. 600) disclose facts which seem to us more closely to resemble the facts involved in the case now under consideration than those in any other case which has been called to our attention. In the Hunt case a lessor agreed with the proposed lessee that he would make certain alterations in the premises leased and place them in complete repair. The lessee paid the stipulated rental and entered into possession. Thereafter the lessor neglected to make the stipulated alterations and repairs. It was held that the lessee was not entitled to recover the money paid in an action for money had and received. In the DeKay case the defendant, the owner of certain real estate, upon which there were buildings in the process of erection, contracted to convey the same to a trustee, for the benefit of the plaintiff. The defendant also agreed, as a part of the consideration furnished by him, that he would, after the conclusion of the sale, complete the erection of the buildings at his own expense. The purchase price was paid and the deed was delivered. Thereafter the defendant refused to complete the buildings. In an action brought to procure the cancellation of the contract because of defendant’s default, to recover the moneys paid, and to cancel the mortgages given on account of the purchase, the plaintiff was denied relief. In the Gotterberg case the defendant contracted to sell real estate to the plaintiff and further agreed that should the plaintiff within one year desire to sell the premises, he would sell the same for her at a profit of at least ten per cent. The plaintiff paid the purchase price and took a deed of the premises. The court held that the plaintiff was not entitled to a cancellation of the deed and a return of the moneys paid. It said: It was an agreement to do something in the future, and if defendant has failed to carry out its agreement, then plaintiff’s remedy is to recover damages for a breach of the contract.”

In the case at bar, Blyn Shoes, Inc., sold stock to the individual Morris Rosenwasser. The money was paid and the stock was delivered. As between buyer and seller the transaction was fully executed and no promises remained to be performed. Indeed it does not appear that Blyn Shoes, Inc., made any promise whatsoever. It merely accepted the offer of the plaintiff, Morris Rosenwasser, for the purchase of its stock, by issuing the stock to him. Morris Rosenwasser demanded a promise, not from the seller Blyn Shoes, Inc., but from the individual defendants, that they would favor, not Morris Rosenwasser, but Rosenwasser Bros., Inc., a corporation controlled by him, with the business of the defendants. May Morris Rosenwasser, the plaintiff herein, rescind the completed transaction, and have a return of the moneys paid for the sfock, because the individual defendants have failed to perform their promise? We think not, for several reasons. 1. The plaintiff bases his claim upon a failure of consideration, not on the part of the seller of the stock, but on the part of individuals who were strangers to the sale. 2. The default complained of was in respect to a stipulation wholly collateral to the essential bargain of purchase and sale. The unperformed stipulation was subordinate and incidental to the main purpose of the contract.” By its non-performaqce the object of the contract was in nowise defeated or rendered unattainable.” The default did not “ tend to defeat the object of the parties in making the contract.” Nor was it a “ breach going to the root of the contract.” 3. As distinguished from the cases of Mahon v. City of Columbus and Callanan v. K., A. C. & L. C. R. R. Co. (supra) a situation is presented where an action of damages for breach of contract, instituted by the beneficiary named in the contract, against the individual defendants, would afford complete indemnity for the injury done, if any. We, therefore, conclude the complaint states no cause of action.

The order of the Appellate Division and that of the Special Term should be reversed and the defendants’ motion granted, with costs in all the courts. The first question certified should be answered in the negative, and the second question certified should be answered in the affirmative.

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

Ordered accordingly.