author: Cardozo, Ch. J.

text:
    In the Matter of Metropolitan Life Insurance Company, Respondent, v. Albert Conway, as Superintendent of Insurance, Appellant.
    (Argued December 5, 1929;
    decided January 7, 1930.)

      Hamilton Ward, Attorney-General (Joseph C. H. Flynn of counsel), for appellant.
    The Insurance Law precludes a limitation of the risk to be assumed in contracts for life insurance. (Cons. Laws, ch. 28, § 101, subd. 2.)

      Frederic G. Dunham and Leroy A. Lincoln for respondent.
    No provision of the Insurance Law precludes a limitation as to the nature of the risk to be assumed under policies of life insurance. (Lowenberg v. People, 27 N. Y. 336; Mathewson v. Phœnix Iron Foundry, 20 Fed. Rep. 281; Hopkins v. Connecticut General Life Ins. Co., 225 N. Y. 76; Mack v. Connecticut General Life Ins. Co., 12 Fed. Rep. [2d] 416; Western & Southern Life Ins. Co. v. Horn, 127 N. E. Rep. 416; Landis v. Metropolitan Life Insurance Co., 136 N. E. Rep. 193.) Exclusion of a given risk from coverage, or limiting liability therefor, does not conflict with the incontestable clause. (Murphy v. Travelers Ins. Co., 34 Misc. Rep. 238; Sipp v. Philadelphia Life Ins. Co., 142 Atl. Rep. 221; Lee v. Southern Life & Health Ins. Co., 98 So. Rep. 696; Brady v. Prudential Ins. Co., 168 Penn. St. 645; Illinois Bankers’ Life Assn. v. Byassee, 275 S. W. Rep. 519; Sanders v. Jefferson Standard Life Ins. Co., 10 Fed. Rep. 143; Flannagan v. Provident Life & Accident Ins. Co., 22 Fed. Rep. [2d] 136; Collins v. Metropolitan Life Ins. Co., 27 Penn. Super. Ct. 356; Collins v. Metropolitan Life Ins. Co., 133 Ill. App. 326; Scarborough v. American Nat. Ins. Co., 171 N. C. 353; American Nat. Ins. Co. v. Munson, 202 S. W. Rep. 987; Stean v. Occidental Life Ins. Co., 171 Pac. Rep. 786; Myers v. Liberty Life Ins. Co., 257 Pac. Rep. 933.)
   Cardozo, Ch. J.

Metropolitan Life Insurance Company, the petitioner, applied to the Superintendent of Insurance, the predecessor of the present appellant, for his approval of a rider to be attached to its policies. The rider submitted was in the following form: “ Death as a result of service, travel or flight in any species of air craft, except as a fare-paying passenger, is a risk not assumed under this policy; but, if the insured shall die as a result, directly or indirectly, of such service,'travel or flight, the company will pay to the beneficiary the reserve on this policy.” The Superintendent of Insurance refused his approval upon the ground that the proposed rider in his judgment was inconsistent with Insurance Law, section 101, subdivision 2 (Cons. Laws, ch. 28), which reads into every policy a provision that it “ shall be incontestable after it has been in force during the lifetime of the insured for a period of two years from its date of issue except for non-payment of premiums and except for violation of the conditions of the policy relating to military or naval service in time of war.” In certiorari proceedings to review this refusal, the Appellate Division found the conflict between rider and statute to be unreal, and reversed the determination.

The Insurance Law of this State prescribes certain terms which must be embodied in every policy of life insurance, but does not otherwise limit the terms of the policy or of any rider to be attached to it except by the exaction that policy and rider shall be approved by the Superintendent of Insurance (Ins. Law, § 101). The purpose of such approval is to avoid the risk of a departure from the terms of the statute with its enumerated restrictions (Hopkins v. Conn. Gen. L. Ins. Co., 225 N. Y. 76). If approval is omitted, the policy or the rider is not invalid ipso facto unless in conflict with the provisions exacted by the statute. It is invalid even then to the extent of the conflict, and no farther (Ins. Law, § 101, last paragraph; Hopkins v. Conn. Gen. L. Ins. Co., supra, p. 82). The statute reads itself into the contract, and displaces inconsistent terms.

We agree with the .Appellate Division in its holding that rider and statute in this instance are consistent and harmonious. The provision that a policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage, the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter became invalid by reason of a condition broken. Like questions have arisen in other jurisdictions and in other courts of this State. There has been general concurrence with reference to the answer (Sanders v. Jefferson Standard L. Ins. Co., 10 Fed. Rep. [2d] 143; Flannagan v. Provident L. & A. Ins. Co., 22 Fed. Rep. [2d] 136; Wright v. Phila. L. Ins. Co., 25 Fed. Rep. [2d] 514; Scarborough v. Am. Nat. Ins. Co., 171 N. C. 353; Myers v. Liberty L. Ins. Co., 124 Kan. 191; Childress v. Fraternal Union of Am., 113 Tenn. 252; Brady v. Prudential Ins. Co., 168 Penn. St. 645; Illinois Bankers L. Assn. v. Byassee, 169 Ark. 230; Woodbery v. N. Y. Life Ins. Co., 129 Misc. Rep. 365; 223 App. Div. 272).

The meaning of the statute in that regard is not changed by its exceptions. A contest is prohibited in respect of the validity of a policy “ except for nonpayment of premiums and except for violation of the conditions of the policy relating to military or naval service in time of war ” (§ 101, subd. 2). Here again we must distinguish between a denial of coverage and a defense of invalidity. Provisions are not unusual that an insured entering the military or naval service shall forfeit his insurance. A condition of that order is more than a limitation of the risk. In the event of violation, the policy, at the election of the insurer, is avoided altogether, and this though the death is unrelated to the breach. No such result follows where there is a mere restriction as to coverage. The policy is still valid in respect of risks assumed.

Northwestern Mutual Life Ins. Co. v. Johnson (254 U. S. 96 [1920]) is not a decision to the contrary. The clause there in question was not a limitation as to coverage. It was a provision for a forfeiture. In case of the suicide of the insured, whether sane or insane, the policy was to be void.” This meant the forfeiture of the privilege to receive the surrender value of the policy or equivalent benefits, a privilege which would survive if there was merely a limitation of the hazards. Statutes there are indeed whereby the enjoyment of surrender values is preserved against forfeiture by the insurer for breach of a condition as to the payment of premiums (see e. g., N. Y. Ins. Law, §§ 88, 101, subd. 6), but not against conditions generally. What was said by Holmes, J., of the effect of the “ incontestable clause ” must be read in the light of the question before him. It is true, as he says, that with such a clause the death of the insured coupled with the payment of the premiums, will sustain a recovery in the face of a forfeiting condition. It is quite another thing to say that the same facts will prevail against a refusal to assume the risk. Later cases in the Federal courts develop the distinction clearly. A provision for incontestability does not have the effect of converting a promise to pay on the happening of a stated contingency into a promise to pay whether such contingency does or does not happen ” (Sanders v. Jefferson Standard L. Ins. Co., supra, at p. 144, citing and distinguishing Northwestern Life Ins. Co. v. Johnson, supra). Where there has been no assumption of the risk, there can be no liability (Hearin v. Standard L. Ins. Co., 8 Fed. Rep. [2d] 202; Mack v. Connecticut Gen. L. Ins. Co., 12 Fed. Rep. [2d] 416; Flannagan v. Provident L. & A. Ins. Co., supra; Wright v. Philadelphia L. Ins. Co., supra; Myers v. Liberty L. Ins. Co., supra; Draper v. Oswego Co. Fire Relief Assn., 190 N. Y. 12, 18). The kind of insurance one has at the beginning, that, but no more, one retains until the end.

The order should be affirmed with costs.

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Order affirmed.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Sarah E. Van Leet, as Administratrix of the Estate of Glenn H. Van Leet, Deceased, Respondent, v. Willis S. Kilmer, Appellant.
    (Argued December 6, 1929;
    decided January 7, 1930.)

      Harvey D. Hinman for appellant.
    Even if intestate’s rod came in contact with defendant’s wire and the insulation on such wire had become defective and the direct current of 110 volts carried by defendant’s wire caused intestate’s death, nevertheless defendant was entitled to a nonsuit. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; Coons v. New York Telephone Co., 249 N. Y. 42; Adams v. Bullock, 227 N. Y. 208.)

      David F. Lee and Harry J. Daley for respondent.
    The defendant was not entitled to. a nonsuit and the question as to whether defendant’s negligence caused intestate’s death was a question of fact for the jury, and the jury’s finding in favor of the plaintiff is supported by the weight of evidence and should not be disturbed. (Schoonmaker v. Pittsburgh Contracting Co., 176 App. Div. 48; Wagner v. Brooklyn Heights Ry. Co., 69 App. Div. 349; 174 N. Y. 520; Matter of Plass v. C. N. E. Ry. Co., 226 N. Y. 449; Braun v. Buffalo General Electric Co., 200 N. Y. 484; Burrows v. Livingston Niagara Pr. Co., 217 App. Div. 206; 244 N. Y. 548; Ennis v. Gray, 87 Hun, 355; Munsey v. Webb, 231 U. S. 150; Condran v. Park & Tilford, 213 N. Y. 341; Ferrari v. N. Y. Cent. R. R. Co., 224 App. Div. 182; 250 N. Y. 527.)
   O’Brien, J.

Defendant generates electric power for his own use at Binghamton and also supplies it for profit to the United Shoe Machinery Corporation in the same city. A direct current of one hundred and ten volts, transmitted from his premises along insulated low power wires, is carried into the shoe machinery factory. Between two points at which these wires are attached to the exterior wall of that factory is a circular opening flush with the wall. This opening constitutes the outlet for a blower located inside the building and its lowest curve is placed more than twenty-three feet above the pavement. The two wires, strung from glass insulators, pass eighteen inches or two feet outside of and substantially parallel with the factory wall and two feet below the base of the circular outlet. Inside the blower, a few feet below the opening, was a mechanical device known as a baffle plate which had become dislocated. Plaintiff’s intestate was employed as an all around man ” by the United Shoe Machinery Corporation and among his duties was the repair of electrically driven machines and the inspection and repair of electric wiring. He was assigned to the task of retrieving the baffle plate and for that purpose used a slender galvanized iron rod seven and a half feet long fashioned at one end into a hook. A wooden ladder twenty feet high he placed between defendant’s wires and .the wall of the factory in such a position as to cause its upper end to rest a foot or two below the curve of the opening. He mounted the ladder and, while standing within the two-foot space between the wires and the wall, with his left hand resting on the metal edge of the blower hole, he attempted with his right hand to insert the rod into the opening for the purpose of fishing out the baffle plate. The iron rod, which he held came in contact with one of defendant’s wires, he received a shock, fell from the ladder, sustained a fracture of the skull and died. A question of fact was presented whether the rod came in contact with defendant’s low power wires carrying a voltage only of 110 direct current or with the adjacent high tension lines of the Binghamton Light, Heat and Power Company charged with an alternating current of 2,300 volts. This issue was closely ■ contested but its determination in plaintiff’s favor is not without support. Defendant appeals from the judgment against him for negligence in the maintenance of his wires.

If the Workmen’s Compensation Law had been invoked against the United Shoe Machinery Corporation as employer, this unfortunate accident would have been included within the operation of that statute. The humane system so established was intended to extend refief to workmen injured and to the families of those killed in accidents arising out of and in the course of their employment. It applies even in cases where no one except the workman himself can be adjudged guilty of fault. Rejecting the sure enforcement of that statutory remedy, plaintiff instituted this action for common-law negligence against one who was not the employer of the deceased and whose relation to the events culminating in his death consisted solely in the maintenance of wires and the transmission of low voltage electric energy.

Sympathetic impulse must yield to law. Affirmance of this judgment would, in pur opinion, result in such an extension of liability as would exceed all reasonable bounds. Where peril lurks, its creator is bound to provide safeguards. Unusual precautions must be taken against extraordinary dangers. Where mere potentiality of injury exists, only such foresight as appears to be commensurate with its reasonably probable occurrence need be employed. These are, of course, the elementary rules measuring the degree of care necessary to relieve one from a charge of negligence. If electric energy at two or three thousand volts be transmitted over a ragged wire, the requisite degree of other elements of caution is very high. (Braun v. Buffalo Gen. Elec. Co., 200 N. Y. 484.) Likewise when the voltage is 4,000. (Ferrari v. N. Y. C. R. R. Co., 224 App. Div. 182; affd., 250 N. Y. 527.) At 11,000 volts even more uncommon vigilance must be exerted for the safety of those who under customary conditions may be assumed to come in contact with it. (Burrows v. Livingston- Niagara Power Co., 217 App. Div. 206; affd., 244 N. Y. 548.) The risk must lie within the range of apprehension. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 344.) No more than reasonable care, however, is required. Every conceivable injury, due to unusual combinations of circumstances to which may be contributed the negligence of the person injured, need not be foreseen. An illustration of this principle appears in Troidle v. Adirondack Power & Light Corp. (252 N. Y. 483).

The effect of this judgment is to impose upon defendant the liability of an insurer. Wires carrying such a low voltage as 110 cannot be regarded as an agency of peril. When in contact with a human being, as shown by the experiment of plaintiff’s expert, such voltage may produce no burn or shock. The same expert had accidentally come in contact with a wire of that voltage and was startled but not burned. There is testimony, however, from which the inference can be drawn that plaintiff’s intestate did sustain a faint shock. The slight inherent danger of producing even a feeble shock becomes greatly reduced and for practical purposes nearly disappears when wires are strung so high above the ground that they can be reached only by use of a twenty-foot ladder. Danger there was not easily forseeable. (Coons v. N. Y. Tel. Co., 249 N. Y. 42, 45; Adams v. Bullock, 227 N. Y. 208, 210.) The wires were insulated but they were partially weather worn and at one point the insulation had become detached. Nevertheless at the place where the accident occurred, so plaintiff’s witness testified, the insulating material was not frayed or frazzled. Remote possibility of injury was not completely excluded. This is apparent from the fact that contact with plaintiff’s intestate produced a shock at least strong enough to startle him and cause him to fall from the ladder, but we think, as matter of law, that defendant is not shown to have omitted any "safeguard against danger which could reasonably be foreseen. He was not bound to make provision against the act of an experienced electrician holding an iron rod in direct contact with these low power wires.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and Hubbs, JJ., concur.

Judgments reversed, etc.


author: Crane, J.

text:
    Annie McCarthy, as Administratrix of the Estate of Edward A. McCarthy, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant.
    (Argued December 5, 1929;
    decided January 7, 1930.)

      Ralph Earl Prime, Jr., for appellant.
    The Appellate Division erred in merely modifying, instead of reversing in toto, the judgment of the City Court of Yonkers in plaintiff’s favor. (Andrews v. Cohen, 221 N. Y. 148; Cohen v. John Hancock Mutual Life Ins. Co., 135 App. Div. 776; Metropolitan Life Ins. Co. v. Schaffer, 50 N. J. 72; Brennan v. Prudential Ins. Co., 170 Penn. St. 488; Thomas v. Ins. Co., 148 Penn. St. 594; Sheridan v. Prudential Ins. Co., 128 Ill. App. 519; Shea v. U. S. Industrial Ins. Co., 23 App. Div. 53.)

      John J. Finn for respondent.
    The failure of appellant herein, upon the trial of this action, to make any motion at the close of the whole case for a nonsuit or for a dismissal, operated as an admission by him that there was a question of fact to be passed upon by the trial court and as a waiver of any right to have the complaint and case dismissed as a matter of law. (Spencer v. State, 187 N. Y. 484; Hopkins v. Clark, 158 N. Y. 299; Faulkner v. Cornell, 80 App. Div. 161; Hobson v. Condensed Milk Co., 25 App. Div. 111; Greenspan v. Newman, 37 Misc. Rep. 784; Brown v. Levy, 24 Misc. Rep. 812; Wright v. May, 29 Misc. Rep. 300; Hardy v. Eagle, 25 Misc. Rep. 471; Kraetzer v. Thomas, 23 Misc. Rep. 329; Kaufman v. Canary, 21 Misc. Rep. 302; MacAleenan v. Bonding Co., 232 N. Y. 207; Liondale Co. v. Gerber, 197 App. Diy. 355; Schaffer v. Houck, 183 App. Div. 283.) The respondent, upon the trial, made out an adequate and complete prima facie case. (McClelland v. Mutual Life Ins. Co., 151 App. Div. 264; Joyce on Insurance, § 3388; Westlake v. St. Lawrence Ins. Co., 14 Barb. 206; Post v. Ætna Ins. Co., 43 Barb. 366; Glazer v. Ins. Co., 190 N. Y. 6; McNally v. Phœnix Ins. Co., 137 N. Y. 389; Carpenter v. German American Ins. Co., 135 N. Y. 303.) The appellant’s affirmative defense of the Statute of Limitations is utterly insufficient in law and constitutes no defense to this action in view of the fact that the administratrix herein was not appointed until September 23, 1926. (Seymour v. Mechanics & Metals Nat. Bank, 199 App. Div. 715; Bucklin v. Ford, 5 Barb. 393; Crapo v. City of Syracuse, 183 N. Y. 395; Jacobus v. Colgate, 217 N. Y. 244; Barnes v. City of Brooklyn, 22 App. Div. 520.) The only cause of action granted to any one whatever under the terms of this policy, was a cause of action in favor of the executor or administrator so that there could be no compromise or settlement under any circumstances with any one but an executor or administrator. (Nolan v. Prudential Ins. Co., 139 App. Div. 166; Ferretti v. Prudential Ins. Co., 49 Misc. Rep. 489; Tarasowski v. Prudential Ins. Co., 113 Misc. Rep. 250; Matter of Shanley, 95 Misc. Rep. 430; Wachtel v. Harrison, 84 Misc. Rep. 76; Ruoff v. Hancock, 86 App. Div. 447; Wokal v. Belsky, 53 App. Div. 167; Thompson v. Prudential Ins. Co., 119 App. Div. 668; Matter of Degenhardt, 123 Misc. Rep. 763; Matter of Reiley, 111 Misc. Rep. 66.)
   Crane, J.

On the 14th of October, 1918, The Prudential Insurance Company of America issued its policy of insurance upon the life of Edward A. McCarthy. The policy in part reads as follows:

“ The Prudential Insurance Company of America,

immediately upon receipt of due proof of the death of the Insured during the continuance of this Policy, will pay at its Home Office, Newark, New Jersey, the amount of insurance herein specified, to the executors or administrators of the Insured, unless payment be made under the provisions of the next succeeding paragraph.

Facility of Payment.— It is understood and agreed that the said Company may make any payment or grant any non-forfeiture provision provided for in this Policy to any relative by blood or connection by marriage of the Insured, or to any person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the Insured, for his or her burial, or, . * * * for any other purpose, and the production by the Company of a receipt signed by any or either of said persons or of other sufficient proof of such payment * * * to any or either of them shall be conclusive evidence that such payment or provision has been made or granted to the person or persons entitled thereto, and that all claims under this Policy have been fully satisfied.”

The amount of the insurance was $392, and the weeldy premium forty cents.

Edward A. McCarthy died June 21, 1919, leaving a wife him surviving. On February 20, 1920, the defendant paid by check $275 to McCarthy’s sister, Catherine Foley. On the back of the check, which is an exhibit in this case, there is the usual printed form, This check is in full payment of claim under policy or policies mentioned thereon.”

The insured, Edward A. McCarthy, was sick, and could not pay his premiums of forty cents a week. He sent the policy to his sister, Mrs. Foley, who paid them up to the time of his death. This is no doubt the reason why the company paid the sister instead of the wife. The latter testifies that she did not know until later that her husband had this policy. She and the sister were apparently not on good terms.

The company had the right under the above Facility of Payment ” clause, to pay the sister, but could they pay her less than the amount due, and escape liability for the balance? Why the company paid $275 instead of $392 is not explained. Mrs. Foley testified that she was never told the reason and does not know. The agents for the company make no explanation. We have the bare fact that the company, owing $392, with the permission from the deceased to pay any relative, has paid to a sister $275 by a check having on it the words,

“ Paid in full.”

In examining this question we must remember that the sister had no claim to be paid in full. She had no rights as against the company. (Nolan v. Prudential Ins. Co., 139 App. Div. 166; Cohen v. Hancock Mutual Life Ins. Co., 135 App. Div. 776.) She could not sue on the policy for the $392. She might have had an equitable claim for the premiums paid, but could maintain no action otherwise. The claim belonged to the executor or administrator of McCarthy’s estate. The company agrees to pay to the executors or the administrators of the insured unless payment be made under the “ Facility of Payment ” clause. The claim belonged to the estate. It was a contingent claim, however, subject to the right or privilege of a company to pay any relative. This privilege, however, belonged to the company and was not a right of the relative. If this were not so, which relative could sue on the claim? There might be twenty relatives, any one of which under this clause the company could pay.

The sister, therefore, had no claim to release and she could not receive as against those who had the claim less than full payment. Note the reading of the policy. The company will pay the estate $392 — the full amount — every dollar, unless it pays a relative. Taking a receipt from a relative, or paying ten cents on a dollar is not the payment expressed in, or contemplated by the policy. Not only does the contract provide otherwise, but reasoned interpretation leads to this conclusion. What an opportunity would thus be afforded to get some distant relative to take as payment in full a small part of the amount due! The company has not attempted to settle a disputed claim — even if it could do so — with a relative. There is no evidence of any dispute. We simply have the payment of a less amount than that stated in the policy after the premiums have been paid on an agreement to pay the full amount. The position of the company is unreasonable.

The Appellate Division found that the company should pay the balance of the claim, the difference between $275 and $392, to the administratrix, in this case the wife. We agree with its conclusion.

The Supreme Court of Pennsylvania- has held otherwise in Brennan v. Prudential Ins. Co. (170 Penn. St. 488), but wé are not impressed with the reasoning of the opinion. The case of State v. Schaffer (50 N. J. L. 72) was a case of full payment and rightly decided. The point was considered in Sheridan v. Prudential Ins. Co. (128 Ill. App. 519; affd., 230 Ill. 33). (See, also, Prudential Ins. Co. v. Hornell, Supreme Court Oklahoma, Dec. 10, 1929.) With these industrial policies it would be an unwise rule which would permit settlement with relatives for less than face value.

If there be an honest dispute over the fulfillment of conditions or over liability for any cause, the safe course would be for the company to settle with the administrator who can release the claim. Here, however, we have no such case, as there is no evidence of any settlement of a disputed claim even with the sister.

The insurance company has raised the question of the Statute of Limitations and of the failure to serve proof of loss. The administratrix was not appointed until September 23, 1926, and the action was brought two days thereafter. The statute could not run until there was someone able to sue. In this case no person could bring an action on the claim except the administratrix, and she brought it two days after she was appointed. As to proofs of loss, the fact that the company paid a portion of the claim is a waiver of formal proofs of death. (Joyce on Insurance, § 3388; Post v. Ætna Ins. Co., 43 Barb. 351, p. 366.)

The court found, however, as a fact that “in the month of February, 1920, satisfactory proof of deáth of the said insured, Edward A. McCarthy, was given: -to the defendant herein.” The company was given notice to produce all proofs of loss. Its evidence was that it could not find any, not that it had not received notice. The fact that the company paid $275 indicates that it had no such defense. There was some evidence, therefore, to sustain the finding, or inferences, at least. As the defendant’s lawyer made no motion at the end of the case to dismiss, it is presumed, conclusively, that there was some evidence for the plaintiff on this question of waiver.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Per Curiam.

text:
    Wawzyn Nowak, Respondent, v. The Brotherhood of American Yeomen, Appellant. Mart Nowak et al., Respondents, v. The Brotherhood of American Yeomen, Appellant.
    (Argued October 24, 1929;
    decided January 7, 1930.)

      John H. Clogston for appellant.
    The verdict of the jury of no cause of action directed by the court on account of the breach of warranty was proper. (Preston v. Ætna Ins. Co., 193 N. Y. 142; Saad v. New York Life Ins. Co., 201 App. Div. 544; Bollard v. New York Life Ins. Co., 98 Misc. Rep. 286; 182 App. Div. 915; 228 N. Y. 521; Baumann v. Preferred Accident Ins. Co., 174 App. Div. 871; 225 N. Y. 480; Stanulevich v. St. Lawrence Life Assn., 228 N. Y. 586; Grubiak v. John Hancock Mutual Life Ins. Co., 212 App. Div. 126; Davern v. American M. L. Ins. Co., 241 N. Y. 318; Satz v. Massachusetts Bonding & Ins. Co., 243 N. Y. 385; Kwiatkowski v. Brotherhood of American Yeomen, 216 App. Div. 647; 243 N. Y. 394; Garrett v. Supreme Tribe of Ben Hur, 219 App. Div. 413; 245 N. Y. 644; Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63.)

      Merritt N. Baker for respondents.
    The answers were not false as a matter of law; the cases were properly submitted to the jury; their verdicts follow the charge and were supported by the evidence; the order setting the verdicts aside and directing verdicts for defendant was erroneous, and the judgments and orders appealed from were proper. (Nowak v. Brotherhood of American Yeomen, 249 N. Y. 78; Dilliber v. Home Life Ins. Co., 69 N. Y. 256; Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Valentini v. Metropolitan Ins. Co., 106 App. Div. 487; Crosby v. Security Mutual Ins. Co., 86 App. Div. 89; Genung v. Metropolitan Ins. Co., 69 App. Div. 424; Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Schmitt v. Michigan Mutual Ins. Co., 101 App. Div. 12; Fletcher v. Bankers Life Ins. Co., 62 Misc. Rep. 546; Edington v. Mutual Life Ins. Co., 67 N. Y. 185; Eastern D. F. Lye Works v. Travelers Ins., Co., 234 N. Y. 441; Smith v. Travelers Ins. Co., 76 Misc. Rep. 441.)
   Per Curiam.

Upon a former appeal (249 N. Y. 78) we held that the question, Have you ever consulted a physician? ” following the question, Are you in good health? ” might justly have been taken by the assured to mean Have you ever consulted a physician in respect to ailments affecting your general health? ” and, therefore, that the assured, in answering No,” may have told the truth. We see no reason for altering our views. It is not to be supposed, however, that the particular holding is authority for the proposition that, in all cases, questions as to consultations with a physician must be taken to relate to none other than communications between doctor and patient in respect to bodily disorders, which are grave. An insurer may wish to know how recently a physician has made a professional call upon an applicant for insurance, regardless of the topic discussed during the consultation between them. If the call has been recent, the insurer, upon that ground alone, may wish to reject the insurance application. If an insurer desires such knowledge it is entitled to it. But when, as in this case, an insurer in effect says, Is your health good? ” and follows the affirmative answer given with the question, Have you consulted a physician? ” it is as if the insurer said, “ You have stated your health to be good. Have you ever consulted a physician about it? ” The juxtaposition of the questions controls and limits the meaning in a particular instance, such as here shown.

The judgment in each action should be affirmed with costs.

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

Judgments affirmed.


author: Kellogg, J.

text:
    Andrea D. Colettt, Respondent, v. Knox Hat Company, Incorporated, Appellant.
    (Argued November 21, 1929;
    decided January 7, 1930.)

      S. S. Jennings, Jr., and George N. Hamlin for appellant.
    The contract of employment was one for the entire year 1926, and indivisible. It contemplated payment of compensation on the basis of the entire year only and at the conclusion of the calendar year. (Gressing v. Musical Instrument Sales Co., 222 N. Y. 215; Cudney v. Phillips Mfg. Co., 181 App. Div. 257; Hebberd v. American Sheet Metal Lath Co., 90 Misc. Rep. 350; McMillan v. Vanderlip, 12 Johns. 165; Clark v. N. Y. Life Ins. & Trust Co., 64 N. Y. 33.) The contract of employment having been terminated by mutual agreement, plaintiff may recover for alleged unpaid services, claimed to have been performed by him during the period of the contract, only where the agreement of termination expressly or impliedly provides for such payment. (McCreery v. Day, 119 N. Y. 1; Leake on Contracts [6th ed.], 40; Lamburn v. Cruden, 2 Man. & G. 253; Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289; Browne v. Empire Typesetting Machine Co., 44 App. Div. 598; Natalzzio v. Valentino, 71 N. J. L. 500.)

      Joseph D. Karp for respondent.
    The contract became fully executed when the parties mutually agreed to its termination. (Scheuer v. Monash, 40 Misc. Rep. 668; Jeffery v. Walker, 72 Hun, 631; Jenkins v. Long & Byrne, 8 Md. 132; Jacobsen v. Rice Import Co., 202 N. Y. Supp. 233; 2 Clark N. Y. Law of Contracts, § 879, p. 1327; Martin v. Insurance Co., 148 N. Y. 117; U. S. v. U. S. Fidelity & Guaranty Co., 139 App. Div. 262.) When the contract of employment was terminated, the plaintiff’s right to compensation for services already performed remained unimpaired and became immediately vested. (Ainesworth v. Martin, 77 Penn. Super. Ct. 490; Freudenberger v. Sternberg & Co., 67 N. J. 297; Levy v. Jarrett, 19 S. W. Rep. 333; Larson v. Augustana Colonization Assn., 192 N. W. Rep. 108.) The motion for summary judgment was properly granted. (O’Meara Co. v. National Park Bank, 239 N. Y. 386; Coutts v. Kraft & Bros. Co., 119 Misc. Rep. 260; Jacobs v. Korpus, 128 Misc. Rep. 445; Tidewater Oil Sales Corp. v. Pierce, 213 App. Div. 796; Donlin v. Carlow, 120 Misc. Rep. 698; Gen. Investment Co. v. Interborough R. T. Co., 235 N. Y. 133; Commonwealth Fuel Co. v. Powpit Co., 212 App. Div. 553; Cleghorn v. Ocean Accident & Guarantee Corp., 216 App. Div. 342; 244 N. Y. 166.)
   Kellogg, J.

The complaint alleges that the plaintiff and defendant, on or about January 31st, 1925, entered into an agreement the terms of which were contained in a writing, of which Exhibit A, attached to the complaint, is a copy. Exhibit A is a letter from the defendant to the plaintiff purporting to confirm an oral agreement for the employment of the plaintiff in certain territory as a sales agent for the defendant. It states that the plaintiff is to have a drawing account at the rate of $7,500 per year, payable bi-monthly; that commissions are to be credited to the plaintiff on the basis of ten per cent on all sales up to $150,000 for the calendar year; that, on all sales above that amount, commissions are to be at the rate of two per cent; that the total of the plaintiff’s drawing account, plus money advanced for traveling expenses during the calendar year, are to be deducted from the total commissions; that a check for the balance is to be given to the plaintiff as soon after January 1st, 1926, as may be practicable. The complaint then alleges that the plaintiff, pursuant to the agreement set forth in Exhibit A, entered upon his employment with the defendant and continued therein until January 18th, 1926; that upon that date the agreement was renewed with a certain modification as to territory, and with the single other amendment that plaintiff’s drawing account was to be $10,000 per year rather than $7,500. The complaint, continuing, alleges: “ That the plaintiff continued in the employ of the defendant up to on or about September 1st, 1926, pursuant to and in accordance with said agreement Exhibit ‘A,’ as amended as aforesaid, at which time the employment of the plaintiff by defendant was terminated by the consent and agreement of both plaintiff and defendant.” It further alleges that the sales made by the plaintiff between January 1st, 1926, and September 1st, 1926, totaled $150,544.07; that the plaintiff’s commissions thereon, at the rate of ten per cent for $150,000 and two per cent for the balance, were $15,010.88; that plaintiff had been paid for his drawing account and traveling expenses $9,038.64; that, after deducting this amount, there was a balance' due the plaintiff of $5,972.24, with interest from September 1st, 1926. For this amount the complaint demands judgment. The defendant’s answer, although setting forth facts not wholly in accord with the statements made in the complaint, for present purposes may be regarded as admitting that the allegations of the complaint are true. A motion made by the plaintiff for a summary judgment was granted, and a judgment in his favor for the amount demanded in the complaint was entered. The judgment has been affirmed on appeal.

The agreement of termination might have provided for a total rescission of the employment contract as from the beginning. In that case a cause of action to recover the reasonable value of the services rendered, less the amounts paid, would have accrued to the plaintiff. Again, the agreement might have provided that the plaintiff should have commissions, at the contract rate, based upon sales made by him prior to September 1st, 1926, the day when the agreement was made. So far as appears, the agreement entered into contained no such provisions. The complaint alleges merely that on Sep bember 1st, 1926, the plaintiff’s employment was “ terminated by the consent and agreement ” of the parties. Under this statement of the agreement, without more, the presumption is that the parties thereto intended to discharge each other from those contract obligations only which were yet to be performed. (Williston on Contracts, § 1827.) In this view the plaintiff was discharged from the obligation of rendering further services, while the defendant was discharged from the obligation of making further payments. As the commissions, provided for by the contract, would not have been payable until January 1st, 1927, the defendant was released from the duty of paying them. The plaintiff, standing upon the terms of the original contract, the termination of which has been alleged, can have no recovery.

Even if the plaintiff did not intend, by the agreement of discharge, to release the defendant from its promise to pay commissions, nevertheless he may not procure their payment. Under the terms of the contract of employment, entered into on January 18th, 1926, the plaintiff promised to render services to the defendant, as its sales agent, throughout the year 1926. On January 1st, 1927, the plaintiff was to receive commissions at ten and two per cent, reckoned upon the aggregate prices received through sales made by him during the calendar year, less the amounts advanced for expenses and drawing account. When the performance of a contract consists in doing (faciendo) on one side, and in giving (dando) on the other side, the doing must take place before the giving. (Langdell’s Summary of Law of Contracts, § 125.) “In all contracts for service, therefore, the presumption is that the performance of the service is a condition precedent to the payment for it.” (Id.) Undoubtedly, in this instance, the performance of services, throughout the year, constituted a condition precedent upon which the payment of commissions was made dependent. Yearly services were to be exchanged for yearly commissions; an exchange of monthly services for monthly commissions was not provided for. The plaintiff is not entitled to commissions, either for a year or for a part of a year, since the payment of commissions, as an entirety, was made dependent upon the performance of services, as an entirety, and performance of the latter has not been made. In agreeing to terminate the contract of employment the parties did not otherwise provide. The court cannot now interpolate a contract provision which the parties themselves neglected to make.

The authorities amply support the conclusion that the complaint of the plaintiff makes no case for his recovery of commissions reckoned upon sales by him made prior to the termination of the contract. (Lamburn v. Cruden, 2 Man. & G. 253; Leake on Contracts [6th ed.], 40; McCreery v. Day, 119 N. Y. 1; Barnes Vacuum Brake Co. v. Prosser, 157 N. Y. 289.) In Lamburn v. Cruden (supra) there was considered the case of a servant engaged at a yearly salary, payable quarterly, who left his employment with the consent of his master one month after the termination of a quarter, without making any stipulation as to compensation to be paid for the month. It was held that for his monthly service no recovery, on the basis of proportioning the yearly salary to the monthly service, might be had. It was there said by Tindax,, Ch. J.: No new contract arises, by implication of law, upon a simple dissolution of a special contract of hiring and service, in respect of services performed under such special contract previously to its being so dissolved.” The principle there enunciated is restated with approval in Leake on Contracts (supra) and, as there restated, has met with the approval of this court in McCreery v. Day (supra). The court there said: “ Where a contract is rescinded while in the course of performance, any claim in respect of performance, or of what has been paid or received thereon, will ordinarily ' be referred to the agreement of rescission and in general no such claim can be made unless expressly or impliedly reserved upon the rescission.’ ” The principle, as thus stated, has been reaffirmed in Eames Vacuum Brake Co. v. Prosser (supra). It was there held that an agent, employed to work upon a commission basis, after his contract of employment had been terminated, was not entitled to commissions upon unexecuted sales previously bargained for by him, unless the agreement discharging the contract expressly so provided.

It follows that, upon this complaint, the plaintiff is not entitled to a summary judgment, and that the judgment of the Appellate Division and that of the Special Term should be reversed, with costs in this court and in the Appellate Division, and the motion for summary judgment denied, with ten dollars costs.

Pound, Lehman, O’Brien and Hubbs, JJ., concur; Crane, J., dissents; Cardozo, Ch. J., not sitting.

Judgments reveresd, etc.


text:
    Henry M. Pickle, Respondent, v. W. Bertram Page, Appellant.

      (Argued November 22, 1929;
    decided January 7, 1930.)

      Albert W. Bobbins for appellant.
    Damages recoverable are limited to the value of the services of the child, and the court erred in permitting the jury to consider other elements of damage. (Covert v. Gray, 34 How. Pr. 450; McCarty v. Bogardus, 17 Wkly. Dig. 436; Muller v. Hillenbrand, 179 App. Div. 831; Kennedy v. Woolworth Co., 205 App. Div. 648; Tidd v. Skinner, 225 N. Y. 422; Cowden v. Wright, 24 Wend. 428; Damon v. Moore, 5 Lans. 454; Castanos v. Ritter, 10 Sup. Ct. 370.)

      John W. Hollis for respondent.
    The court did not err on the question of damages in the submission of the case to the jury. (Sheldon v. Baumann, 45 N. Y. Supp. 1016; Steenburgh v. McRorie, 113 N. Y. Supp. 1118; Allaback v. Utt, 51 N. Y. 651.)
   Kellogg, J.

Henry M. Pickle and Bertha E. Pickle, originally named as plaintiffs herein, were the grandfather and grandmother of Vernon Owen Pickle, an infant. They had legally adopted the child upon his abandonment by his mother. Several years later, the mother, enlisting the services of the defendant, a county Sheriff, caused the child to be abducted from the possession of his foster parents. The defendant, employing violence and exhibiting a reckless defiance of the rights of the lawful custodians, actively aided in procuring the abduction. The child, who was then five and one-half years of age, was given over by the defendant into the possession of the mother. This action was thereupon brought to recover damages from the defendant for the injuries inflicted upon the foster parents by the abduction. On the trial the action was dismissed as to Bertha Pickle, the grandmother, and permitted to continue in the name of Henry M. Pickle, the grandfather and foster, father, as the sole plaintiff. In estimating damages the jury were permitted to consider the wounded feelings of the foster father, and to impose punitive damages upon the defendant.

An action of trespass for the abduction of a child was originally maintainable by a father where the child abducted was the son and heir, and not otherwise. (Barham v. Dennis, 2 Cro. Eliz. 770.) This was by reason the marriage of his heir belongs to the father, but not of any other his sons or daughters; ” and, although it had been adjudged that the writ of trespass lay for a parrot, a popinjay, a thrush, and, as 14 Hen. 8 is, for a dog; the reason thereof is, because the law imputes that the owner hath a property in them,” whereas the father hath not any property or interest in the daughter, which the law accounts may be taken from him.” Later it was held that an action of trespass was maintainable by a father per quod servitium amisit where a child old enough to do him service, other than the heir, was abducted. For the abduction of any other child the action did not lie. (Gray y. Jefferies, 1 Cro. Eliz. 55; Hall v. Hollander, 4 Barn. & Cress. 660.) In the latter case it was said: “ It is clear that in cases of taking away a son or daughter, except for taking a son and heir, no action lies, unless a loss of service is sustained.” (Gray v. Jefferies, supra; Barham v. Dennis, supra.) The mere relationship of the parties is not sufficient to constitute a loss of service.” In the case of an injury inflicted upon a child, so immature that it was incapable of rendering service, the parent might have no remedy against the person inflicting the injury. (Hall v. Hollander, supra.)

The principle that the abduction of a child, not the heir, or not capable of rendering service, was a wrong for which the law furnished no civil remedy, was not adopted without protest, nor has it received unqualified approval. Thus in Barham v. Dennis (supra) Glanville uttered a strong dissent, saying: “ For the father hath an interest in every of his children to educate them, and to provide for them; and he hath his comfort by them; wherefore it is not reasonable that any should take them from him, and to do him such an injury, but that he should have his remedy to punish it.” Blackstone was of the opinion that for the abduction of a child, other than the heir, a father might maintain an action, stating that such a wrong was “ remediable by writ of ravishment or action of trespass vi et armis, de filio, vel filia, rapto vel abducto; in the same manner as the husband may have it, on account of the abduction of his wife.” (Bl. Comm. 140.) Judge Cooley, referring to the holdings in Barham v. Dennis and Hall v. Hollander, has remarked: “This sometimes leads to results which are extraordinary, for it seems to follow, as a necessary consequence, that if the child, from want of maturity or other cause, is incapable of rendering service, the parent can suffer no pecuniary injury, and therefore can maintain no action when the child is abducted or injured.” (Cooley on Torts, p. 481.) Judge Cowen, referring to the English rule that, for the consequences of an injury to an immature child, no remedy runs to the father, has said that he should regard it as quite questionable whether such a principle prevailed in this State. (Hartfield v. Roper, 21 Wend. 615.) It is to be noted, also, that Sir Frederick Pollock, without qualification, makes the broad statement: “ The common law provided a remedy by writ of trespass for the actual taking away of a wife, servant, or heir, and perhaps younger child also; ” and follows the statement by the further assertion that an action of trespass also lies for wrongs done to a plaintiff’s wife, or servant or child, regarded as a servant, whereby the society of the former or the services of the latter are lost, the language of the pleading being per quod consortium, or servitium amisit. (Pollock, The Law of Torts, p. 226.)

It is undoubtedly true that the gravamen of an action brought by a parent for the seduction of a daughter is loss of service. (Moran v. Dawes, 4 Cow. 412; Clark v. Fitch, 2 Wend. 459; Hewitt v. Prime, 21 Wend. 79; Badgley v. Decker, 44 Barb. 577; Knight v. Wilcox, 14 N. Y. 413; Lipe v. Eisenlerd, 32 N. Y. 229; Lawyer v. Fritcher, 130 N. Y. 239.) However, granted the showing of a loss of service, either actual or constructive, the parent may recover damages for his wounded feelings as well as damages imposed for punitive purposes. (Ingersoli v. Jones, 5 Barb. 661; Cowden v. Wright, 24 Wend. 429; Clark v. Fitch, supra; Badgley v. Decker, supra; Lawyer v. Fritcher, supra.) It is apparent that the grief of the parent, for which compensation in such a case may be given, arises not from the disability caused by the seduction, but from the dishonor of a daughter whose good fame is dear to him; that the wound to the parent’s feelings is a direct injury inflicted at the moment of the commission of the wrong. Appreciating the anomaly that a compensable damage, directly inflicted, to be recoverable, is dependent upon proof of a logically immaterial fact, i. e., a loss of service, the courts of this State have gone far in presuming the existence of such a loss. (Badgley v. Decker, supra; Moran v. Dawes, supra; Hewitt v. Prime, supra; Clark v. Fitch, supra; Lipe v. Eisenlerd, supra.) Moreover, many judges, although agreeing that, according to authority, the legal gravamen of such an action is loss of service, have frequently expressed their dissatisfaction with the established rule. Thus, in Badgley v. Decker (supra) it was said that, in order to accommodate such an action to cases where the daughter rendered no service, a presumed or a fictitious service is resorted to as the gravamen; ” that in point of fact the real gravamen of the action is the mortification and disgrace of the family, and the wounded feelings of the parent. In Clark v. Fitch (supra) it was said: “ It is true indeed, ‘ and pity ’tis, ’tis true,’ that this action is founded technically upon the supposed loss of service alone, the father and daughter being considered as standing in the relation of master and servant; ” that it would comport much better with common" sense to say that a father, whose daughter has been seduced, shall maintain an action for the- injury done to his wounded honor and his parental feelings.” In Bedford v. McKowl (3 Espinasse’s Rep. 119), Lord Eldon said that while the action for seduction purported to be an action for loss of service, a jury might consider other matters. They may look upon her as a parent losing the comfort as well as the service of her daughter, in whose virtue she can feel no consolation; and as the parent of other children, whose morals may be corrupted by her example.” In Grinnell v. Wells (7 Man. & G. 1033), a case holding that a loss of service must always be alleged and proven, there is appended to the opinion of Tindal, Ch. J., the following note: It may be observed, however, that the quasi fiction of servitium amisit affords protection to the rich man, whose daughter occasionally makes his tea, but leaves without redress the poor man, whose child, as here, is sent, unprotected, to earn her bread amongst strangers.”

Returning to the subject of abduction, we find no decisions by the courts of this country holding that, in actions to recover damages for the abduction of a child, the parent must allege and prove, as a condition of his recovery, a loss of the services of the child. It is true that the Supreme Court of New Jersey, in the case of Magee v. Holland (27 N. J. L. 86), expressed the opinion that it was the “ established law ” that loss of service must be shown. That case involved the abduction of three children of the ages from three to six. Notwithstanding the opinion expressed by the court, as to the general principle underlying all such cases, the court held that the jury was entitled to infer a loss of service, despite the tender ages of the children abducted. So far as the law of this country has become “ established ” by the decisions of its courts, it would seem that the general principle is contrary to that stated in the New Jersey case. In South Carolina it has been held that the action is maintainable without proof or allegation of loss of service. (Kirkpatrick v. Lockhart, 1 Bre. Law [S. C.] [1807], p. 654.) The court there said: The true ground of action is the outrage and deprivation; the injury the father sustains in the loss of his child; the insult offered to his feelings; the heart-rending agony he must suffer in the destruction of his dearest hopes, and the irreparable loss of that comfort and society which may be the only solace of his declining age.” In North Carolina the same holding was made in Howell v. Howell (162 N. C. 283), the court stating that the theory that such an action was grounded on a loss of service was “ an outworn fiction.” In Kentucky it has been stated that in an action for the abduction of a child it is immaterial whether or not the abducted child rendered services to his parents. (Soper v. Igo, Walker & Co., 121 Ky. 550.) In Ohio it has been held that a complaint to recover damages for the abduction of a child is sufficient if it alleges that the parent was thereby deprived of his possession and services, although it did not allege an ability on the part of the child to serve its parent. (Clark v. Bayar, 32 Ohio St. 299.) In Iowa it has been broadly stated that the father has a right to the care and custody of his minor children, and to superintend their education and nurture, is a proposition that does not admit of controversy. And where he is deprived of such care and custody, and of this superintendence, by the. act of another, he has his remedy, by proper action, against such person, is equally clear.” (Everett v. Sherfey, 1 Iowa [Cole’s ed.], 356.)

The cases of Dennis v. Clark (2 Cush. 347) and Moritz v. Garnhart (7 Watts [Penn.], 302), although not directly in point, furnish instructive side-lights upon the question involved. The former case involved an injury to a boy so young that he was incapable of rendering any service-to.his father, inflicted by a mischievous animal belonging to a third person. In an action by the father to recover his expenses in the care and cure of the boy, from the third person, it was held that a loss of service need not be shown. Referring to the proposition that in seduction cases, unless there is a loss of services, even the expenses of caring for a seduced daughter during confinement are not recoverable, Metcalf, J., said: But it is equally true, that the loss of service is not the measure of damages, in such actions; that the legal gravamen is not the real gravamen; and that the loss of service is a fiction resorted to for the purpose of giving compensation for the actual-injury.” The latter case was an action by the grand- - father of an illegitimate child, bom to his daughter, to. recover damages for its abduction from his possession. Gibson, Ch. J., remarked that it was undoubtedly, the common-law rule that such an action “ could not be maintained on the relation of master and servant, unaided by that of parent and child, without proof of service by hiring.” Nevertheless it was held that, in the absence of a showing of either relationship, a recovery might be had in the case presented. The Chief Justice remarked:

So late as Barham, v. Dennis, Cro. Eliz. 770, a father had no remedy for the abduction of any of his children but the heir at law; at this day, by means of a servitude almost fictitious, power is put into bis hands to redress almost every injury that may be done to them.”

In the absence of any New York authority upon the subject; in the default of any decision to the contrary in the courts of our sister States; in view of the anomalies concededly presented in the holdings in the analogous cases of seduction; we are disposed to hold broadly, as have the courts of North and South Carolina, that in actions for the abduction of immature children from the custody of their lawful custodians, parents or foster parents, no loss of service need be alleged or proven; that for the direct injury done, a direct recovery may be had without resort to the fiction that a loss of service has been occasioned. It would be a reproach to our legal system if, for the abduction of a child in arms, no remedy ran to its parent, although “ for a parrot, a popinjay, a thrush ” and even for a dog ” an ample remedy is furnished to their custodian for the loss of their possession.

It is true that for a loss of service resulting from a physical injury to a child, other than through seduction, neither damages for wounded feelings nor punitive damages may be awarded to a parent. (Whitney v. Hitchcock, 4 Den. 461; Tidd v. Skinner, 225 N. Y. 422.) In the first of these cases the child was disabled by an assault so that she could not work. In the second, the services of a boy were withdrawn from his parent through the weakening influence of a drug, supplied by the defendant. In cases of that character brought by a parent the original act is not the cause of his action, but the consequence upon it, viz., the loss of his service is the cause of his action; for be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action.” (Robert Mary’s Case, [1612] 9 Coke’s Rep. 113.) The rule is otherwise where the damage is not consequent but direct; where it results, not intermediately from a physical injury to a third person, as a child, wife or servant, but immediately from the wrong itself, as in case of the enticement away of a servant (Smith v. Goodman, Howell & Co., 75 Ga. 198; Bixby v. Dunlap, 56 N. H. 456); the enticement away of a slave (Tyson v. Ewing, 3 J. J. Marsh. [Ky.] 186); as in an action for criminal conversation with a wife (Matheis v. Mazet, 164 Penn. St. 580); or for the alienation of a husband’s affection (Williams v. Williams, 20 Col. 51). In all these cases, as in the cases of seduction which we have cited, damages for wounded feelings'and punitive damages may be awarded. That they may be awarded in actions brought by a father for the abduction of a child was definitely held in Magee v. Holland (supra). That decision was cited with approval in Stowe v. Heywood (7 Allen, 118), the court saying: “In an action for forcible abduction of children, the father is entitled to damages for the injury done to his feelings.” We hold that they were recoverable here, and that no error was committed when the trial judge instructed the jury that such damages might be considered and awarded by it.

The judgment should be affirmed, with costs.

Pound, Crane, Lehman, O’Brien and Hubbs, JJ., concur; Cardozo, Ch. J., not sitting.

Judgment affirmed.


text:
    Benno G. Troidie, Respondent, v. Adirondack Power and Light Corporation, Appellant.

      (Argued December 5, 1929;
    decided January 7, 1930.)

      Charles B. Sullivan and Neile F. Towner for appellant.
    There is no evidence of negligence on defendant’s part which caused plaintiff’s injury. (Hickok v. Auburn L., H. & P. Co., 200 N. Y. 464; Haskell v. Auburn L., H. & P. Co., 209 N. Y. 86: Magee v. N. Y. Telephone Co., 213 N. Y. 232; Rowley v. Newburgh L., H. & P. Co., 151 App. Div. 65; Adams v. Bullock, 227 N. Y. 208; Lyman v. Putnam Coal Co., 182 App. Div. 705; Brown v. American Mfg. Co., 209 App. Div. 62; Huscher v. N. Y. & Queens El. L. & P. Co., 158 App. Div. 422; 165 App. Div. 241; Coons v. N. Y. Tel. Co., 249 N. Y. 42; Reardon v. Florida West Coast Power Co., 120 So. Rep. 842; State v. Eastern Shore Gas & Elec. Co., 142 Atl. Rep. 503.) The evidence fails to establish that plaintiff was free from contributory negligence. (Basmazian v. Bd. of Education, 211 App. Div. 347; Hickok v. Auburn L., H. & P. Co., 200 N. Y. 464; Haskell v. Auburn L., H. & P. Co., 209 N. Y. 86; Magee v. New York Telephone Co., 213 N. Y. 232; Rowley v. Newburgh L., H. & P. Co., 151 App. Div. 65; Geer v. N. Y. & Penn. Tel. & Tel. Co., 144 App. Div. 874;
      Lyman v. Putnam Coal & Ice Co., 182 App. Div. 705; Brown v. American Mfg. Co., 209 App. Div. 621; Huscher v. N. Y. & Queens El. L. & P. Co., 158 App. Div. 422; 165 App. Div. 241; Coons v. New York Telephone Co., 249 N. Y. 42; State v. Eastern Shore Gas & Electric Co., 142 Atl. Rep. 503; Lanigan v. New York G. L. Co., 71 N. Y. 29; McGuire v. New York Rys. Co., 230 N. Y. 23; Ploxin v. Brooklyn Heights Ry. Co., 171 App. Div. 925; 220 N. Y. 609.) That plaintiff intended to hang his wire on defendant’s wires and drag it across them determines the nature of his act as an intentional trespass. (McAlpin v. Powell, 70 N. Y. 126; Miller v. Woodhead, 104 N. Y. 471; Strobel v. Liebman, 197 N. Y. 348; Walsh v. Fitchburg R. R. Co., 145 N. Y. 301; Birch v. City of New York, 190 N. Y. 397.)

      Henry Hirschfeld and Edward J. Halter for respondent.
    The failure of the defendant to keep its primary wires on plaintiff’s land properly insulated constituted negligence and was a proximate cause of the injuries sustained by plaintiff. (Braun v. Buffalo General El. Co., 200 N. Y. 484; Casualty Co. v. Swett El. L. & P. Co., 230 N. Y. 199; Burrows v. Livingston-Niagara Power Co., 217 App. Div. 206; 244 N. Y. 548; Horning v. Hudson River Tel. Co., 111 App. Div. 122; 186 N. Y. 552; Adams v. Bullock, 227 N. Y. 208; Olm v. N. Y. & Queens El. L. & P. Co., 188 App. Div. 19; Speich v. International Ry. Co., 219 App. Div. 620; Connell v. Keokuk El. Ry. & P. Co., 131 Iowa, 622; Fitzgerald v. Edison El. Ill. Co., 200 Penn. St. 540; McLaughlin v. Louisville El. L. Co., 100 Ky. 173; Geissman v. Missouri-Edison El. Co., 173 Mo. 654; Byerly v. Con. Light, P. & I. Co., 130 Mo. App. 593.) The act of the plaintiff in throwing his aerial over the wires of the defendant did not constitute contributory negligence as a matter of law. (Braun v. Buffalo General El. Co., 200 N. Y. 484; Palmer v. Dearing, 93 N. Y. 7; Casualty Co. v. Swett El. L. & P. Co., 230 N. Y. 199; Fitzgerald v. Edison E. Ill. Co., 200 Penn. St. 540; Mitchell v. Raleigh El. Co., 129 N. C. 166.)
   Kellogg, J.

The plaintiff was the lessee of a small parcel of land upon the easterly portion of which there stood a dwelling house, at the west of which, about seventy-five feet therefrom, there was a garage. The defendant maintained an electric light pole upon the lot, near its southerly border, from which its transmission lines, passing between the garage and the house, extended northerly to a pole maintained by it upon a parcel of land which bounded the plaintiff on the north. Two sets of wires were maintained by the defendant, one set, elevated twenty feet above the ground, carrying a primary current of 2,300 volts, and another set, seventeen and one-half feet above the ground, carrying a secondary current of 110 volts. The poles had been erected, and the wires stretched, pursuant to authority obtained from the owner of the lot, and were maintained by the defendant in the exercise of a legal right. Both sets of wires were insulated with a weather-proof covering ordinarily employed in a like situation. To the east and west of these lines of wire the plaintiff had erected two poles, each of which was fifty-seven feet in height. They were one hundred and twenty-five feet apart and were designed to carry an aerial wire for a radio set to be installed in the dwelling house upon the premises which was occupied by the plaintiff. When the aerial was in position it would cross the defendant’s wires at about a right angle and at an elevation above them of twenty feet. The defendant’s wires were so located that no hazard was created, in the course of an ordinary use, either for those occupying the buildings on the lot or for those pursuing occupations of pleasure or business without the buildings.

On a certain day the plaintiff prepared to re-erect the aerial wire, which had been removed for the winter season, in order to connect up his radio set at the dwelling house. At each end of a metal wire one hundred feet long, intended to be used as an aerial, he fastened porcelain insulators, three to four inches in length and one inch in thickness. To each insulator he hitched a sash cord about fifteen feet in length, and to the end of the cord, tied to the insulator on the end of the wire designed to be its easterly terminus, fastened a stone somewhat large and heavy. Having thus prepared himself, he took up a position at a point ten feet to the west of the defendant’s lines. He wound the aerial wire into a large coil at his side, took the easterly insulator and the stone in his right hand and with his left hand held the sash cord in a coil. Thereupon, he heaved with his right hand, throwing the stone and the insulator, with the cord and wire following, upwards over the primary wires of the defendant, suspended twenty feet above the ground. As the end of the aerial came in contact with the defendant’s wires, that part of the aerial which remained upon the ground uncoiled and struck against the plaintiff. As a result, a high voltage current of electricity passed into the plaintiff’s body and serious injury was thereby inflicted upon him. The claim is made that the defendant was negligent in not so insulating its wires, and so maintaining the insulating material thereupon, that the dangerous current could not have escaped to the aerial wire.

We think that the defendant owed no duty to this plaintiff so to insulate its wires that, in an extraordinary and perilous situation of his own creation, in which he voluntarily placed himself, he might be immune from harm. (Hickok v. Auburn L., H. & P. Co., 200 N. Y. 464; Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86; Magee v. New York Tel. Co., 213 N. Y. 232; Adams v. Bullock, 227 N. Y. 208.) In Hickok v. Auburn L., H. & P. Co. (supra) the facts considered were these: An electric light corporation furnished light and power to the public buildings of a county. In the court yard, faced by the buildings, it had erected a pole to carry its wires. On the top of the pole an incandescent bulb of low candle power was placed to light the court yard. Nearby wires placed on the pole carrying a high voltage current of electricity were defectively insulated. A deputy sheriff, in climbing the pole to replace the incandescent bulb with one of greater power, in order better to light the yard, came in contact with the high tension wires and received an electric current which caused his death. It was held that for his death no recovery might be had, since no duty of insulating the wires was owed to him. The court said: “ As the case stands, therefore, the decedent was a volunteer, if not a trespasser, to whom the defendant owed no duty to keep the wires at the top of the pole safe and free from danger.” If the plaintiff, in the case before us, had climbed the defendant’s pole to lift the aerial over the primary wires and had been injured through contact therewith, he would have been a mere volunteer, if not a trespasser, to whom no duty was owed by the defendant, and, under the authorities cited, no recovery might have been had. We can perceive no difference arising from the fact that the plaintiff, instead of climbing the pole to place his body against the dangerous wires, without right, while standing upon the ground, threw the end of a naked aerial upon the wires above him, and so brought down the current to enter his body and cause him injury. Whether he went to meet the current, or brought the current to him, in either event he acted without a shadow of right. We think that, in the situation shown, the defendant owed to the plaintiff no duty of insulating its wires, that he might be protected against the perils of an action, deliberately performed by him, which was so extraordinary and unforeseeable.

We think, also, that the plaintiff, in throwing the aerial upon the defendant’s wires, knowingly took his chances that the deadly current might be carried to his body. The plaintiff was a physician and a man of education. He was well experienced in things electrical. Such was his knowledge that he had been able, without help, to wire his own garage; to rewire his own house; and, upon many occasions, to set up his radio, making with his own hands all the difficult and complicated electrical connections. During the summer months, for six years, he had occupied this property. It was scarcely possible that he was not aware of the fact that the defendant’s wires, maintained in the same position throughout the period of his occupation, carried a primary current of high voltage. If possible, he failed to show by his testimony that the possibility was an actuality, although the burden so to do rested upon him. Moreover, the affirmative inference, that he was well aware of the presence of a dangerous current passing through the wire, clearly arose from the undisputed proof. The plaintiff attached the sash cords to the insulators at the ends of the aerial, intending to remove the cords when the radio wire had been erected. The inference readily lies that he so acted that he might with safety, when the radio wire rested on the transmission wires, pull the former across the latter and lift it to its proper place. He was careful to state, in giving his story on direct examination, that he took in his hands only the stone, the insulator and the sash cord; that at no time was any part of the aerial wire in his hands. Doubtless the plaintiff felt that, with the coil of radio wire at his side, no part of which was in contact with his body, he was safe in tossing the end of the wire across the defendant’s wires. It was a mischance that the wire uncoiled to strike him. For that mischance, and for the miscalculation of the plaintiff that such a result would not befall, the defendant cannot be held liable.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Pound, Crane, Lehman, O’Brien and Hubbs, JJ., concur; Cardozo, Ch. J., concurs in the result on the ground that the defendant was not proved to have been negligent in that the insulation was not shown to be inadequate in view of the contingencies reasonably to be foreseen.

Judgments reversed, etc.


text:
    George Eisenberg, Respondent, v. Afner Reasenberg, Appellant.
    (Argued December 5, 1929;
    decided January 7, 1930.)

      Samuel Sumner Goldberg and Hyman Podell for appellant.
    The letter which the defendant wrote to the Collector of Customs was absolutely privileged and not the subject of an affirmative cause of action in favor of the plaintiff, and the complaint should have been dismissed at the close of the plaintiff’s case. (18 Hals-bury’s Laws of England, 677; Odgers on Libel & Slander [5th ed.], 227; Hyman v. Press Publishing Co., 199 App. Div. 609; Gibbon v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Welton v. Missouri, 91 U. S. 275; Smith v. Alabama, 124 U. S. 465; Nutt v. Knutt, 200 U. S. 12; Knickerbocker v. Stewart, 253 U. S. 149; Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135; Union Pacific v. Burke, 255 U. S. 317; American Ry. Exp. v. Lindenberg, 260 U. S. 584; Matter of Quarles v. Butler, 158 U. S. 532.)

      B. M. S. Putnam and Joseph Nemerov for respondent.
    The letter had no absolute privilege under the law. (Pecue v. West, 233 N. Y. 316; Matter of Quarles v. Butler, 158 U. S. 532; Vogel v. Grauz, 110 U. S. 311; Worthington v. Scribner, 109 Mass. 487; White v. Nicholls, 11 U. S. 266.)
   Per Curiam.

Upon this record the jury could properly find that the defendant had no information and no belief that the plaintiff had been guilty of any wrong. The privilege of transmitting information of an alleged crime to the appropriate public officers cannot apply to a communication sent under such circumstances.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    In the Matter of the Claim of Leo Flicker, Respondent, against Mac Sign Company et al., Appellants. The State Industrial Board, Respondent.
    (Argued January 6, 1930;
    decided February 11, 1930.)

      Edward P. Mowton and H. S. Becknagel for appellants.
    The State Industrial Board erred in holding that claimant was entitled to permanent partial disability at reduced earnings, but should have awarded claimant a percentage loss of use of the right foot. (Matter of Rubenstein v. Pechter Baking Co., 224 App. Div. 324; 249 N. Y. 433; Wells v. General Carbonic Co., 224 App. Div. 805; Matter of Gross v. Hudson Reade Carp., 215 App. Div. 632; Donohue v. McKaig-Hatch, 177 App. Div. 938; 223 N. Y, 572; Dutcher v. American Express
      Co., 183 App. Div. 162; Cobb v. Library Bureau, 176 App. Div. 91; 221 N. Y. 574; Blattner v. Pa. Pro. Co., 185 App. Div. 900; Schrempp v. Talmadge Film Co., 188 App. Div. 941.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
    It was proper to make an award for reduced earnings where the accident caused an injury to the ankle of the foot and also the great toe. (Wells v. General Carbonic Co., 224 App. Div. 805; Hoffman v. Chatham L., H. & P. Co., 224 App. Div. 799; Gifers v. New York Window Cleaning Co., 224 App. Div. 792; Rubenstein v. Pechter Baking Co., 224 App. Div. 324.)
   Cardozo, Ch. J.

Claimant, while worldng for his employer, fell from a ladder, and was injured. His right to compensation is not disputed. What is questioned is merely its extent.

The fall resulted in injuries that were temporary and in others that were permanent. The temporary injuries were a sprain of the right ankle and a tearing of the ligaments. No controversy is here as to the payments due for these. The permanent injury was the fracture or chipping of the first metatarsal bone of the right foot, which affected the movement of the metatarso-phalangeal joint, and thus the movement of the great toe. There has been no injury to the toe except the consequential one resulting from the injury to the foot.

At the date of this accident, Workmen’s Compensation Law (Cons, Laws, ch. 67), section 15, subsection 3, subdivisions a to 1, established a schedule of compensation in case of disability partial in character, but permanent in quality, resulting from the loss of a member. If the lost member was a foot, the compensation was to be sixty-six and two-thirds per centum of the average wages for 205 weeks; if a great toe, the same percentage for 38 weeks, and if another toe, for 16 weeks. Partial loss of use of a member was to be deemed equivalent to proportionate partial loss of the member itself.

The same section of the statute (subsection 3, subdivision u) made provision for other cases not covered by the schedule. In such cases, compensation was to be sixty-six and two-thirds per centum of the difference between the average weeldy wages before the disability and the wage earning capacity thereafter, and was to continue indefinitely or as long as the disability continued.

The award in this case has been made upon the theory that because the use of the great toe has been affected by the injury to the bone of the right foot, the schedule of compensation for a determinate number of weeks must be rejected as inapplicable, and continuing compensation allotted under subdivision u without reference to the schedule.

We think the award has its roots in a misconception of the statute. A toe is not to be treated as a separate member from a foot where loss of use of the foot includes as a normal consequence the loss of use of the toe. There is no occasion to determine at this time how far the same rule is applicable where the consequential injuries are abnormal or extraordinary. With the reservation for greater prudence of exceptional conditions, the scheduled compensation for loss of the larger member must be accepted as compensation for the loss of its component parts." If any other rule were followed, a claimant suffering the amputation of a foot might have compensation from his employer for the loss of the foot and compensation for the loss of the five toes in addition. The fingers would also be added to the loss of a hand. No such result was intended by the framers of the statute. The smaller members (toes and fingers) are separately stated in the schedule of disabilities to cover cases of separate injuries. They are not to be considered where the injury to the member that includes them is single and entire. Compensation for loss of a toe or finger is compensation for consequential loss of function, not extraordinary or unexpected, in respect of the foot or hand (cf. Matter of Dowling v. Gates & Co., 253 N. Y. 108). Compensation for loss of a foot or hand is compensation for loss of function, not extraordinary or unexpected, in respect of atoe or finger. The whole is still equal to the sum of all its parts.

In the case now before us the evidence is uncontroverted that as a result of all the injuries, direct and consequential, there has been an impairment of five per cent of the use of the right foot. Claimant has already been paid an amount in excess of an award computed on that basis.

The order of the Appellate Division should be reversed, and the award, so far as appealed from, annulled, with costs against the State Industrial Board in the Appellate Division and in this court.

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Order reversed, etc.


author: Crane. J.

text:
    Mae L. Brearton, Appellant, v. Cora E. De Witt et al., as Executors of Elden C. De Witt, Deceased, Respondents.

      (Argued January 6, 1930;
    decided February 11, 1930.)

      William R. Willcox and Bernard H. Sandler for appellant.
    The contract is not personal on the part of respondents’ testator, but even construing it as such, his obligation is founded on a consideration fully executed on. appellant’s part so that his death does not abate the cause of action. (Decedent Estate Law, § 16; Holsman v. St. John, 90 N. Y. 461; Price v. Price, 75 N. Y. 244;
      Potter v. Van Vranken, 36 N. Y. 619; McGregor v. McGregor, 35 N. Y. 218; McNulta v. Huntington, 62 App. Div. 297.) The contract is based upon a valid consideration and no element of gift is present. (Hamer v. Sidway, 124 N. Y. 538; Meade v. Poppenberg, 167 App. Div. 411; Werner v. Werner, 169 App. Div. 9; Overton v. Williams, 139 App. Div. 177; Bean v. Trust Co., 136 App. Div. 69; Carlill v. Carbolic Smoke Ball Co., [1892] 2 L. R. 484; Adams v. Hannes, 62 Barb. 326; Devicmon v. Shaw, 69 Md. 199; Paige v. Ripley, 12 Vt. 289; Hoshor v. Kautz, 19 Wash. 258; Young v. Boyd, 107 Md. 449; Budgett v. Stratford Soc., 32 I. L. R. 378.) The contract was not illegal, void or against public policy. (People v. Allcutt, 117 App. Div. 546; 189 N. Y. 516; People ex rel. Lederman v. Warden of City Prison, 168 App. Div. 240.)

      Caruthers Ewing for respondents.
    The contract was illegal and against public policy. (Harmon v. Peats Co., 243 N. Y. 473; Foley v. Speir, 100 N. Y. 552; Leonard v. Poole, 114 N. Y. 371; Cummings v. Union Blue Stone Co., 164 N. Y. 401; Sternaman v.. Metropolitan Life Ins. Co., 170 N. Y. 13; Wood & Selick v. Ball, 190 N. Y. 217; Hart v. City Theatres Co., 215 N. Y. 322; Manson v. Curtis, 223 N. Y. 313; Carthage T. P. Mills v. Village of Carthage, 200 N. Y. 1; Fox v. Dixon, 58 Hun, 605; Accetta v. Zupa, 54 App. Div. 33.) The alleged contract imposed no obligation on either party thereto and neither had a right of action for a breach thereof. (Willetts v. Sun Mut. Ins. Co., 45 N. Y. 45; Hamer v. Sidway, 124 N. Y. 538; Grossman v. Schenker, 206 N. Y. 466; Levin v. Dietz, 194 N. Y. 376; Jermyn v. Searing, 225 N. Y. 525; Schlegel Mfg. Co. v. Cooper’s Glue Factory, 231 N. Y. 460; Heller v. Pope, 250 N. Y. 132; Heyman, Cohen & Sons v. Lurie Woolen Co., Inc., 232 N. Y. 112.) Unless there was a contract imposing mutual obligations, the facts indicate a promise to make monthly gifts. (Harris v. Clark, 3 N. Y. 93; Wilbur v. Warren, 104 N. Y. 192; Matter of James, 146 N. Y. 78.) The contract contemplated the continued existence of both parties thereto. (Lorillard v. Clyde, 142 N. Y. 456; Babbitt v. Gibbs, 150 N. Y. 281; Herter v. Mullen, 159 N. Y. 28; Gameron-Hawn Realty Co. v. Albany, 207 N. Y. 377; Nitro Powder Co. v. Agency of Can. Car & T. Co., 233 N. Y. 294; Edison El. Ill. Co. v. Thacker, 229 N. Y. 172; Ehrenworth v. Stuhmer & Co., 229 N. Y. 210; Guirizinski v. American Radiator Co., 222 N. Y. 85; Ziehen v. Smith, 148 N. Y. 558; Delaware Trust Co. v. Calm, 195 N. Y. 231; Rosenthal P. Co. v. National Folding B. & P. Co., 226 N. Y. 313.)
   Crane. J.

The complaint in this action, as supplemented by the bill of particulars, has been held to be insufficient, as not stating a cause of action, and by a motion made on the pleadings has been dismissed. The allegations, no doubt, present a peculiar case, which upon a trial may not prove to be the facts, or else by reason of other circumstances, carry an entirely different meaning. Nevertheless, the legal principles to be applied to the complaint are old and well understood.

The plaintiff states a cause of action on contract, wherein she alleges the consideration, the performance upon her part, partial performance by the deceased and his subsequent breach. On its face the pleading states a cause of action.

The facts as related are these: For six years prior to the 9th day of December, 1925, the plaintiff had suffered from a dangerous illness and disease, which from the bill of particulars proved to be syphilis. This disease was the direct result and consequence of dangerous injections, inoculations of germs administered to her by the deceased, Elden C. De Witt. In consequence of thus inoculating the plaintiff with these syphilis germs, the deceased, on the 9th day of December, 1925, made an agreement with her tending to and aiming at a cure or relief from her suffering, and a recognition of his responsibility therefor. Plaintiff on her part promised to do certain things. She promised to give up her position, by which she earned her living. She was a saleswoman in the fur department of B. Altman & Co., New York city, receiving forty dollars a week. She kept her promise and left the place. She promised to isolate herself from all society and friends, and carried out this obligation by resigning from active membership in the First Church of Spiritual Communion, of which she was vice-president, and arranging to relinquish a rooming-house which she was conducting at 112 Riverside drive. A further act was promised and performed. The plaintiff was required by her agreement to submit herself to the direction and control of Elden C. De Witt for the treatment and cure of her disease. This obligation she kept by attending the Vanderbilt Clinic on various occasions at De Witt’s direction, and taking treatment, salves and medicines administered by him or by persons under his supervision. At all times she held herself ready to do and to go as directed or requested by the deceased. She went to Florida for a two months’ rest, at his request.

What was Elden C. De Witt to do for the plaintiff? He promised by the agreement to pay the plaintiff $1,000 a month for the rest of her natural life, and he kept his promise for the period of five months, or up until May of 1926. Thereafter he failed to meet these payments, and died the 29th day of March, 1927. At the time of his death there was due and owing to the plaintiff $1,000 a month for ten months, or $10,000, and this action is brought not only for this sum, but against the executors of De Witt’s estate for damages resulting from his breach of contract.

This analysis shows an agreement on the part of De Witt to pay the plaintiff $1,000 a month during her life, in consideration for her promise to do and perform some very substantial things. The plaintiff kept her promise and performed her part of the contract up to the death of De Witt, and if the allegations be true, and the contract legal, she would have her remedy. (Werner v. Werner, 169 App. Div. 9; Adams v. Honness, 62 Barb. 326; Devecmon v. Shaw & Devries, 69 Md. 199; Paige v. Ripley, 12 Vt. 289; Hoshor v. Kautz, 19 Wash. 258; Carlill v. Carbolic Smoke Ball Co., [1892] 2 Q. B. 484.)

On first reading of this complaint, the impression may be gathered that the contract was one made between a doctor and his patient, whereby the patient agreed for a consideration to submit to the doctor’s treatment. As there is no allegation in the complaint that the deceased was a licensed practitioner, it is claimed that the agreement is illegal, as violating the laws of this State. By section 1263 of the Education Law (Cons. Laws, ch. 16), and formerly chapter 174 of the Public Health Law (Cons. Laws, ch. 45), derived from Laws of 1907, chapter 344, section 15, any person who, not being lawfully authorized to practice medicine, practices such calling within this State, is guilty of a misdemeanor. It is said that this agreement called for treatment of the plaintiff by the deceased as a physician, and that it did not appear that he was licensed to practice. The answer to this claim is that the deceased may have been a physician. Nowhere in the pleadings does it appear that he was not a physician. The presumption is that contracts are legal until it appears upon their face or by pleading that they are illegal. The illegality of a contract, unless it does appear upon the face of the complaint, is a defense to be pleaded. (Civ. Prac. Act, § 242; Milbank v. Jones, 127 N. Y. 370; Donnelly v. Bauder, 217 App. Div. 59.) If, therefore, De Witt was not a licensed physician, the defendants should so have alleged in their answer. If it should appear upon the trial of this case that this agreement called for treatment by the deceased of the plaintiff for a disease, and that he was not a licensed physician, then the ¡consideration, or part of it, for De Witt’s promise being illegal, the contract was void. (Williston on Contracts, §§ 134, 1782; Anson on Contracts [Corbin], § 261.)

The Appellate Division considered this contract to call for personal skill and knowledge, and, therefore, to end or terminate with the death of De Witt. Even if this be true, the complaint stated a good cause of action for the ten months in which he failed to pay the $1,000; and if the consideration which the plaintiff furnished by her promise and by her performance was legally sufficient, the promise of De Witt to pay her $1,000 a month during her life would be binding upon him and his estate, even if his acts or his performance should terminate on his death. A contract calling for personal skill and attention must of necessity terminate with the life of the person. The law follows this rule of necessity because it has no substitute for the special personal element contracted for. Performance of the acts called for by such contracts may end with the life of the promisor, but his other obligations may continue and survive his death. If, for instance, De Witt were a licensed physician and promised the plaintiff $1,000 a month during her life, if she would submit to experiments or operations upon her body in behalf of science, or for her cure, the obligation to pay the money upon performance by the plaintiff would not terminate at the death of De Witt. His contract was to pay, providing the consideration be legal, for the life of the obligee, not during the term of his own life. (Hamer v. Sidway, 124 N. Y. 538; Williston on Contracts, pp. 3299, 3300.)

The complaint contains many statements which may or may not be proved. As supplemented by the bill of particulars, they allege or infer that De Witt, by injections inoculated the plaintiff with syphilis germs, and that she was suffering from this disease, caused by this intentional or negligent act. If his promise was more or less to pay the plaintiff $1,000 a month during her life, in consideration or in payment for the damage caused by his tort, we would have another case altogether. A payment by a promise may be as valid as a payment by anything else of value. (Williston on Contracts, § 148, p. 330.) However, until the nature of the action is developed upon the trial, it is unnecessary for us further to consider this question.

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

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

Judgment accordingly.


text:
    Jennie L. Canfield, Respondent, v. Elmer E. Harris & Co., Appellant.
    (Argued January 6, 1930;
    decided February 11, 1930.)

      Henry Adsit Bull for appellant.
    The affirmance by the Court of Appeals in the former action was a final judgment on all issues of fact and conclusively establishes that defendant did not hold over. (Mackay v. Lewis, 73 N. Y. 382; Van Slyck v. Woodruff, 192 N. Y. 547; Tousey v. Hastings, 194 N. Y. 79; Hiscock v. Harris, 80 N. Y. 402; Roberts v. Baumgarten, 126 N. Y. 336; City Trust Co. v. Am. Brewing Co., 182 N. Y. 285; Matter of Mosher, 185 N. Y. 435; Conklin v. Snider, 104 N. Y. 641.)

      H. B. Butterfield and B. H. Butterfield for respondent.
    The judgment based upon the stipulation is not a bar to this action. (Maloney v. Nelson, 158 N. Y. 351; Bell v. Merrifield, 109 N. Y. 202.)
   O’Brien, J.

Plaintiff’s predecessor in title leased certain premises to defendant for a term of years and defendant, entering into possession, paid rent for the full term ending October 31, 1926.

The complaint alleges that, after the expiration of the term, defendant neglected to vacate and surrender possession; that in fact it remained in possession and occupancy as a tenant holding over; that plaintiff elected to treat it as a tenant for one year subsequent to the expiration of the term prescribed in the lease and that demand was duly made for rent for November, 1926, and following months. Judgment is demanded only for such rent as is' alleged to have accrued during the time extending from February, 1927, to October 31, 1927. The answer denies that defendant held over. Then it alleges and the reply admits that plaintiff brought an action to recover the monthly rentals for November and December, 1926, and January, 1927; that in that action the allegations and denials of holding over were identical with those in the present action; that plaintiff recovered judgment which was reversed by the Appellate Division and a new trial ordered; that, on plaintiff’s appeal to the Court of Appeals with stipulation for judgment absolute in the event of affirmance, this court affirmed the order of the Appellate Division with direction for the entry of judgment absolute on the stipulation and that judgment absolute in favor of defendant was entered. The certified questions require answers whether the former judgment is a bar to the first cause of action pleaded in the present complaint and whether defendant is entitled to an order dismissing this cause of action.

The Appellate Division reversed the former judgment and ordered a new trial on the ground that error had been committed in ruling, as matter of law, that defendant had become a holdover tenant. When a party refuses to accept a new trial but, instead, gives a stipulation in this court for judgment absolute, it must abide by the result. The object of such a stipulation is to shorten procedure by which a decision can be had on a question which lies at the very foundation of the action. (Moloney v. Nelson, 158 N. Y. 351, 354.) The judgment of this court was to the effect that for rent alleged to have accrued during the first three months subsequent to the expiration of the lease plaintiff had no cause of action. She would have had a perfect case if defendant had held over. There was a complete adjudication of the issue whether defendant held over. (Cornwell v. Sanford, 208 N. Y. 126.) The question of fact could have been litigated but plaintiff refused to put it to the test of a jury trial. She submitted the whole controversy upon the result to be reached in this court (Roberts v. Baumgarten, 126 N. Y. 336, 341), and her judgment in the County Court that defendant was a holdover tenant was decided to be wrong. The judgment in this court conclusively settling the issue is founded solely upon the consent of the party making the stipulation that a certain result should follow the decision of this court .on questions of law presented to it by the record. (Roberts v. Baumgarten, supra.) Its effect is similar to the results following a judgment taken by default (City Trust S. D. & S. Co. v. American Brewing Co., 182 N. Y. 285, 295; Gates v. Preston, 41 N. Y. 113) which has the same consequences as one based upon a verdict. The general rules governing judgments apply to those taken by consent or upon stipulation which, in the case of individuals and private corporations, constitute a bar to the same extent as other judgments. A judgment by confession stands in much the same position as one by stipulation or consent and is a conclusive adjudication of all matters embraced in it and a bar to any subsequent action on the same claim. (Freeman on Judgments, pp. 1393-1398; Davies v. Mayor, etc., 93 N. Y. 250; Culross v. Gibbons, 130 N. Y. 447.)

The order of the Appellate Division and that of the Special Term should be reversed and the motion granted, with costs in all courts, and the questions certified answered yes.”

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

Orders reversed, etc.


text:
    In the Matter of the Will of Nicholas Hardiker, Deceased. Stephen S. Hardiker, Appellant; William Hardiker et al., Respondents.
    (Argued September 30,1929;
    decided October 15,1929.)

      Stephen V. O’Gorman for appellant.

      Matthew X. Wagner for respondents.
   Order affirmed, with costs payable out of the estate; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Eleanor A. Grebe, Respondent, v. William E. Hall, Appellant, Impleaded with Another.
    (Submitted September 30, 1929;
    decided October 15, 1929.)

      Milton M. Eiscnberg and Ralph Weller for appellant.

      Maurice Janklow for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of Ruth J. Langdon, Appellant, v. Teachers’ Retirement Board of the City of New York, Respondent.
    (Argued September 30, 1929;
    decided October 15, 1929.)

      Leonard M. Wallstein, Ralph M. Frink and Benjamin Menschel for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Willard S. Allen, William E. C. Mayer, Thomas W. A. Crowe and J. Joseph Lilly of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of Jennie Grodman et al., Appellants, v. William E. Walsh et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents. Daleson Realty Corporation, Respondent.
    (Submitted September 30, 1929;
    decided October 15, 1929.)

      Alfred A. Walter and Murray Rislcin for appellants. Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and Willard S. Allen for Board of Standards and Appeals, respondents.

      Nathan D. Shapiro and Matthew F. Fagan for Daleson Realty Corporation, respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of Gustave J. Fuerth, Appellant, v. Charles W. Berry, as Comptroller of the City of New York, et al., Respondents.
    (Argued September 30, 1929;
    decided October 15, 1929.)

      Harry B. Chambers and Douglas Mathewson for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Elliot S. Benedict and Charles W. Miller of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of the Claim of Samuel Hudak against Erie Railroad Company, Respondent. State Industrial Board, Appellant.
    (Argued October 1, 1929;
    decided October 15, 1929.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for appellant.

      Edward B. Horning for respondent.
   Order affirmed, with costs against the State Industrial Board; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of the Claim of Patrick Browne, Respondent, against Dyker Construction Company, et al., Appellants. State Industrial Board, Respondent.
    (Argued October 1, 1929;
    decided October 15, 1929.)

      Edward P. Mowton for appellant.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of the Claim of Adeline V. Borton, Respondent, against McClintic-Marshall Company, Appellant. State Industrial Board, Respondent.
    (Argued October 1, 1929;
    decided October 15, 1929.)

      G. Everett Hunt for appellant.

      Hamilton Ward, Attorney-General (E, C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of the Claim of Ida Barbour, Respondent, against Broadway Window Cleaning Company et al., Appellants. State Industrial Board, Respondent.
    (Argued October 1, 1929;
    decided October 15,1929.)

      William F. McNulty, Harold It. Medina, Eugene A. Sherpick and Jeremiah Connor for appellants. •

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of the Claim of Jennie Westerman, Respondent, against Equipment and Supply Company, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Submitted October 1, 1929;
    decided October 15, 1929.)

      Jeremiah F. Connor and William A. Earl for appellants.

      Hamilton Ward, Attorney-General {E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Crane, Kellogg, O’Brien and Hubbs, JJ. Dissenting: Cardozo, Ch. J., and Lehman, J.


text:
    In the Matter of the Claim of Milton Kingsley et al., Respondents, against William J. Bender et al., Appellants. State Industrial Board, Respondent.
    (Argued October 1, 1929;
    decided October 15, 1929.)

      T. Carlyle Jones and Howard F. Barnes for appellants.

      Hamilton Ward, Attorney-General {FI. C. Aiken of counsel), for respondent.
   Order affirmed, with costs, on opinion in Matter of Decker v. Pouvailsmith Corporation (252 N. Y. 1); no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    The People of the State of New York ex rel. Anna M. Wood, as Trustee of School District Number 5 of the Town of Huntington, et al., Appellants, v. Frank B. Graves, as Commissioner of Education of the State of New York, et al., Respondents.
    (Argued September 30, 1929;
    decided October 15, 1929.)

      Willard M. Baylis for motion.

      Lewis L. Delafield, Jr., opposed.
   Motion granted.


text:
    Lord & Burnham Company, Respondent, v. The City of New York, Appellant.
    (Submitted October 7, 1929;
    decided October 15, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 251 N. Y. 198.)


text:
    Bula E. Croker, Respondent, v. Ethel White, Appellant.
    (Argued October 9, 1929;
    decided October 22, 1929.)

      Frederick B. Byan and Samuel A. Adamson for appellant.

      Edmund L. Mooney and Wilber W. Chambers for respondent.
   Judgment reversed, with costs in all courts, and motion for summary judgment denied, with ten dollars costs on authority of Croker v. Croker (252 N. Y. 24); no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.