author: Dye, J.

text:
    In the Matter of Delaware County Electric Cooperative, Inc., Appellant, against City of New York et al., Respondents.
    Argued March 10, 1952;
    decided June 5, 1952.

      Francisco Penberthy and Milton D: Nelson for appellant.
    I. The lease does not preclude the claim of Cooperative nor deny it the damages to which it is entitled under title K of the Administrative Code, the Constitution of the United States or the Constitution and laws of the State. The precise language of the lease restricts and limits the release provisions of paragraphs 11 and 12 and each and all of the other terms and conditions of the lease exclusively to the demised eight crossings. II. It was not the purpose or intention of the lease to give an unlimited future general release. (Eestatement, Contracts, § 236, cl. [b].) III. The specific language of paragraphs 11 and 12, whether read in or out of context, provides only for a limited release on the leased crossings. (3 Williston on Contracts, § 618, pp. 1779-1780; Eestatement, Contracts, § 235, cl. [c]; Empire Properties Corp. v. Manufacturers Trust Co., 288 N. Y. 242; Halsted v. Globe Ind. Co., 258 N. Y. 176; Matter of Gillespie [Central Hudson Gas & Elec. Corp.], 263 App. Div. 175, 288 N. Y. 514; Matter of Bensel, 140 App. Div. 806; People ex rel. Burhans v. City of New York, 198 N. Y. 439; Matter of Board of Water Supply of City of N. Y., 211 N. Y. 174; Matter of City of New York v. Loomis, 199 Misc. 915; Haskell v. Miller, 221 App. Div. 48, 246 N. Y. 618; Williston on Contracts [Rev. ed.], § 619; Mitchell v. Mitchell, 170 App. Div. 452; Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182; Simon v. Etgen, 213 N. Y. 589.) IV. The future release contended for by the city is not favored by the courts and as such should be given no effect or be most strictly construed. (McCabe v. New York Central & H. R. R. R. Co., 139 App. Div. 698; Heuman v. Powers Co., 226 N. Y. 205; White v. Southern Ry. Co., 142 S. C. 284.) V. The future “ release ” claimed by the city does not preclude Cooperative’s claim since the city kept Cooperative in ignorance of its intention. (Lee v. Guardian Life Ins. Co. of America, 187 Misc. 221, 267 App. Div. 985; Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182; Insurance Co. of North America v. Whitlock, 216 App. Div. 78.) VI. The interpretation of the lease urged by Cooperative should be adopted rather than that of the city since it was drafted by the city and language will be interpreted most strongly against the party using it. (Taylor v. United States Cas. Co., 269 N. Y. 360; Hartol Products Corp. v. Prudential Ins. Co., 290 N. Y. 44; Bushey & Sons v. American Ins. Co., 237 N. Y. 24; Bristol v. Cornell Univ., 237 App. Div. 771; Novak & Rehner v. State of New York, 192 Misc. 66; Lee v. Guardian Life Ins. Co. of America, 187 Misc. 221, 267 App. Div. 985.) VII. The court could and should reform the lease, if necessary, to give effect to the true intent and enforce the same as if it were reformed without the necessity of having a separate reformation proceeding. (Nellis v. Western Life Ind. Co., 207 N. Y. 320; Maher v. Hibernia Ins. Co., 67 N. Y. 283; Susquehanna S. S. Co. v. Andersen & Co., 239 N. Y. 285; Lewitt & Co. v. Jewelers’ Safety Fund Soc., 249 N. Y. 217; MacDonald v. Crissey, 215 N. Y. 609; Albany City Sav. Inst. v. Burdick, 87 N. Y. 40; Bacot v. Fessenden, 139 App. Div. 647; Manheimer v. Kuhn, 173 App. Div. 135; Le Gendre v. Scottish Union & Nat. Ins. Co., 95 App. Div. 562.)

      Denis M. Hurley, Corporation Counsel (Francis T. Murray, Seymour B. Quel and Robert E. Hugh of counsel), for respondents.
    I. All claims under title K were released. Moreover, claims of the types and in the towns enumerated could not arise under title K in respect to petitioner’s line on the leased locations but only in respect to its lines located on additional lands as the same were acquired. Accordingly, the intention to release as to all of petitioner’s lines in the taking area is obvious and was properly given effect. (Murphy v. City of New York, 190 N. Y. 413; Brooklyn City R. R. Co. v. Kings Co. Trust Co., 214 App. Div. 506, 242 N. Y. 531; Stewart v. Barber, 182 Misc. 91.) II. The intention of the parties to release all claims in respect to petitioner’s lines on lands in the reservoir area “ when, as and if ” such lands were acquired by the city, being expressed in unambiguous language leaving no fair reason for doubt as to its meaning, there is no room for construction, and the language of the agreement is controlling and must be given effect. (Gans v. Ætna Life Ins. Co., 214 N. Y. 326; Foot v. Ætna Life Ins. Co., 61 N. Y. 571; Dwight v. Germania Life Ins. Co., 103 N. Y. 341.] HI. Where the language of a contract is clear and unambiguous, its meaning is to be determined by the language alone, and without regard to extraneous facts. (Nau v. Vulcan Rail & Constr. Co., 286 N. Y. 188; St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N. Y. 30; De Angelis v. White-All Corp., 273 App. Div. 873, 893.) IV. No question of reformation of the lease was presented to, passed upon by, or affected the decision of, the court below and accordingly is not involved on the present appeal.
   Dye, J.

By written lease dated December 13, 1945, the City of New York granted to the Delaware County Electric Cooperative, Inc., the right to construct and operate its electric transmission and distribution lines and appurtenances for a term of ten years, unless sooner terminated on ninety days ’ notice of cancellation, over lands it had acquired from the Delaware & Northern Railroad Company and no longer used by it for railroad purposes. These lands were within the Delaware Water Plan and located in the part thereof described as the Pepacton Dam and Reservoir on the east branch of the Delaware River in the towns of Colchester and Andes, Delaware County. The premises described consisted of eight designated locations crossing the unused railroad right of way. The lease recited that “ The premises herein demised shall be subject to the following terms and conditions ” which were set out in 13 separately numbered paragraphs, none of which concern us here except insofar as they reflect light on the scope and meaning attributable to the release provisions numbered 11 and 12 which, for convenience, are quoted, viz.:

11. The Tenant hereby remises, releases and forever discharges the City and the Landlord of and from any and all hi aims and cause or causes of action whatsoever, which it has, or which it or its successors or assigns may hereafter have under the provisions of Title K of said Administrative Code, if, as and when the City shall acquire any additional lands for water supply purposes in said Towns of Colchester, Andes and Middle-town, and the Tenant agrees that, notwithstanding any provision of any general, special or local law or any charter and particularly the provisions of said Title K, the City shall not be required to

(a) Provide a substitute right of way for its electric transmission and distribution lines and appurtenances;

(b) Relocate said lines and appurtenances;

“ (c) Permit the perpetual use of the premises herein demised and said additional lands for said lines and appurtenances;

“ (d) Compensate the Tenant for any expense, loss or damages caused by reason of removing and relocating said lines and appurtenances.

“ 12. The Tenant covenants, at its own cost and expense, if, as and when the City shall acquire said additional land for water supply purposes in said Towns of Colchester, Andes and Middletown, to remove said electric transmission and distribution lines, and their appurtenances, notwithstanding any provision of any general, special or local law or any charter and particularly the provisions of said Title K.”

When the city, at a subsequent date prior to the termination of the lease, instituted condemnation proceedings pursuant to title K of chapter 41 of the Administrative Code of the City of New York (L. 1937, ch. 929) to acquire other lands on which were already located electric lines and facilities belonging to the petitioner, the latter filed a claim for resulting loss. This the city rejected on the theory that the subject matter had therefore been released by the petitioner under the lease provisions above quoted. The Appellate Division accepted this view, reversed the order of the Supreme Court which had directed the city to have the petitioner’s claim heard and determined, and dismissed the claim.

We cannot agree that the release was intended to cover premises other than the premises demised. The lease must he read as a whole and in connection with title K of the Administrative Code, pursuant to which it had been executed. When so read, it becomes manifestly clear that the enunciated conditions including the release clauses, had reference only to the electric lines and appurtenances belonging to the petitioner thereafter installed on the demised premises and that the phrase ‘ if, as and when the City shall acquire any additional lands for water supply purposes ” had reference only to the time when the release was to become effective. That time was when, if ever, the old railroad right of way was actually needed for the construction of the Pepacton Reservoir, and the tenant was required “ to remove said electric transmission and distribution lines, and their appurtenances ” (emphasis supplied). It was then that the city was to be released from any claims to relocate ” and to provide a substitute right of way ” for the said ” electric lines erected by the petitioner on the demised locations. When so read, it is clear that the release clauses are limited in scope and meaning to the premises demised.

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

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

Ordered accordingly.


source: Caselaw Access Project

author: Lottghrax, Ch. J.

license: Public Domain

text:
    Holmes Electric Protective Company, Appellant, v. City of New York et al., Respondents.
    Argued March 5, 1952;
    decided June 5, 1952.

      Frank A. Frits, Arthur P. West and Joseph B. Diamond for appellant.
    I. The utility tax laws were and are inapplicable to plaintiff and to the receipts derived from its business since it is neither a utility nor does it sell utility services within the meaning of the utility tax law. (Local Laws, 1933, No. 19 of City of New York; Matter of Holmes Elec. Protective Co., 37 P. U. R. [N. S.] 49; Matter of Holmes Elec. Protective Co. v. McGoldrick, 262 App. Div. 514, 288 N. Y. 635; Matter of United Parcel Service of N. Y. v. Joseph, 272 App. Div. 194, 297 N. Y. 1004.) II. The utility tax laws were designed to tax only utilities and sales of utility services. The courts have uniformly rejected all efforts to impose taxes thereunder on receipts derived from the sale of nonutility services. (Matter of Holmes Elec. Protective Co. v. McGoldrick, 262 App. Div. 514, 288 N. Y. 635; Holmes Elec. Protective Co. v. Williams, 228 N. Y. 407; Matter of United Parcel Service of N. Y. v. Joseph, 272 App. Div. 194, 297 N. Y. 1004; Matter of 320 W. 37th St. v. McGoldrick, 281 N. Y. 132; Matter of 339 Central Park West v. Graves, 284 N. Y. 691; Matter of 436 W. 34th St. Corp. v. McGoldrick, 288 N. Y. 346; Empire City Subway Co. v. City of New York, 168 Misc. 775.) III. The 1938 amendment of the city’s utility tax law, adding the definition of “ telegraphic service ’ ’, does not lessen the controlling effect of the decision of the courts in the prior Holmes case (262 App. Div. 514, affd. 288 N. Y. 635), nor subject plaintiff’s receipts from its protective service to the utility tax. (People v. Ryan, 274 N. Y. 149; President & Directors of Manhattan Co. v. Kaldenberg, 165 N. Y. 1; Howitt v. Street & Smith Publications, 276 N. Y. 345; Matter of 339 Central Park West v. Graves, 260 App. Div. 265, 284 N. Y. 691; Matter of United Parcel Service of N. Y. v. Joseph, 272 App. Div. 194, 297 N. Y. 1004.) IV. The 1938 amendment consisting of the definition of “ telegraphic service ” is at best obscure and ambiguous and must therefore be construed in favor of plaintiff. (Matter of Brooklyn Union Gas Co. v. McGoldrick, 270 App. Div. 186, 298 N. Y. 536.) V. The definition of “ telegraphic service ” added to the utility tax laws for the period beginning July 1, 1938, as construed by the City of New York and the courts below, is beyond the power of the city to enact under enabling legislation. The city’s power with respect to utility taxation is limited to the tax base specified in section 186-a of the Tax Law. Such base does not include receipts from plaintiff’s protective service. (Matter of Kesbec, Inc., v. McGoldrick, 278 N. Y. 293; Matter of Brooklyn Union Gas Co. v. McGoldrick, 270 App. Div. 186, 298 N. Y. 536; Williamsburgh Power Plant Corp. v. City of New York, 255 App. Div. 214, 280 N. Y. 551; Matter of 339 Central Park West v. Graves, 260 App. Div. 265, 284 N. Y. 691.) VI. The application of the utility tax laws to plaintiff is unconstitutional as discriminatory. (Matter of 436 W. 34th St. Corp. v. McGoldrick, 288 N. Y. 346; Matter of Merchants Refrig. Co. v. Taylor, 275 N. Y. 113; Matter of United Parcel Service of N. Y. v. Joseph, 272 App. Div. 194, 297 N. Y. 1004; Matter of 320 W. 37th St. v. McGoldrick, 281 N. Y. 132.)

      Denis M. Hurley, Corporation Counsel (Morris L. Heath and Stanley Buchsbaum of counsel), for respondents.
    I. The 1938 amendment to the New York City utility tax law made the tax applicable to plaintiff with respect to its central station service. II. The situation which existed at the time of the 1938 amendment clearly indicates that it was intended to cover plaintiff. (Holmes Elec. Protective Co. v. Williams, 228 N. Y. 407; St. Nicholas Cathedral v. Kedroff, 302 N. Y. 1; Empire City Subway Co. v. City of New York, 168 Misc. 775.) III. Imposition of the tax on plaintiff is consistent with the pattern of the tax. (Matter of Merchants Refrig. Co. v. Taylor, 275 N. Y. 113; Matter of 436 W. 34th St. Corp. v. McGoldrick, 288 N. Y. 346; Holmes Elec. Protective Co. v. Williams, 228 N. Y. 407; Pooley v. City of Buffalo, 122 N. Y. 592; Matter of Zinn, 185 Misc. 604; Allen v. Stevens, 161 N. Y. 122; Matter of Sacharoff v. Corsi,
      294 N. Y. 305.) IV. The Legislature has granted the city the power to impose the tax. (New York Steam Corp. v. City of New York, 268 N. Y. 137; Matter of Chatlos v. McGoldrick, 302 N. Y. 380; Matter of United Parcel Service of N. Y. v. Joseph, 272 App. Div. 194, 297 N. Y. 1004.) V. The application to plaintiff of a tax which is also applicable to utilities and other quasi-utilities does not deny it the equal protection of the laws. (Rapid Transit Corp. v. New York, 303 U. S. 573; Madden v. Kentucky, 309 U. S. 83; Matter of Merchants Refrig. Co. v. McGoldrick, 275 N. Y. 113; Matter of 436 W. 34th St. Corp. v. McGoldrick, 288 N. Y. 346; Holmes Elec. Protective Co. v. Williams, 228 N. Y. 407; Ghee v. Northern Union Gas Co., 158 N. Y. 510; People ex rel. West Side Elec. Co. v. Consolidated Tel. & Elec. Subway Co., 187 N. Y. 58; Blanshard v. City of New York, 262 N. Y. 5; Oklahoma Tax Comm’n. v. U. S., 319 U. S. 598; Matter of Owl Protective Co. v. Public Service Comm., 254 App. Div. 600.)
   Lottghrax, Ch. J.

The plaintiff company conducts in the city of New York a business through which it safeguards buildings in that city against burglary or other unlawful entry (see Penal Law, art. 38). To that end, the company installs in every building committed to its protection a combination of electric devices whereby, in the event of a wrongful breaking or entry, an alarm is mechanically transmitted by wire to one of the company’s offices from which guards in its own employ or city police are thereupon notified to go to the site of the disturbance.

The defendants — the City of New York and officers charged with the enforcement of its utility tax laws — characterize the plaintiff as a utility engaged in furnishing or selling telegraph service and on the basis of that classification the city has collected taxes upon the gross operating income which the company gets from its above-mentioned protective business. In this action, the company demands a judgment (1) declaring such taxes to be illegal, null and void, and (2) directing refund of payments thereof that were made by it under protest.

The corbplaint was dismissed by the court at Special Term. The Appellate Division affirmed the judgment of dismissal, one Justice dissenting, and the plaintiff then appealed to us from the judgment that was entered upon the order of the Appellate Division.

In 1942, we affirmed a decision of that court whereby the business then carried on by the plaintiff company in the city of New York was declared not to be the sale of electric telephone or telegraph service, within the meaning of the utility tax laws which at that time were in force in that city (Matter of Holmes Elec. Protective Co. v. McGoldrick, 288 N. Y. 635). The business now conducted by the company in the city of New York is in no wise different from the business which it was conducting in that city when this court decided Matter of Holmes Elec. Protective Co. v. McGoldrick (supra). Hence the judgment here demanded by the company is required by the cited case, unless a contrary determination is now called for by a definition of the phrase “ telegraphic service ” which became part of the utility tax laws of the city of New York in 1938, after commencement of the litigation which this court resolved in the cited case.

The 1938 definition of telegraphic service ” is in text as follows: “ 8. The term 1 telegraphic service ’ shall include any service requiring the use of electric or telegraph wires, equipment or device, instruments or any other means employed or employable in the transmission of messages, signals, alarms, notices, news, pictures, music or information of any kind.” (Local Laws, 1938, No. 22 of City of New York; Administrative Code of City of New York, § Q41-1.0.) But that 1938 definition cannot now be taken to have altered the significance which in 1942 this court assigned to the phrase ‘ ‘ telegraph service ”, when we adjudged that the then business of the company was service of a different character. For no claim has been made of the occurrence of any change in the service supplied by the company after 1942 when it was not engaged in the sale of telegraph service ”, as we decided in Matter of Holmes Elec. Protective Co. v. McGoldrick (supra).

Perhaps it should be added that the power of a city to tax utilities is limited by section 186-a of the Tax Law (see, too, General City Law, § 20-b; Matter of Brooklyn Union Gas Co. v. Joseph, 298 N. Y. 536). The City of New York, of course, was and is bound by section 186-a. No definition of telegraphic service ” is to be found therein. Nor was this omission inadvertent. Indeed in 1942, the Legislature was requested to include in the State Tax Law and in the State General City Law the above definition of “ telegraphic service ” which since 1938 has been part of the New York City utility tax laws that are here in question (see 1942 Assem. Pr. No. 688, Int. No. 654; 1942 Assem. Pr. Nos. 2539, 2614, 2633, Int. No. 2054; and Sen. Pr. No. 621, Int. No. 550, of Senate bills of the same year). These items of legislative history indicate an unwillingness of the legislators of the State to adventure themselves with the New York City definition of telegraphic service ” which that city has heretofore pressed upon them — a fact that seems to us to be significant (see McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 124; Woollcott v. Shubert, 217 N. Y. 212, 221; Travis v. American Cities Co., 192 App. Div. 16, 27).

In short, the power of the city to tax utilities was not enlarged when it adopted its own definition of “ telegraphic service ”.

The judgment of the Appellate Division and that of Special Term should be reversed, with costs in all courts, and the case remitted to Special Term for further proceedings not inconsistent with this opinion.

Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgments reversed, etc.


author: Froessel, J.

text:
    Stephen Hudak, Appellant, v. Hornell Industries, Inc., Respondent. Joseph Stika, Appellant, v. Hornell Industries, Inc., Respondent.
    Argued March 12, 1952;
    decided June 5, 1952.

      Albert E. Hollis for appellants.
    I. The contract is clear and unambiguous and the trial court erred in attempting to construe the same. (17 C. J. S., § 294, pp. 683-685; First Nat. Bank v. National Sur. Co., 228 N. Y. 469; Streat Coal Co. v. Frankfurt Gen. Ins. Co., 237 N. Y. 60; Central Union Trust Co. v. Trimble, 255 N. Y. 88; Heller v. Pope, 250 N. Y. 132; Wenig v. Glens Falls Ind. Co., 294 N. Y. 195; Gillet v. Bank of America, 160 N. Y. 549; Grundt v. Shenk, 222 App. Div. 82, 248 N. Y. 602; London Produce Co. v. Poels & Brewster, 199 App. Div. 623; Matter of Loew’s Buffalo Theatres, 233 N. Y. 495; Schweinburg v. Altman, 145 App. Div. 377.) II. Neither the trial court nor the Appellate Division correctly interpretated the clear and unambiguous language of the contract. (17 C. J. S., § 296, pp. 702-707.) III. By the terms of the contract defendant agreed to employ the two plaintiffs for a definite period of one year. (Rotnofsky v. Capitol Distributors, 262 App. Div. 521.) IV. Defendant, having prevented plaintiffs from performing their part of the contract, must respond in damages. V. The closing of defendant’s plant did not affect plaintiffs’ rights under the contract. (Central Union Trust Co. v. Trimble, 255 N. Y. 88.)

      W. Earle Costello for respondent.
    I. There was no contractual obligation requiring defendant to continue plaintiffs in its employ for any stated definite term; or to pay them their weekly wages subsequent to cessation of its business operations. (Watson v. Gugino, 204 N. Y. 535; Rotnofsky v. Capitol Distributors, 262 App. Div. 521.) II. The Trial Justice properly construed the contract and his determination as to its legal implications was entirely correct. (Amelotte v. Dold Packing Co., 173 Misc. 477, 260 App. Div. 984; Union Drawn Steel Co. v. National Labor Relations Bd., 109 F. 2d 587; Uneeda Credit Clothing Stores v. Briskin, 14 N. Y. S. 2d 964.) III. The trial court properly found the intention of the contracting parties as .expressed in the language contained in such agreement. (C. J. S., Contracts, § 297.) IV. The issues raised by the pleadings as regards compliance with a condition precedent, i. e., a determination of wrongful discharge by arbitration, must necessarily be resolved in favor of defendant. (2 Williston on Contracts [Rev. ed.], § 364-A; Evans v. Johnston, 300 Ill. App. 78; Kelly v. Grimshaw, 161 Kan. 253; Rolandez v. Star Liquor Dealers, 257 App. Div. 97.)
   Froessel, J.

Plaintiffs in these companion actions, suing as third-party beneficiaries, seek damages for alleged breach of a contract made between defendant employer and the Machine Printers Beneficial Association, the union to which plaintiffs belonged since 1933. They had been employed by defendant since June, 1940, Hudak as foreman textile printer and Stika as journeyman printer. The union and defendant had entered into contracts annually since 1940. Their latest agreement, the one in controversy, was entered into on August 4, 1948, and provided, among other things, as follows:

“ Section 1. Salary and Hours

“ The Company agrees to continue to employ the members of the Association now presently in the employ of the Company during the period covered by this Agreement and guarantees during said period to pay each journeyman printer a weekly wage of One Hundred Twenty ($120.00) Dollars per week.

Section 3.

‘ ‘ A printer may be discharged only for just cause; and, likewise, a printer shall have the right to withdraw from said employment. The cause for discharge shall be made known to said printer and to the District Director of the Association. If the District Director of the Association questions the sufficiency or fairness of the alleged cause of the discharge, the sufficiency or fairness of the cause of the discharge shall be determined in accordance with the procedure specified in Section 6 hereof. * * *

“ Section 6.

Whenever, during the life of this agreement, any question relating to the discharge of a journeyman printer, or to wages and working conditions * * * cannot be agreed upon between representatives of the Company and the Association, it is to be submitted for decision to a Board of Arbitration * • •

“ Section 9.

‘ ‘ This Agreement * * * shall be in full force and effect from and after the 1st day of August, A.D. 1948, up to and including the 31st day of July, A.D. 1949.”

Plaintiff Hudak also claims to have had a separate oral agreement with defendant, pursuant to which he was to receive as foreman extra compensation of $23 per week.

On January 31, 1949, plaintiffs were told there would be no work for the rest of the week. The next day, defendant discontinued its machine dye printing operations and closed its business shortly thereafter. It was sold at auction on March 24, 1949. The corporation was still maintained, however, for the purpose of liquidating certain business assets. Defendant’s attorney testified that defendant had operated at substantial losses in 1948 and 1949, but that it was never bankrupt or insolvent. Plaintiffs subsequently obtained employment with other firms for part of the unexpired period of one year mentioned in section 9 of the foregoing agreement, and also received some unemployment compensation.

After a trial before a jury, motions were made for a directed verdict and the trial court dismissed the complaints, concluding that the agreement did not constitute a contract to hire plaintiffs for a definite term, which determination was unanimously affirmed by the Appellate Division without opinion. Upon this appeal, appellants contend: (1) that the lower courts erred in their interpretation of the contract, and (2) by the terms thereof, defendant agreed to employ plaintiffs for the period of one year. Defendant maintains (a) that the agreement did not constitute a contract of employment for a definite term, but was nothing more than a standard collective bargaining agreement; (b) that if construed as a personal employment contract, it lacked mutuality; (c) that plaintiffs failed to comply with a condition precedent, viz., a determination by arbitration of the wrongfulness of the discharge; and (d) that plaintiffs were not proper parties plaintiff.

Here, we do not merely have the ordinary collective bargaining agreement providing for the employment of union labor generally, but much more. In its first paragraph, the agreement designates the union as “ the Association ’ (which term shall include its present members and those persons who may become members after the date of this Agreement) ”. By section 1 thereof, as before noted, defendant “ agrees to continue to employ ” the union’s members now presently in its employ during the period covered by this Agreement [one.year] and guarantees during said period to pay each journeyman printer a weekly wage of One Hundred Twenty ($120.00) Dollars per week.”

It would be difficult indeed to employ clearer language to express a definite and unequivocal promise on the part of defendant to employ plaintiffs for a stipulated compensation and for a fixed period of one year; agrees * * * to employ” and guarantees # * * to pay ” are indicative of contractual obligations. There were but two other journeyman printers — four in all — who were members of the union then in the employ of defendant. The description was virtually tantamount to naming them, and the designation Association ” expressly included them. Defendant and its approximately one hundred and fifty other employees were dependent upon the concededly special skill of these four men.

In concluding that section 1 of the agreement merely identifies those printers who are to be employed during the term of the contract should operations continue, the trial court relied on Rotnofsky v. Capitol Distributors Corp. (262 App. Div. 521). That case is clearly distinguishable. There, a labor union to which plaintiff belonged, entered into a contract with defendant employer. The contract was a typical collective bargaining agreement, nothing more. It provided that defendant would employ only chauffeurs and helpers who were members of the contracting union. The agreement did not include the right of continuous employment for the balance of the contract period; it related solely to the period during which the collective bargaining agreement would be enforcible. The purpose of the agreement was to insure the retention of union men, and not to provide any fixed period of continuous employment for individual employees.

The agreement before us, however, specifically provides that designated employees were to be employed for the contract period, and was limited to that small group of union members ‘ ‘ now presently in the employ of the Company ’ ’. It is obvious that the parties intended the agreement to be more than a mere contract for the hiring of union men generally. In view of the unambiguous language of the contract, it bears no other reasonable construction than a specific undertaking on the part of defendant to hire plaintiffs for a fixed period and for a stipulated compensation, as it had done for a number of years prior thereto.

Nor do we find lack of mutuality here because an employee might withdraw on giving one week’s notice. The agreement conferred other benefits upon the employer which were ample consideration for the employer’s undertaking. For the purposes of facilitating the peaceful adjustment of differences that may arise from time to time and of promoting harmony and efficiency to the end that the company, together with the Association and its members, may be mutually benefited ”, the union gave the employer a labor contract, and promised, among other things, to order its members to return to work in the event of an unauthorized work stoppage or strike and to declare publicly that such action is unauthorized. Thus, valid consideration ran to defendant from the union and its members ” for defendant’s undertaking to employ plaintiffs for the fixed period.

Nor may defendant avoid its contractual obligations because of the discontinuance of its business where, as here, it remains a solvent corporation, there is no impossibility of performance, and. its dissolution is not “ involuntary ” or compulsory (People v. Globe Mut. Life Ins. Co., 91 N. Y. 174, 179-180; Parsil v. Emery, 242 App. Div. 653, 654; 6 Williston on Contracts, § 1960, pp. 5500-5501; Restatement, Contracts, § 459, illustration 10; see, also, Carouso v. Empire Case Goods Co., 297 N. Y. 514; Brearton v. De Witt, 252 N. Y. 495, 501; Assets Realization Co. v. Roth, 226 N. Y. 370, 376; Stock Corporation Law, § 105, subds. 8, 9).

Defendant’s contention that plaintiffs may not maintain these actions inasmuch as they failed to arbitrate any question as to the wrongfulness of the discharge, pursuant to sections 3 and 6 of the agreement, is likewise without merit. The record does not disclose that there was a “ discharge ” which was made known ” to the district director; no dispute arose between defendant and the Association. The instant action is between two individual employees and defendant.

Defendant’s final contention that plaintiffs are not proper parties plaintiff must also fall. Inasmuch as the contract directly affected these individual employees, there appears to be no good reason why they may not assert their rights thereunder as third-party beneficiaries (Gulla v. Barton, 164 App. Div. 293; see, also, J. I. Case Co. v. Labor Board, 321 U. S. 332, 336; Barth v. Addie Co., 271 N. Y. 31; Lawrence v. Fox, 20 N. Y. 268; 81 A. L. R. 1271, 1279; 95 A. L. R. 10, 41).

With, respect to plaintiff Hudak’s claim for $23 a week for the unexpired period of the contract as additional compensation for his services as foreman, it appears that his oral agreement with defendant in this respect was separate and apart from the union contract. Whether the oral agreement was for the period specified in the union contract or terminable at will, and whether Hudak sustained any damages thereunder, are questions of fact to be determined by the trial court.

In each case: The judgment of the Appellate Division and that of Trial Term should be reversed, with costs to abide the event, and the case remitted to Trial Term for further proceedings not inconsistent with this opinion.

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

Judgments reversed, etc. ~


author: Froessel, J. Fuld, J.

text:
    In the Matter of the City of New York, Appellant and Respondent, Relative to Acquiring Title to Gillen Place, from Bushwick to Jamaica Avenues, in the Borough of Brooklyn. Brooklyn Union Gas Company, Respondent and Appellant; Consolidated Edison Company of New York, Inc., Respondent.
    Argued March 10, 1952;
    decided June 5, 1952.

      Denis M. Hurley, Corporation Counsel (Reuben Levy, Harry E. O’Donnell, Samuel K. Handel and William A. Marks of counsel), for City of New York, appellant and respondent.
    I. The right of the utility companies to use the public streets for the purpose of exercising their franchises to sell gas and electricity to the public is subject to their obligation to relocate their equipment in such streets at their own expense whenever the public interest so requires. The relocation of public utility equipment in the bed of Gillen Place having been necessitated by the closing of Gillen Place in the public interest, it follows that the expense of such relocation must be borne by the utility companies. (People ex rel. Brooklyn Union Gas Co. v. Littleton, 110 App. Div. 728, 185 N. Y. 605; New York City Tunnel Authority v. Consolidated Edison Co., 295 N. Y. 467; American Rapid Tel. Co. v. Hess, 125 N. Y. 641; Matter of Delaware Riv. Joint Comm., 342 Pa. 119; Philadelphia Elec. Co. v. Commonwealth, 311 Pa. 542; New Jersey Bell Tel. Co. v. Delaware Riv. Joint Comm., 125 N. J. L. 235; Matter of Mayor of City of N. Y. [Deering], 28 App. Div. 143, 157 N. Y. 409; People ex rel. New York Central & H. R. R. R. Co. v. Gourley, 198 N. Y. 486; New York Central R. R. Co. v. Westchester Lighting Co., 226 App. Div. 825; New England Tel. & Tel. Co. v. Boston Term. Co., 182 Mass. 397; New York Tel. Co. v. State of New York, 169 App. Div. 310, 218 N. Y. 738; Transit Comm. v. Long Island R. R. Co., 253 N. Y. 345; Stirnweis v. Cacioppo, 258 N. Y. 68; People ex rel. Woodhaven Gas Light Co. v. Deehan, 153 N. Y. 528.) II. Installations like those involved here have always retained their essential character of personal property. (People ex rel. Citizens’ Gas-Light Co. of Brooklyn v. Board of Assessors of City of Brooklyn, 39 N. Y. 81; People ex rel. Western Union Tel. Co. v. Dolan, 126 N. Y. 166; People ex rel. New York Edison Co. v. Feitner, 99 App. Div. 274, 181 N. Y. 549; Poughkeepsie Gas Co. v. Citizens’ Gas Co., 20 Hun 214, 89 N. Y. 493; Buffalo Gas Co. v. Volz, 31 Misc. 160.)

      Jackson A. Dykman, Augustus J. Wheeler and Herman Meltzer for Brooklyn Union Gas Company, respondent and appellant.
    I. Claimant’s special franchise and physical property were inseparable and together constituted an indefeasible interest in the land in the street. (Ghee v. Northern Union Gas

      Co., 158 N. Y. 510; Louisville v. Cumberland Telephone Co., 224 U. S. 649; People ex rel. Metropolitan St. Ry. Co. v. State Bd. of Tax Comrs., 174 N. Y. 417; Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167; New York Tel. Co. v. State of New York, 169 App. Div. 310, 218 N. Y. 738; Story v. New York Elevated R. R. Co., 90 N. Y. 122; Brooklyn Eastern Dist. Terminal v. City of New York, 139 F. 2d 1007; United States v. Brooklyn Union Gas Co., 168 F. 2d 391.) II. The Administrative Code of the City of New York recognizes the existence and nature of claimant’s property and establishes its right to an award in this proceeding. (Matter of City of New York [Fort Greene Houses], 177 Misc. 101, 266 App. Div. 795, 291 N. Y. 788.) III. Where the property of a utility in a street is affected or damaged by a closing under title E of the Administrative Code and compensation is therefore mandatory the court should take proof and award damages in the most practicable and reasonable way. (United States v. Miller, 317 U. S. 369; Heiman v. Bishop, 272 N. Y. 83; National Cellulose Corp. v. State of New York, 292 N. Y. 438; United States v. Town of Nahant, 153 F. 520; City of Little Falls v. State of New York, 198 App. Div. 488.)

      John M. Keegan, Earl G. Clarke and John D. Gray for Consolidated Edison Company of New York, Inc., respondent.
    I. The street closing provisions of title E of the Administrative Code provide for and require the making of an award for the damage, extinguishment and destruction of the Edison company’s franchise rights and the structures appurtenant thereto in Grillen Place. (City of New York v. Aviation Distributors, 84 N. Y. S. 2d 84; Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; Matter of Russo v. Valentine, 294 N. Y. 338; Palmer v. Larchmont Elec. Co., 158 N. Y. 231; Barber v. Woolf, 216 N. Y. 7; Matter of City of New York [Newton Ave.], 219 N. Y. 399.) II. The closing and discontinuance of Grillen Place is a title E street closing condemnation proceeding and not a matter of regulation under the police power. (Transit Comm. v. Long Island R. R. Co., 253 N. Y. 345; City of Chicago v. Baker, 86 F. 753.) III. The compensation to which the Edison company is justly entitled should be measured by the cost of relocating and reintegrating its electrical distribution system in another location. (United States v. 25.4 Acres of Land, 71 F. Supp. 255; United States v. City of New York, 168 F. 2d 387; United States v. 25.4 Acres of Land, 65 F. Supp. 333; City of Little Falls v. State of New York, 198 App. Div. 488; United States v. Town of Nahant, 153 F. 520.)
   Froessel, J.

The City of New York brought this proceeding under title E of chapter 15 of the Administrative Code of that city, entitled “ Street Closing Condemnation Procedure ”, pursuant to resolution of the board of estimate, for ascertainment and payment of compensation to owners of property affected or taken by virtue of the closing and discontinuance of Gillen Place, a street in Brooklyn. Claims were filed by Consolidated Edison Company of New York, Inc., and the Brooklyn Union Gas Company for alleged damages to their franchises and to mains and services located in said street.

After the hearing of objections, a final decree was made awarding damages to said claimants measured solely by the cost of relocating claimants’ facilities. As to Brooklyn Union, an award was therefore made only for its twenty-inch main, the relocation cost of which was stipulated, no award being made for its six-inch main, which was abandoned and regarded by the court as antiquated. As to Consolidated Edison, the cost of relocating its facilities was also stipulated. The Appellate Division unanimously affirmed the final decree. Both the city and Brooklyn Union have appealed by our leave.

The basis for Special Term’s finding that the street closing herein was for a proprietary rather than a governmental purpose appears in the official documents pertaining to the closing of Gillen Place, which make it manifest that it was not a highway purpose which inspired the action taken. Thus, the city planning commission stated that the borough president proposed the closing “ in order that the closed street area may be consolidated with abutting Board of Transportation properties.” The layout plans for a proposed bus garage and shop on said property “ indicate that the proposed structure will occupy the bed of Gillen Place.” The report noted that “ Gillen Place is in use and improved but its closing and discontinuance appear to be unobjectionable ”, and stated that the commission had “ determined that the map is an element in the formal process of closing and discontinuing an unnecessary street in order that the street area and the abutting City-owned property may be consolidated to permit expansion of City transit storage and repair facilities.” The property formerly constituting the bed of the street was eventually assigned to the board of transportation, precisely as proposed.

Street closing statutes have as their primary purpose the securing and preservation of the “ regularity and uniformity of the streets ” (Administrative Code of City of New York, § E15-3.0, and its prototype, L. 1895, ch. 1006, as amd. by L. 1923, ch. 752). Such a purpose is governmental, and the act of closing a street is to that extent a sovereign one (Matter of Mayor of City of N. Y. [Deering], 28 App. Div. 143, affd. 157 N. Y. 409). The city contends that this street closing condemnation proceeding is founded on “ public necessity ”, and that the city, as condemnor, is not required to pay claimants any compensation. It is said that the motive for its action is immaterial, so long as the necessary findings are made to support it, i.e., that the street is no longer necessary. Thus, the city points to the resolution of the board of estimate authorizing the closing, which declared the public necessity of discontinuing and closing Gillen Place ”. However, that resolution must be read in the light of the above-quoted section E15-3.0 of the Administrative Code, which does not stop with the quoted words “ public necessity ”, but includes them in this context: ‘ ‘ The city may authorize the closing or discontinuance of such streets therein, in whole or in part, as it may be deemed necessary in order to more effectually secure and preserve the regularity and uniformity of the streets therein, or where other public necessity requires the closing or discontinuance of such streets ” (emphasis supplied).

The ‘1 other public necessity ’ ’ mentioned in the statute may well be applied to necessity arising in connection with the transit system which, though operated in the public interest (see Rapid Transit Law, § 33), is nevertheless proprietary in nature and, as we have noted, involves a city purpose, “ like the building of streets or highways ” (Litchfield Constr. Co. v. City of New York, 244 N. Y. 251, 263). In this proceeding, the city claims that its right to close the street has not been challenged, but this is disputed by respondent Brooklyn Union. In any event, in view of the language of the statute, which permits the words “ public necessity ” as used in the resolution of the board of estimate to be interpreted as meaning other than necessities affecting the street system, the courts below were justified in concluding from this record that the purpose for which the street was closed was a proprietary one. In this connection, it should be noted that the only way in which the board of transportation could ever acquire this land would be through a street closing proceeding, for so long as Gillen Place remained a street it had to be held by the city in trust only for street uses (Administrative Code, § B15-38.0).

It is true, of course, that street closings usually result in the ultimate appropriation of the land to private ownership, but there is a great difference where, as here found, the very purpose of the closing is to accomplish the devotion of the land to a use by the city which, although in the interest of the public, is nevertheless proprietary. The plain facts are that claimants have been forced to abandon their installations in Gillen Place and reconstruct them elsewhere and for a much greater distance in order to make room for the bus garage and shop, and in such circumstances they are entitled to be compensated for their loss (City of New York v. New York Tel. Co., 278 N. Y. 9; Los Angeles v. Los Angeles Gas Corp., 251 U. S. 32; Matter of Board of R. T. R. R. Comrs. of City of N. Y., 197 N. Y. 81, 96-97; Litchfield Constr. Co. v. City of New York, supra; Postal Tel.-Cable Co. v. Depew & Lancaster Light, Power & Conduit Co., 251 N. Y. 562; New York & Queens Elec. Light & Power Co. v. City of New York, 221 App. Div. 544). As we said in Transit Comm. v. Long Island R. R. Co. (253 N. Y. 345, 352) when the change is required in behalf of other public service corporations or in behalf of municipalities exercising a proprietary instead of a governmental function ”, the common-law rule that utilities maintain their installations in public streets subject to the risk of relocating them at their own expense when public necessity so requires, does not apply.

Assuming, however, that the street closing proceeding was instituted to secure uniformity of the city street system, in the exercise of governmental power, still by reason of the statute claimants are not bound by the common-law rule as reasserted in such cases as Consolidated Edison Co. v. State of New York (302 N. Y. 711); New York City Tunnel Authority v. Consolidated Edison Co. (295 N. Y. 467); Matter of Town of Cheektowaga Grade Crossings (283 N. Y. 687); Transit Comm. v. Long Island R. R. Co. (253 N. Y. 345, supra); Matter of Deering (93 N. Y. 361). In the first place, it should be noted that the applicable statute designates this as a condemnation proceeding. This is quite different from mere regulation. Moreover, the city’s street closing statute expressly provides for “ Compensation and recompense * * * to the respective owners of the real property affected or damaged by reason of any such closing ” (Administrative Code, § E15-3.0); it then defines real property as including: “ all surface and subsurface structures within closed streets and all easements and hereditaments, corporeal or incorporeal, and every estate, interest and right, legal and equitable, in lands, and every right, interest, privilege, easement and franchise relating to the same, including terms for years and liens by way of judgment, mortgage or otherwise ” (Administrative Code, § E15-1.0, subd. 5; emphasis supplied). It is obvious that this definition embraces the situation before us. Not only does it include incorporeal hereditaments, privileges, easements and franchises, but it also expressly refers to subsurface structures. It may be noted that by chapter 752 of the Laws of 1923, the 1895 street closing statute (L. 1895, ch. 1006) was amended, among other respects, to include specifically surface and subsurface structures and franchises. The predominant subsurface structures in the streets of New York City are of course these very utility installations, which increased in large measure in importance and value in the years before the present definition was added (see Ghee v. Northern Union Gas Co., 158 N. Y. 510, 514 [1899]). The word structure ” is a general word depending upon context for its meaning (Caddy v. Interborough R. T. Co., 195 N. Y. 415, 420) and aptly describes these installations. Moreover, it is interesting to note that when used in relation to the city of New York in subdivision 23 of section 2 of the Rapid Transit Law, the Legislature defined “ Sub-surface structures ” in such a way as to limit its meaning almost exclusively to pipes, mains and conduits.

In thus defining claimants’ subsurface structures, consisting of mains and conduits, and the franchises under which they were laid, as real property, for which compensation must be made if affected or damaged by the street closing, the statute merely follows the common law. In this State, it is settled that both the tangible property and the intangible right together constitute the estate created by special franchise (New York, Tel. Co. v. State of New York, 169 App. Div. 310, 318, 321, affd. 218 N. Y. 738; People ex rel. Barron v. Knapp, 208 App. Div. 127, 130, affd. 239 N. Y. 581; People ex rel. Metropolitan St. Ry. Co. v. State Bd. of Tax Comrs., 174 N. Y. 417, 441; Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167). Such estate is an incorporeal hereditament, in the nature of an easement in the street wherein the installation is made (Levy v. McClellan, 196 N. Y. 178, 193-194; Ghee v. Northern Union Gas Co., supra; United States v. 25.4 Acres of Land, 65 F. Supp. 333, 71 F. Supp. 248, revd. on other grounds sub nom. United States v. Brooklyn Union Gas Co., 168 F. 2d 391). This incorporeal hereditament is of course an interest in land constituting real property (Real Property Law, § 2; General Construction Law, § 40). We recognized these principles in Ghee v. Northern Union Gas Co. (supra) where we pointed out (p. 513) that the special franchise granted by the municipality vests in the recipient u a perpetual and indefeasible interest in the land constituting the streets ”, and in Levy v. McClellan (supra) where we said (pp. 193-194):

“ In. the nature of incorporeal hereditaments, at common law, franchises partook of the nature of realty and these special franchises are inseparable from real property in their enjoyment. They fall, necessarily, into that one of the two general divisions of property made by the statute, which is described as real estate [referring to what is now Real Property Law, § 2] * * *

“ These franchises could never be classified as personal property ”.

It should also be noted that the statutes provide that, upon the opening of a street, land taken which is subject to an easement of this nature in favor of a utility company, such as are claimants here, must be taken subject to such easement (Administrative Code, § B15-39. 0). In this we find clear legislative recognition that the property in suit is an easement burdening the bed of the street, for how can the right be different in nature merely because it arose by contract with the city, rather than with the city’s predecessor in title?

While there are cases which seem to hold that this class of property should not be treated as real property, they dealt with special situations under the tax law, where the statute has always been regarded as special and specific in its definitions. Thus, in People ex rel. Citizens’ Gas-Light Co. of Brooklyn v. Board of Assessors of City of Brooklyn (39 N. Y. 81, 87) we emphasized that “We must look to the statute instead of the common law, in determining whether these iron mains which run under the streets of the city are to be regarded for the purposes of taxation as real estate or not, as it is a matter of statute regulation entirely.” It was then noted that the definition of real property contained in the statute was very limited, and did not (as here) include incorporeal hereditaments, or structures such as the main (cf. present Tax Law, § 2, subd. 6.)

From the foregoing, it follows that the formal closing of a street extinguishes the interest therein which inheres in the special franchise. That this is so appears from the fact that since 1895 such proceedings have been intended to extinguish all easements, both public and private (Stirnweis v. Cacioppo, 258 N. Y. 68; Matter of City of New York [Newton Ave.], 219 N. Y. 399, 406; Barber v. Woolf, 216 N. Y. 7; Matter of City of New York [Grand Blvd.], 212 N. Y. 538).

Even at common law, then, it would seem that the closing of a street would work a pro tanto destruction of claimants’ easements and franchise rights for which compensation should be made (New York Tel. Co. v. State of New York, supra; Rochester & Lake Ontario Water Co. v. City of Richester, 176 N. Y. 36, 50; Eighth Ave. Coach Corp. v. City of New York, 286 N. Y. 84; Matter of City of New York [E. 42nd St. Elev. R. R.], 265 N. Y. 170; see, also, New York City Charter, § 363).

The rule as to relocation, referred to in such cases as New York City Tunnel Authority v. Consolidated Edison Co. (supra), has been applied in the past only to situations where there was truly regulation, rather than a taking by condemnation. In each such case the utility was required to relocate, but its rights in the particular street remained in being, the relocation therein being merely to accommodate some street improvement. When a street is closed, however, all rights therein are extinguished; When regulation becomes destruction, it ceases to be regulation ” (Eighth Ave. Coach Corp. v. City of New York, supra, p. 94).

In any event, under the controlling statute, claimants are entitled to be compensated for their loss, and cases cited from other jurisdictions are not helpful here. Such loss has been properly measured not merely by the intrinsic value of the pipes and conduits in the soil, but by the actual loss to claimants of the right to unobstructed passage through the street in question. As we said in People ex rel. Metropolitan St. Ry. Co. v. State Bd. of Tax Comrs. (174 N. Y. 417, 441, supra), “ Separate [the items of tangible property] from the franchise by taking away the street privilege, and they are destroyed.”

For the foregoing reasons, we conclude that compensation has been properly granted to claimants (City of Little Falls v. State of New York, 198 App. Div. 488; City of New York v. New York Tel. Co., 278 N. Y. 9, supra; United States v. 25.4 Acres of Land, 71 F. Supp. 255, 258, affd. sub nom. United States v. City of New York, 168 F. 2d 387), and upon this record no serious question is presented as to the amount.

As to Brooklyn Union’s appeal from the order of the Appellate Division insofar as it affirms that part of the final decree which failed to make an award for the six-inch main and its appurtenances not relocated, we are also of the opinion that upon this record the courts below must be affirmed. Brooklyn Union did not ask for any compensation for' the twenty-inch main that was left in the street, but only for reconstruction costs, which were allowed. This reconstruction, it would appear, fulfilled all the requirements by way of replacement of its installations in Grillen Place. The trial court had the right to deem the six-inch main “ antiquated ” and abandoned and of no value, and, since it was not relocated, its failure to make an award cannot be said to have been unjustified.

The order should be affirmed, with costs to respondent Consolidated Edison Company of New York, Inc., against the City of New York.

Fuld, J.

(dissenting). The present proceeding was brought by the City of New York to close and acquire title to Grillen Place, a public street in the Borough of Brooklyn, preparatory to releasing the land occupied thereby to the Board of Transportation for the purpose of erecting a bus repair shop and garage. It consequently became necessary for the Brooklyn Union G-as Company and the Consolidated Edison Company of New York, claimants herein, to replace and relocate most of the mains, pipes, wires and other installations that they had been maintaining below the street surface. For the expenses thereby incurred, the courts below granted compensation, and the city appeals from those determinations. In addition, the gas • company appeals from the refusal below to allow it compensation for a section of pipe which the company chose not to relocate or remove because it had become obsolete.

The procedure for closing the street was conducted in accordance with the Street Closing Act ” (L. 1895, ch. 1006; L. 1923, ch. 752), as embodied in the Administrative Code of the City of New York (§ E15-1.0 et seq.). Preparatory to closing Grillen Place, the city’s planning commission held a hearing on the proposed change of the city map — the essential preliminary step — and concluded that the change should be approved as “ an element in the formal process of closing and discontinuing an unnecessary street in order that the street area and the abutting City-owned property may be consolidated to permit expansion of City transit storage and repair facilities.” There was no opposition.

The present proceeding was thereupon commenced by the city to accomplish the closing and to obtain title to the bed of the street. Both these purposes are comprehended by the street closing law which provides that the city may “ authorize the closing or discontinuance of such streets therein, in whole or in part, as it may be deemed necessary in order to more effectually secure and preserve the regularity and uniformity of the streets therein, or where other public necessity requires the closing or discontinuance of such streets ” and also “ acquire the fee title to lands within closed streets * * * whenever it may deem that such acquisition will more effectually secure the actual discontinuance and closing of streets which may be legally discontinued and closed pursuant to this title, or when other public necessity requires the acquisition thereof.” (N. Y. C. Administrative Code, § E15-3.0.)

The holdings of the courts below that claimants were entitled to be paid the cost of relocation of their facilities resulted, it seems to me, from a failure to differentiate the two separate steps involved in these proceedings. The closing of the street terminated the privilege of the utility companies to continue their facilities, since that privilege stemmed solely from the fact that they were located in a street. The city had theretofore only an easement in the land for street uses, and the mains and pipes were laid under the surface only as part of the street use. If the street had been surrendered to the owner of the bed of the street — rather than acquired in fee, as here — there could be no question that the owner would have been under no duty to compensate the companies and could have required them to remove their property. (See, e.g., New York Central R. R. Co. v. Westchester Lighting Co., 226 App. Div. 825, 826.) The removal was the consequence of the discontinuance, and could give rise to no claim for damage. The simultaneous acquisition of the fee did not create a claim where none had before existed. Prom the standpoint of claimants, it was immaterial whether the title was acquired simultaneously or weeks or months later, and equally immaterial the use to which the land occupied by the street was to be put. Their right to continued use of the subsurface of the former street was gone, and the taking did not deprive them of any right or add any element of injury.

And, in line with such principles and with such reasoning, the courts of other jurisdictions have held — without considering the use to which the land was to be put — that the displaced utility must bear all costs of relocation. (See New England Tel. & Tel. Co. v. Boston Term. Co., 182 Mass. 397; Northern Ind. Gas & Elec. Co. v. Merchants Improvement Assn., 87 Ind. App. 74; Central Dist. & Print. Tel. Co. v. Pittsburgh, M. & Y. R. R. Co., 55 Pa. Super. Ct. 237; cf. Taylor v. Portsmouth K. & Y. St. Ry., 91 Me. 193, 198.) Thus, in New England Tel. & Tel. Co. v. Boston Term. Co. (supra, 182 Mass. 397) —a case very like the one now before us — several public streets were discontinued, and the land in the bed thereof appropriated for the site of a railroad terminal station. As in the present case, several utility companies claimed compensation for the enforced removal of their underground facilities from the closed streets. In denying the claim, the court held that the utility companies ‘ ‘ have no rights of property in the street, and their structures that were built therein were personal property which they had a right to remove, and which could not be subjects for the assessment of damages” under the applicable statutes (182 Mass., at p. 400). That conclusion followed, the court declared, from the character of the user which a public utility enjoys in the public streets (pp. 399, 401): “ The permanent structures [of a utility company] * * * are permitted [in the public streets] because they are used by the public or a part of the public, or are held and used in private ownership for the benefit of the public. The rights in the streets which are so exercised or enjoyed are not private rights of property, but are a part of the public rights which are shared in common, although used and enjoyed in different ways by the different members of the public who pass through a street, or whose property is carried through it. [p. 399] * * * these public rights, being subject to the control of the Legislature, were terminated by the * * * [statute] which provided for the discontinuance of the streets, and a taking by the respondent. When these places ceased to be public streets, all rights of the public in them came to an end * * * The action taken by the respondent under the statute first worked a discontinuance of the streets, and then appropriated them to the public use for a terminal station. The damages to be assessed were only for rights of property in the real estate at the time of the taking. * * * the petitioners had no such rights, [p: 401] ”

An Indiana court likewise denied a public utility’s claim— asserted against the fee owner of the land in a closed street— to damages for the cost of the removal of its poles and wires necessitated by the closing (Northern Ind. Gas & Elec. Co. v. Merchants Improvement Assn., supra, 87 Ind. App. 74, 77): ‘‘ Any member of the public conveying his products to his customers had the same right to use the alley that appellant had, and appellant was no more entitled to compensation for removing its personal property from the location when it ceased to be a public place than was any other public user who was excluded therefrom by reason of such vacation.”

It is, however, here contended that the proposed use of the street for the benefit of the transportation system is such a deviation from the primary purpose of securing the ‘ regularity and uniformity of the streets ” as to make this a nongovernmental objective and to require payment of compensation by the city. This contention is based on a faulty analogy with cases involving relocation within streets brought about by the construction or operation of the city’s subways. It is well settled that, where the city makes changes in existing streets for ordinary public purposes, the companies must relocate their facilities at their own expense to accommodate them to such changes. (See Consolidated Edison Co. v. State of New York, 302 N. Y. 711; New York City Tunnel Authority v. Consolidated Edison Co., 295 N. Y. 467; Matter of Town of Cheektowaga Grade Crossings, 283 N. Y. 687; Transit Comm. v. Long Island R. R. Co. [Bell Ave. case], 253 N. Y. 345; Chace Trucking Co. v. Richmond Light & R. R. Co., 225 N. Y. 435, 437; Matter of Deering, 93 N. Y. 361.) It is equally well settled ' that, where one utility company requires use of the street which necessitates changes by other utility companies, the last-comer must bear the expense of relocation. (See, e. g., Postal Tel.-Cable Co. v. Depew & Lancaster Light, Power & Conduit Co., 251 N. Y. 562.) In between these extremes fell the case where the change was necessitated by construction of a subway by the city rather than by a private corporation, and the conclusion was reached that for the purpose at hand the city should be regarded as an operator of a utility enterprise. (See City of New York v. New York Tel. Co., 278 N. Y. 9; cf. New York & Queens Elec. Light & Power Co. v. City of New York, 221 App. Div. 544.) That ruling, however, always recognized as exceptional in imposing liability on the municipality, has been, and should be, narrowly confined. (See Consolidated Edison Co. v. State of New York, supra, 302 N. Y. 711.) To apply it here would be to extend the exception beyond its justification. This is not a case of competing street uses; it is a case of discontinuing what has authoritatively been found to be an “ unnecessary street ’ ’, and the termination of occupancy flowed as a matter of course from that decision. The discontinuance was for a public purpose in the traditional sense, for it should always be the purpose of officials to avoid unnecessary expenditure in maintaining unneeded streets. If the area had been returned to private ownership in order to restore it to the tax rolls, that too would be a legitimate instance of ‘ other public necessity ’ ’ justifying the discontinuance of this street. Even if the determination could be collaterally attacked, it would be only on the ground that the street should not be closed, whereas, by the very claim of compensation here asserted, the propriety of the closing itself is necessarily conceded.

An alternative ground urged by claimants is that the statute expressly provides for such payment.

It may be conceded that the legislature could have required such payment as a condition for the discontinuance of streets. But that it would do so, that it would require such payment is exceedingly doubtful. Claimant utilities had no interest in the bed of the street. Their occupancy was merely derivative from the former street use. They were not abutting owners, and therefore contributed nothing either to the cost of acquisition of the street or to its maintenance. It is difficult to see the basis on which the city should compensate the occupant for the loss of a privilege which was obtained and maintained entirely without cost or expense. In my opinion, the statute, when reasonably construed in its context, makes no such provision. As already noted, the statute provides that the city, in addition to closing the street, “ may acquire the fee title to lands within closed streets ”. This is an ordinary condemnation proceeding. The statute requires payment for real property taken or damaged. But here there was no property of claimants taken or damaged. The city did not want the wires, pipes, mains and the like, and it did not specify them as property to be taken. Nor did the city damage this property. It is true that it became necessary for claimants to remove their property, but that, as already pointed out, was a consequence of the closing of the street, not of the acquisition of the fee title to lands within closed streets ”.

In point of fact, claimants did not own any real property affected by the acquisition of title to the bed of the street. It is true that real property is here defined as including all surface and subsurface structures within closed streets and all easements and hereditaments, corporeal or incorporeal, and. every estate, interest and right, legal and equitable, in lands, and every right, interest, privilege, easement and franchise relating to the same, including terms for years and liens by way of judgment, mortgage or otherwise ” (N. Y. C. Administrative Code, § E15-1.0, subd. 5). However, this is customary language when dealing comprehensively with interests in real property for the purpose of assuring complete title. It does not create an interest in land where none previously existed. It is well settled that, in the absence of statute, the installations of public utilities retain their character as personal property. (See Matter of City of New York [Fort Greene Houses], 291 N. Y. 788; People ex rel. Western Union Tel. Co. v. Dolan, 126 N. Y. 166, 175-176; People ex rel. Citizens’ Gas-Light Co. of Brooklyn v. Board of Assessors of City of Brooklyn, 39 N. Y. 81, 87; People ex rel. New York Edison Co. v. Feitner, 99 App. Div. 274, affd. 181 N. Y. 549.) The quoted definition was not intended to encompass more than that traditionally regarded as real property. If the legislature had intended to include the pipes, mains and wires of public utilities, specific language was at hand to make that meaning clear. Thus, “ real property ” as defined in subdivision 6 of section 2 of the Tax Law, includes structures, substructures and superstructures, erected upon, under or above, or affixed to the [land] ”, and 11 all mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place for conducting steam, heat, water, oil, electricity or any property, substance or product capable of transportation or conveyance therein ”. The legislature evidently considered the former clause inadequate to accomplish the purpose of rendering the installations of public utility companies taxable as real estate, and it is my opinion that the almost identical language of the definition section of the street closing law is similarly inadequate to require the city to compensate utilities for the value of their installations where no such liability exists at common law. Absent unambiguous language, similar to that employed in the Tax Law, we cannot assume that the legislature intended to thrust upon the city a liability from which, as we have seen, it is traditionally exempt.

Moreover, strictly speaking, the question is, not whether the franchise together with the use may be considered to be an interest in land, but whether the facilities in the bed of the street represent an interest in land after the right to maintain them is gone. The general franchise to use all streets, which these claimants possessed by reason of their charters and applicable legislation, of course continued unaffected by reason of this street closing, and it was in accordance therewith that these facilities were relocated in other streets. However, the right to use this particular area was terminated by the discontinuance of the street and thereafter the claimants had merely the right, which they exercised, to remove their property to another public street.

I would, therefore, reverse so much of the order appealed from as grants compensation to claimants.

Loughran, Ch. J., Lewis, Conway and Dye, JJ., concur with Froessel, J.; Fuld, J., dissents in opinion in which Desmond, J., concurs.

Order affirmed, etc.


author: Fboessel, J.

text:
    In the Matter of the Probate of the Will of Timothy J. Murphy, Deceased. Francis J. Mulligan, as Public Administrator of the County of New York, Appellant; Julia A. Murphy, as Administratrix with the Will Annexed of Timothy J. Murphy, Deceased, Respondent.
    Argued April 7, 1952;
    decided June 6, 1952.

      Joseph T. Arenson and Joseph A. Coco for appellant.
    I. The Surrogate properly refused to appoint respondent as administratrix with the will annexed, since at the time of decedent’s death she was not entitled to share in his estate either by will or by intestacy, and thus she was not a next of kin. (Matter of D’Agostino, 88 Misc. 371; Matter of Burk, 298 N. Y. 450; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Matter of Blackburn, 171 Misc. 238; Matter of Wenkhous [Winkhous], 158 Misc. 663; Matter of Fagin, 155 Misc. 533; Matter of Thompson, 186 Misc. 528; Matter of Cullinane, 182 Misc. 830; Matter of Vance, 263 App. Div. 840.) II. The Appellate Division, in reversing the decree of the Surrogate, relied upon Matter of D’Adamo (212 N. Y. 214), which was decided on the basis of the statute as it existed in 1913 and before it had been amended by chapter 443 of the Laws of 1914. The D’Adamo decision is not applicable to the present statute. (Matter of D’Agostino, 88 Misc. 371; Matter of Root, 1 Redf. 257; Public Administrator v. Peters, 1 Bradf. 100; Lathrop v. Smith, 24 N. Y. 417; Matter of Campbell, 192 N. Y. 312; Matter of Bunimowitz, 128 Misc. 518; Matter of Fiumara, 127 Misc. 794; Matter of Elder, 87 Misc. 79; Matter of Franko, 169 Misc. 356; Matter of Kassam, 141 Misc. 366, 235 App. Div. 609; Matter of Duff, 143 Misc. 905; Matter of Grant, 253 App. Div. 504.)

      Edward B. Loomie for respondent.
    I. The statutes give respondent the unequivocal right to letters of administration with the will annexed. Her right is prior to that of the Public Administrator. (Lathrop v. Smith, 24 N. Y. 417.) II. The Surrogate has no choice in awarding letters but must follow the statutory plan. (Matter of Campbell, 192 N. Y. 312; Matter of D’Adamo, 212 N. Y. 214; Matter of Page, 107 N. Y. 266; Lathrop v. Smith, 24 N. Y. 417; Matter of Brown, 60 Misc. 628.) III. The right of a competent distributee to administer is superior to that of the Public Administrator. (Matter of Campbell, 192 N. Y. 312; Matter of Kroog, 84 Misc. 676; Matter of Wolff, 161 App. Div. 255; Matter of D’Adamo, 212 N. Y. 214.)
   Fboessel, J.

We are here asked to determine whether the sister of decedent, who does not share in his estate, is entitled to letters of administration with the will annexed in preference to the Public Administrator. The Surrogate held that she was not; the Appellate Division held that she was.

The facts are undisputed. Decedent, Timothy J. Murphy, died testate on April 10, 1949. He was survived by his widow, a brother and two sisters, one of whom is respondent herein. Decedent named his wife, Adelaide, sole beneficiary and executrix of his estate. It appears that his entire estate was valued at less than $1,000 and that he died seized of no real property. On April 24, 1949, two weeks after decedent’s death, his widow died, leaving a will, designating Bank of The Manhattan Company as executor.

Julia Murphy, sister of decedent, and respondent herein, filed a petition for the admission to probate of decedent’s will and prayed that she be appointed administratrix with the will annexed. Bank of The Manhattan Company filed a notice of appearance, but does not appear to have taken any further part in these proceedings, whereupon the Public Administrator entered his appearance. Decedent’s brother and other sister renounced any right to letters of administration, and consented to the appointment of respondent as administratrix.

The disposition of the issue herein hinges on the construction of the term next of kin ” as used in subdivision 4 of section 133 of the Surrogate’s Court Act. Appellant contends that the statutes before 1914, as construed in Matter of D’Adamo (212 N. Y. 214) made consanguinity the sole test, while the 1914 amendments established the rule that the only persons entitled to letters of administration c. t. a. are those who share in the distribution of an estate. Bespondent, with whom the Appellate Division agreed, maintains that section 133 of the Surrogate’s Court Act gives respondent the unequivocal right to letters of administration c. t. a.

We agree with the Public Administrator. There is no inherent right to administer an estate; the right is clearly dependent on statute (Matter of D’Agostino, 88 Misc. 371, 375). It therefore becomes important to note the precise wording of the pertinent statutes. Section 133 of the Surrogate’s Court Act, after designating those persons (legatees, devisees or their legal representatives) to whom letters of administration c. t. a. must be issued in order of priority, provides:

“4. If there is no such legatee or none who will accept, then to the husband, or wife, or to one or more of the next of kin, or to one or more of the heirs or devisees, so qualified. * * *

“ 5. If there is no qualified person, entitled under the foregoing subdivisions, who will accept, then to the public administrator * * *.

“ Except as to the right of priority as provided in this section, the provisions of section one hundred and eighteen of this act apply to an application for letters of administration with the will annexed.”

Other relevant statutes so far as pertinent provide as follows: Section 118 of the Surrogate’s Court Act: “Who entitled to letters of administration. Administration in case of intestacy must be granted to the persons entitled to take or share in the personal property, who are competent and will accept the same, in the following order ”.

Section 81 of the Decedent Estate Law: “ Whenever in any statute the words heirs, heirs at law, next of km, or distributees, are used, such words shall be construed to mean and include the persons entitled to take as provided by this article. ’ ’

Section 47-c of the Decedent Estate Law: “When used in a statute * * * and unless the statute * * * shall expressly or impliedly declare otherwise the terms * * * ‘ next of kin ’ * * * shall be deemed and shall be construed to mean the distributees * * * who are defined in section eighty-three of Decedent Estate Law.”

Section 83 of the Decedent Estate Law: “ 4. If the deceased leaves a * * * brother or sister * * * and no descendant or parent, the surviving spouse shall take ten thousand dollars and one-half of the residue, and the balance shall descend and be distributed to the brothers and sisters and their representatives.” (Emphasis supplied.)

Reading these statutes together, and particularly sections 81 and 47-c of the Decedent Estate Law, with subdivision 4 of section 133 of the Surrogate’s Court Act, the words “next of kin ” in the last section must “ be construed to mean and include the persons entitled to tahe ” under section 83 of the Decedent Estate Law. As respondent sister cannot take, first, because the will gives her nothing and there are no unbequeathed assets, and, secondly, the estate being less than $1,000, she could not take even if there were unbequeathed assets, she is not a 1 ‘ next of kin ” under subdivision 4 of section 133 and may not have letters c. t. a. in preference to the Public Administrator. This without more would require a reversal here.

But the same result may be reached by reading sections 118 and 133 of the Surrogate’s Court Act and subdivision 4 of section 83 of the Decedent Estate Law together with our decision in Matter of D’Adamo (supra), upon which the Appellate Division and respondent relied. Prior to our decision in Lathrop v. Smith (24 N. Y. 417) under the language of the Revised Statutes of New York (Vol. 2, p. 74, § 27), it had been held that one in the deferred class of the next of kin who is not beneficially interested in the estate would not be appointed as against a public administrator or creditor (Matter of Root, 1 Redf. 257; Public Administrator v. Peters, 1 Bradf. 100). In Lathrop v. Smith (supra), we held to the contrary. Statutory amendments subsequent to that decision caused a conflict in the lower court decisions (see cases collated in Matter of Wolff, 161 App. Div. 255, 260-261) until Matter of D’Adamo (supra), where we held that the changes of form effected no change of meaning, and that Lathrop v. Smith was applicable to section 2660 of the Code of Civil Procedure, as it was to the Revised Statutes.

At that time, section 2660 of the Code of Civil Procedure provided in part: “ Administration in case of intestacy must be granted to the relatives of the deceased entitled to succeed to his personal property, who will accept the same, in the following order ”. (Emphasis supplied.) However, in the 1914 revision of the Surrogate’s Court Practice (L. 1914, ch. 443), section 2660 became section 2588 (now Surrogate’s Ct. Act, § 118) and provided in part as follows: “ Administration in case of intestacy must be granted to the persons entitled to take or share in the personal property, who are competent and will accept the same, in the following order ”. (Emphasis supplied.) In other words, the language “ persons entitled to take or share in, the personal property ” was substituted for “ relatives * * * entitled to succeed to his personal property ” (emphasis supplied). In the same revision, there was added to subdivision 5 of section 2603 (now Surrogate’s Ct. Act, § 133, subd. 5) the following: “ Except as to the right of priority as provided in this section, the provisions of section 2588 of this chapter [now Surrogate’s Ct. Act, § 118] apply to an application for letters of administration with the will annexed.”

The Legislature thereby expressly manifested its intention to bring both these sections (Code Civ. Pro., §§ 2588, 2603 [now Surrogate’s Ct. Act, §§ 118, 133]) into harmony, and indeed the revisers’ note to section 2603 reads: Whole section made to work with new § 2588 ”. (Matter of Blackburn, 171 Misc. 238, 240.) Thus it becomes apparent that the Legislature by these changes sought to overcome the effect of our decision in the Lathrop case (supra, p. 419), where we held “ that the legislature did not deem it essential to the right of administration, that the person administering should stand in a position to take a share or portion of the deceased’s personal estate ” (emphasis supplied). The revisers in their note to section 2588 specifically stated: “ The general intention of the changes is to give only persons interested the right to administer.”

Judge Cardozo, speaking for a unanimous court, likewise pointed this out in Matter of D’Adamo (supra, p. 218), when he said: “We content ourselves with stating our conclusion in this respect, because of amendments which have this year been adopted by the legislature. By chapter 443 of the Laws of 1914, which will take effect on September 1, 1914 [this case was decided on July 14, 1914], section 2660 of the Code of Civil Procedure has become section 2588, and radical changes have been made in it. The result of these amendments will be to establish a new rule hereafter. Discussion of the reasons for our construction of the old rule would, therefore, serve no useful purpose.” (Emphasis supplied.)

Thus the rule followed in Matter of D’Adamo (supra) is no longer the law. Under section 118 and subdivision 4 of section 133 of the Surrogate’s Court Act, then, “ next of kin ” must be construed to mean “ persons entitled to take ” at the time of decedent’s death (Decedent Estate Law, § 81). Kinship alone is not enough. Under subdivision 4 of said section 133, “ next of kin ” may be appointed only where they take under total or partial intestacy, and there are no persons under subdivisions 1, 2 and 3 qualified or willing to serve (Matter of Cullinane, 182 Misc. 830, 832). This brings said subdivision in harmony with section 118, as provided in subdivision 5 of section 133.

So the courts below have consistently held since Matter of D’Adamo (supra) — as to letters of administration c. t. a.: (Matter of Hill, 242 App. Div. 890; Matter of Franko, 169 Misc. 356; Matter of Blackburn, supra; 2 Butler on New York Surrogate Law & Practice, § 1262), — as to letters of administration generally: (Matter of Grant, 253 App. Div. 504; Matter of Kassam, 141 Misc. 366, affd. 235 App. Div. 609; Matter of Wenkhous [Winkhous], 158 Misc. 663; Matter of Fagin, 155 Misc. 533; Matter of Duff, 143 Misc. 905; Matter of Bunimowitz, 128 Misc. 518; Matter of Fiumara, 127 Misc. 794; Matter of Elder, 87 Misc. 79).

It seems quite clear that the present policy of the law is to grant letters of administration c. t. a. only to those who actually have an interest in the property to be administered, and in the absence of such persons, to the Public Administrator. This accords with reason and common sense, and is obviously done to bar disappointed relatives for whom no provision is made by the testator or the laws of intestacy from interference in an estate in which they have no interest, and to which they are complete strangers.

We now turn to the contention of respondent that she is a person interested in the estate (1) by reason of being a legatee of property standing in decedent’s name, and (2) by reason of being entitled to share in any intestacy.

(1) Decedent’s widow was the sole beneficiary under his will, which was offered for probate by respondent and duly probated. Respondent was not mentioned therein. There were no unbequeathed assets. The mere fact that she is a legatee under the will of decedent’s widow of a mortgage participation certificate registered in decedent’s name and indorsed by him did not create in respondent an interest in decedent’s estate, but only in the widow’s estate. She was therefore entitled to take ” nothing from his estate at the time of his death.

(2) Assuming decedent had died intestate as to any of his alleged assets, respondent had no intestate rights with respect thereto. By reason of subdivision 4 of section 83 of the Decedent Estate Law, the widow would have taken all in view of the fact that the total estate amounted to less than $1,000. Respondent’s contention in her brief that the estate exceeded $10,000 is without any support whatsoever in the record, and is in direct contradiction of her verified petition that the value of the entire estate of decedent is less than $1,000 ”.

It follows that respondent was not a next of kin within the meaning of that term as used in subdivision 4 of section 133 of the Surrogate’s Court Act. She was in no event “ entitled to take ” or share in the personal property of decedent. Accordingly, the order of the Appellate Division should be reversed and the decree of the Surrogates’ Court affirmed, without costs.

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

Ordered accordingly.


author: Loughran, Ch. J.

text:
    In the Matter of the Claim of Robert Cradduck, Respondent, against Hallen Company, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted April 22, 1952;
    decided July 15, 1952.

      Frank C. Roberts and John F. Canale for appellants.
    The decision of the Appellate Division to the effect that the work claimant was performing for his employer when he sustained accidental injuries was not at a fixed location outside the State of New York, but was temporary and transitory in nature and incidental to his basic employment in the State of New York, and that his employment was located in New York State is contrary to the facts established by the uncontroverted evidence and contrary to the law enunciated in our State. (Matter of Baduski v. Gumpert Co., 277 App. Div. 591; Matter of Cameron v. Ellis Constr. Co., 252 N. Y. 394; Matter of Vatouios v. Markakis, 273 App. Div. 832, 298 N. Y. 733; Matter of Amaxis v. N. A. Vassilaros, Inc., 258 N. Y. 544; Matter of Zeltoski v. Osborne Drilling Corp., 264 N. Y. 496; Matter of Bagdalik v. Flexlume Corp., 281 N. Y. 858; Matter of Jensen v. Boudin Contr. Corp., 283 N. Y. 572; Matter of Grasso v. Donaldson-Reynolds, Inc., 279 N. Y. 584; Matter of Hawco v. Neill Constructors, 275 App. Div. 878.)

      Nathaniel L. Goldstein, Attorney-General {Roy Wiedersum, Wendell P. Brown and Harry Pastor of counsel), for Workmen’s Compensation Board, respondent.
    The Workmen’s Compensation Board was vested with jurisdiction over the claim. (Matter of Cameron v. Ellis Constr. Co., 252 N. Y. 394; Matter of Bach v. Hampden Sales Assn., 266 App. Div. 645, 293 N. Y. 847; Matter of Baduski v. Gumpert Co., 277 App. Div. 591; Matter of Daus v. Gunderman & Sons, 283 N. Y. 459; Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Vatouios v. Markakis, 298 N. Y. 733; Matter of Hawco v. Neill Constructors, 275 App. Div. 878; Matter of Post v. Burger & Gohlke, 216 N. Y. 544; Matter of Klein v. Stoller & Cook Co., 220 N. Y. 670; Matter of Smith v. Aerovane Utilities Corp., 259 N. Y. 126.)
   Loughran, Ch. J.

In this workmen’s compensation case, the appellants are an employer and its insurance carrier. They challenge an award which the New York Workmen’s Compensation Board made to the claimant Robert Cradduck for injuries sustained by him at a time when he was working in the State of Indiana. The board found, however, that Cradduck’s employment at that time was located in the State of New York. Whether there is evidence sufficient to sustain that finding is the question to be determined.

In a memorandum of its decision, the board summarized the facts in this way: ‘ ‘ The claimant, a resident of Pennsylvania, was working for a Pennsylvania employer, a Mr. Lauffenburger, as an apprentice iron worker, when his employer entered into an agreement with the Hallen Construction Company, a New York corporation, to act as a field manager in New York and other states. By the terms of this agreement, Lauffenburger was to supply all the labor and foremen and the Hallen Construction Company was to pay all wages. Lauffenburger then instructed the claimant and other workers to go to Buffalo and to report to the representative of the Hallen Company, Mr. Don Adams. The claimant worked in Buffalo and Syracuse several weeks and was then sent to Indiana where, on 10/29/48, he was injured. After leaving Pennsylvania, claimant was placed on the payroll of the Hallen Construction Company and was paid at the rate of pay fixed by the union for the locality wherein he was working. The claimant was working under the supervision of a foreman appointed by Lauffenburger, but the Hallen Construction Company had its own representative, who supervised each job. A check for payment of wages to all employees was issued by the New York office of the Hallen Construction Company and was sent to its representative on the job. The representative cashed it at a local bank and paid the workers in currency.”

Upon its above summary of the facts, the board came to the following conclusion: “ At the time of the accident to Robert Cradduck on October 29, 1948, as aforesaid, the work which he was performing for his employer was not work at a fixed location outside the State of New York, but was temporary and transitory in nature and incidental to his basic employment which was in the State of New York, and was in furtherance of his employer’s business carried on in the State of New York, and he was scheduled for return to New York for further work.” This conclusion of the board is inadmissible, in our judgment.

A leading case on the question here presented is Matter of Cameron v. Ellis Constr. Co. (252 N. Y. 394) where Lehman, J., said for this court (p. 398): “ Occasional transitory work beyond the State may reasonably be said to be work performed in the course of employment here; employment confined to work at a fixed place in another State is not employment within the State, for this State is concerned only remotely, if at all, with the conditions of such employment.” Accordingly a traveling salesman working for a New York employer was held by us to be engaged in a New York employment. (Matter of Roth v. Horn Co., 287 N. Y. 545. See, too, Matter of Industrial Comr. v. Underwood Elliott Fisher Co., 271 N. Y. 639; Matter of Vatouios v. Markakis, 298 N. Y. 733.)

On the other hand, a number of decisions of this court declare that no person who is employed to work at a fixed place or places outside this State can avail himself of the benefits of our Workmen’s Compensation Law. (See Matter of Amaxis v. N. A. Vassilaros, Inc., 258 N. Y. 544; Matter of Zeltoski v. Osborne Drilling Corp., 264 N. Y. 496; Matter of Bagdalik v. Flexlume Corp., 281 N. Y. 858.) The cases last cited, as we read them, rule the case in hand. The employment of the present claimant was not transitory but stationary, because he had been hired to work upon a construction job in Indiana until Ms part in that job was finished. Hence the New York Workmen’s Compensation Board was without jurisdiction to make the award in question.

The order of the Appellate Division should be reversed and the award of the Workmen’s Compensation Board annulled, with costs in this court and in the Appellate Division, and the claim dismissed.

Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Ordered accordingly.