author: Van Voorhis, J.

text:
    Keller Tailors Trimmings Co., Inc., Appellant, v. Burke Rugby, Inc., Respondent.
    Argued March 9, 1955;
    decided April 21, 1955.

      Daniel M. Shientag and Milton D. Goldman for appellant.
    I. Defendant waived notice of the breach of warranty. (Portfolio v. Rubin, 196 App. Div. 316, 233 N. Y. 439; Oliver Farm Equipment Sales v. Patch, 134 Kan. 314; Viking Refrigeration v. Farwell, 180 Miss. 181; Baker v. Nichols Co., 10 Okla. 685; Lewis v. Doyle, 13 App. Div. 291; Grouse v. Wolf, 4 Misc. 535.) II. The sale was rescinded by the parties. Plaintiff was entitled to resell the merchandise and recover the incidental damages incurred and the balance of the purchase price. III. Plaintiff’s damages under the first cause of action for breach of warranty were established by competent, uncontradicted proof.

      Marcus J. Friedman and Jacob M. Kornfeld for respondent.
    I. Plaintiff did not give notice to defendant of breach of warranty within a reasonable time. II. Defendant at no time waived notice of breach of warranty. (Portfolio v. Rubin, 196 App. Div. 316, 233 N. Y. 439.)
   Van Voorhis, J.

The complaint has been dismissed after a trial by the court sitting without a jury, in an action brought by a purchaser for breach of warranty of quality in the sale of linen cloth. Judgment has been entered in favor of the defendant-seller upon the ground that neither notice of defects in the goods nor any offer to rescind the sale was presented to the seller within a reasonable time after the purchaser knew or should have known of the breach of warranty. The defects in the cloth were discoverable upon inspection, and were held by the trial court to have been patent upon evidence that they were so. The opinion of the trial court states that it was held both in fact and in law ” that timely notice was not given to the seller. We need not decide whether the complaint should have been dismissed upon the facts or upon the law, inasmuch as the trial court found the facts in favor of the defendant, and the Appellate Division has affirmed. The judgment must be affirmed in this court unless there were errors of law which would change the result. The question before the Court of Appeals is whether it must be held as matter of law that the seller waived timely notice that this merchandise was defective. The facts on which waiver is claimed are as follows:

In May, 1947, six months after delivery of this merchandise, a conversation occurred between representatives of the buyer, the seller (which is a jobber), and the manufacturer of this linen cloth. Plaintiff-buyer complained of the quality of the goods, and the manufacturer said to send it for examination to the Mutual Adjustment Bureau of the Cloth and Garment Trades, Inc. This bureau reported January 5, 1948 (fourteen months after delivery to plaintiff) that in certain respects the cloth was defective. Thereafter another conversation occurred, in which the manufacturer agreed to replace through seller whatever merchandise plaintiff claimed to be defective. Plaintiff replied that it no longer wanted any of this linen cloth, but wished to have gabardine substituted for the entire shipment. Seller offered to sell gabardine to plaintiff, and to credit upon the purchase price whatever linen cloth of the original shipment might be returned by plaintiff. Plaintiff refused to resolve the controversy on this basis, after examining the varieties of gabardine which seller had in stock, stating that the quality was not satisfactory. That was the extent of the conversations between these parties which the buyer contends constituted waiver of notice of defects or of rescission.

The buyer’s (plaintiff-appellant’s) contention is, as stated in its brief, that “ Where the seller acts on the notice received and undertakes to remedy the defects in the goods sold or receives and accepts the goods or a portion thereof back, he waives all right to assert that the notice or return was defective or not timely.” For that reason, it is argued that the judgment appealed from should be reversed upon the law.

At the beginning is the circumstance that, at the time of this alleged waiver, the purchaser of the goods had lost all rights to avail itself of breach of warranty due to the finding of fact that more than a reasonable time had elapsed before giving notice of defects or offering to return the goods. It is, of course, axiomatic that if a seller accepts the return of goods, even after the lapse of a reasonable period of time, it constitutes a rescission at least to the extent of the merchandise which has been taken back. That is as far as the courts went in Portfolio v. Rubin (196 App. Div. 316, affd. 233 N. Y. 439). It was there decided that, regardless of whether a purchaser had the right to rescind the sale respecting part of the shipment and to retain the rest of the goods, where a buyer has, in fact, returned a portion of the goods and these have been accepted back by the seller, the seller is precluded from contending that the buyer is liable for all of the goods for the reason that he has elected to retain some of them. The effect of the Portfolio decision is that respecting those goods which have been returned and accepted by the seller, the seller cannot be heard to assert either that the contract was entire or that the goods which were accepted in return were not proffered back in time. Where that occurs, it amounts to a kind of novation; part of the goods are received back, whether early or late, by consent of both parties, and by mutual agreement the sale is cancelled pro tanto and confirmed regarding the rest. If the goods are all received back, then by mutual consent the sale is cancelled in toto. In Brewster v. Wooster (131 N. Y. 473), the usual principles of law were held not to control where an action is based on a rescission of a contract by a defendant and an acceptance of the rescission by plaintiff. That is not this case. The Portfolio case (supra) holds, in effect, that where a supplemental agreement is entered into between seller and buyer whereby the seller accepts the return of a portion of the goods, the seller cannot base any cause of action upon the portion of the shipment which it accepted back, even though the goods were accepted back from the buyer at a time when it would have been too late for the latter to have rescinded. The Portfolio case does not go so far as to hold that there is a waiver of punctual notice of rescission in respect of goods which are not received back into the seller’s possession. It is based more upon the formation of a new agreement than it is upon the performance of the old one.

The most that this record discloses is that the seller through the manufacturer offered to replace goods that were claimed to have been defective. That is a different offer on the part of the seller from acceptance of a rescission proffered by the buyer. In this instance, neither seller nor manufacturer expressed willingness to cancel the sale, either in whole or in part. The seller merely offered to replace defective merchandise, requiring the buyer to pay according to the existing contract on the same basis as though the substituted merchandise had been included in the original shipment. That was an offer to make a new agreement to modify the original contract in that manner. When the buyer refused the seller’s offer to enter into this proposed agreement of modification, the seller’s unaccepted offer to do so fell by the wayside and became of no effect. The undisputed evidence is that in response to this offer by the seller, the buyer replied that it did not want any of that kind of goods regardless of their condition, but insisted that the entire transaction be cancelled since he wished to purchase a different kind of material (gabardine) in place of that which had been ordered. When given the opportunity to substitute gabardine, the buyer replied that it was not good enough gabardine. This amounted to a complete rejection of the seller’s offer to settle the dispute.

If the offer to rescind had been made within a reasonable time, the buyer would have been entitled to insist upon its rights. The buyer cannot successfully contend, however, that the untimeliness of its demand for rescission was waived by the seller, by acceding to a rescission, whereas the seller did no such thing but insisted upon the contract’s being carried out through the substitution of satisfactory goods for those which had proved to be defective. If the buyer had been willing to take the replacements offered by the seller, the effect would have been that the contract would have been performed as thus modified but not rescinded. Of course, if the buyer had punctually given notice and demanded rescission, the seller could not have compelled the buyer to consent to a substitution of defective goods in the absence of a clause in the contract requiring it. Here the seller had been freed from any legal liability due to the buyer’s delay in acting. The seller was not obliged to replace defective merchandise, or to cancel the sale or to pay damages. If the seller offered to replace any of the goods, that was an act of grace. The mere circumstance that the seller was willing to overlook the tardiness of the notice of defects and demand for rescission on condition that the buyer accept substituted merchandise, falls short of signifying that the seller voiced an intention to cancel the contract by restoring the parties to their position before it was made.

The incorrectness of appellant’s position is demonstrated by that circumstance, i.e., that (under findings of fact which have been made that we cannot disturb) the buyer had lost all remedies by neglecting to give notice of defects under section 130 of the Personal Property Law as a basis of an action for damages, or notice of rescission under subdivision 3 of section 150 as a basis for canceling the sale. Waiver is a term that is generally used in this context in referring to eliminating a condition not yet broken, or more specifically here, a defense not yet arisen (3 Williston on Contracts [Rev. ed.], § 689). It would be more appropriately applied to this situation if the seller had diverted plaintiff from giving early notice by earlier assurances that all would be made good (Oliver Farm Equipment Sales v. Patch, 134 Kan. 314; Baker v. Nichols & Shepard Co., 10 Okla. 685; Fay & Egan Co. v. Cohn & Bros., 158 Miss. 733). Here it has been found that no complaints were made by the buyer and no assurances were given by the seller until recourse by the buyer had been barred by these sections of the Personal Property Law. There was no “ new promise ”, express or implied, of which the buyer could take advantage (cf. analogy of extending the Statute of Limitations as discussed in Brooklyn Bank v. Barnaby, 197 N. Y. 210, per Werner, J.; Civ. Prac. Act, § 59).

Waiver is the voluntary relinquishment of a known right (Davison v. Klaess, 280 N. Y. 252, 261). The seller is deemed to have waived its rights only to the extent that relinquishment is made manifest by what it said or did. The utmost concession which the seller made was by the expression of a willingness to substitute good merchandise for so much of the delivery as had turned out to be bad. That much the seller was willing to concede, regardless of the circumstance that the buyer had lost its rights due to delay in giving notice. The buyer refused to accept the substitutions, and the seller was not willing to do more. The seller would not agree to accept the unconditional return of all of the goods or any of them, and would not take them back unless the buyer received substituted merchandise and paid for all of it at the contract price, or bought gabardine instead. Now the buyer, crying waiver, asserts that the legal effect is the same as though the seller had accepted unconditionally the buyer’s belated offer to return all of the merchandise which was the subject of the sale. That is what the seller at all times refused to do. Waiver, under these circumstances, “ is essentially a matter of intention. * * * The evidence must have probative force sufficient to prove that there was in fact an intention to waive the right or benefit — a voluntary choice not to claim it. The acts and language of the party must be given, as evidence, their natural and logical effect under the circumstances of the case ” (Alsens Amer. Portland Cement Works v. Degnon Contr. Co., 222 N. Y. 34, 37-38).

This appeal does not involve excusing delay in giving notice of defects or demanding rescission in situations where the buyer has been lulled into security during the passage of the critical time by words or conduct of the seller in attempting to repair defective machinery, or in giving other assurances that deficiencies would be made good in consequence whereof the buyer has remained silent during the time when it is claimed at the trial that he ought to have complained. Here the buyer relied upon no act or representation by the seller to the buyer’s disadvantage which might have extended the time for the buyer to act. The seller repaired none of the property after delivery, and received nothing back in return. The goods were tendered back upon no terms that were accepted by the seller, nor did the seller ever volunteer to retake or replace anything upon any terms agreeable to the buyer.

The judgment appealed from should be affirmed, with costs.

Conway, Ch. J., Desmond, Dye, Fuld, Fboessel and Bubke, JJ., concur.

Judgment affirmed.


source: Caselaw Access Project

author: Fulo, J.

license: Public Domain

text:
    Helen Scheuer, Appellant, v. Clemens Scheuer, Respondent.
    Argued January 11, 1955;
    decided April 28, 1955.

      Nathaniel E. Brower for appellant.
    I. Plaintiff made out a clear case entitling her to the relief sought and her cause of action Avas not barred by the statute of limitations. (White v. La Due & Fitch, 303 N. Y. 122; Wood v. Rabe, 96 N. Y. 414; Goldsmith v. Goldsmith, 145 N. Y. 313; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285; Gorowitz v. Blumenstein, 184 Misc. 111.) II. If this court is disinclined to reverse and send the case back for a new trial, then it should be remitted to Special Term for a statement of the essential facts to be found as required by section 440 of the Civil Practice Act.

      Gilbert J. Fortgang for respondent.
    I. Plaintiff’s cause of action, if any, is barred by the ten-year statute of limitations (Civ. Prac. Act, § 53). (Lammer v. Stoddard, 103 N. Y. 672; Gambold v. MacLean, 126 Misc. 820, 220 App. Div. 773, 255 N. Y. 202; Van Suetendael v. Van Suetendael, 293 N. Y. 233; Dunning v. Dunning, 300 N. Y. 341.) II. There is no estoppel or waiver of the statute of-limitations as a defense in this action. (White v. La Due & Fitch, 303 N. Y. 122; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285; Gorowitz v. Blumenstein, 184 Misc. 111.) III. The decision of the trial court complied with the requirements of section 440 of the Civil Practice Act. (Metropolitan Life Ins. Co. v. Union Trust Co., 268 App. Div. 474, 294 N. Y. 254; Matter of Jaroco Silk Corp. v. Nova, 265 App. Div. 1061; Mason v. Lory Dress Co., 277 App. Div. 660; Van Dyne v. Nelson, 230 App. Div. 577; Gilbert v. Rothschild, 280 N. Y. 66.)
   Fulo, J.

Helen and Clemens Scheuer, wed some 20 years ago, have been living apart since 1951. By this action, commenced in that same year, plaintiff wife seeks to impress a constructive trust in her favor on a house purchased by the husband in his own name, which, she claims, was paid for in part with her money.

According to plaintiff, she entered into an oral agreement with her husband in 1938, whereby she was to contribute $6,000 toward the purchase of a $12,500 home, title to the property to be acquired and taken in both their names. Plaintiff obtained the $6,000 from her mother, she and her sister testified, gave it to defendant and he made the purchase. He took title, however, solely in his own name in October of 1938.

Discussing this about a month later, plaintiff, remarking the agreement between them, asked defendant to have title to the property placed in her name as well as his. His answer was, “ You must trust me. * * * Just as soon as things get a little better I am going to change it. It will be changed. Just be patient.’ ” Defendant assertedly made similar promises in 1946, 1947 and 1949. But, finally, in 1950, plaintiff asserted, defendant flatly refused to effect a change in the title and admitted that he had never really intended ” to do so.

Defendant disputed most of plaintiff’s assertions. He denied that plaintiff had contributed anything to the purchase price of the house, that there had been any such agreement as she claimed or that they had had any conversations about effecting a change in the title to the property. In addition, he pleaded, as defenses, the statute of frauds and the statute of limitations.

The court at Special Term, following a trial, dismissed the complaint on the basis of the ten-year statute of limitations (Civ. Prac. Act, § 53), concluding that the statute began to run on October 4, 1938, when the husband took title to the property in his name alone. The trial judge reviewed the conflicting evidence in a short opinion, but, apparently because of his decision as to the bar of the statute, made no findings on the disputed issues of fact. Upon appeal, plaintiff for the first time voiced the contention that defendant was estopped from invoking the statute of limitations. The Appellate Division affirmed without opinion; two justices, however, dissented and voted to remit the matter to the trial court, pursuant to section 440 of the Civil Practice Act, to make findings bearing on the issue of estoppel.

Since the trial court did not resolve the disputed questions of fact, we must determine whether the dismissal of the complaint may be sustained as a matter of law under that view of the evidence most favorable to plaintiff. (Cf. Betzag v. Gulf Oil Corp., 298 N. Y. 358, 364; Osipoff v. City of New York, 286 N. Y. 422, 425.) Plaintiff’s cause of action accrued on October 4,1938, the date when the acts occurred on which the claim of constructive trust is predicated, and, in the absence of an estoppel, it was necessarily barred in October, 1948, upon the expiration of ten years. (See Finnegan v. McGuffog, 203 N. Y. 342; Lammer v. Stoddard, 103 N. Y. 672; see, also, Hurley v. Hurley, 279 App. Div. 415, affd. 306 N. Y. 647; Hifler v. Calmac Oil & Gas Corp., 258 App. Div. 78, 89; 4 Bogert on Trusts and Trustees [1948], § 953.) The issue before us, therefore, is whether there is any basis in this record for spelling out an estoppel.

At common law, an acknowledgment or promise to perform a previously defaulted contract obligation was effectual, whether oral or in writing, at least in certain types of cases, to start the statute of limitations running anew. (See Shapley v. Abbott, 42 N. Y. 443, 446-447; Henry v. Root, 33 N. Y. 526; see, also, 1 Williston on Contracts [Rev. ed., 1936], § 160 et seq.) Since 1848, however, that rule has been qualified by statute in this state to the extent of requiring the acknowledgment or new promise to be in a writing, signed by the party to be charged. (Code Pro., § 110; Code Civ. Pro., § 395; Civ. Prac. Act, § 59.) There is some doubt whether the common-law rule, as modified by the legislature, encompasses a right of action to enforce a promise by way of constructive trust, such as that asserted in this case. (See 1 Williston, op. cit., § 188; cf. Oothout v. Thompson, 20 Johns. 277, 279; but cf. Kocourek, A Comment on Moral Consideration and the Statute of Limitations, 18 Ill. L. Rev. 538, 546-547.) But, be that as it may, the statutory insistence on a writing would, in any event, be controlling, and, concededly, none of the promises allegedly made by defendant in this case were in writing.

The question whether the doctrine of estoppel may be invoked to give effect to paroi representations or promises, in the face of the statute requiring a writing to establish “ a new or continuing contract ” (Civ. Prac. Act, § 59), has elicited a conflict of views and a contrariety of judicial opinion. (Compare Andreae v. Redfield, 98 U. S. 225, 239, with Schroeder v. Young, 161 U. S. 334, 344; compare Burnett v. Turner, 105 Ark. 290, with Dunnington v. Taylor, 198 Ark. 770; compare Trail v. Firth, 186 Cal. 68 with Rapp v. Rapp, 218 Cal. 505, 509-510; see, also, e.g., Lewis v. Ford, 67 Ala. 143, 146; Bank of Jonesboro v. Carnes, 187 Ga. 795; McKay v. McCarthy, 146 Iowa 546, 551-556; Hodgdon v. Chase, 29 Me. 47, 49-50; Bridges v. Stephens, 132 Mo. 524, 534-543; Cecil v. Henderson, 121 N. C. 244; Armstrong v. Levan, 109 Pa. 177.) There is no need at present to do more than note those decisions, since in this state the question was early answered in the negative in Shapley v. Abbott (supra, 42 N. Y. 443). Indeed, the decision in Shapley went further than we are required to go in this case, for it involved a specific paroi promise by a debtor, after the debt became due, not to plead the statute of limitations. Holding that the obligor was not precluded from raising the defense of limitations in an action subsequently brought by the obligee, the court wrote (p. 451):

* The policy of the statute [then Code Pro., § 110; now Civ. Prac. Act, § 59], requiring that every promise or acknowledgment, to take a case out of the statute, shall be in writing, signed by the party to be charged, is to prevent fraud and perjuries. And it is the duty of courts so to administer the law as to uphold this policy. If a paroi promise not to plead the statute is to be held operative, either as a waiver, or an agreement, or by way of estoppel, to subvert the statute, then all the mischief, as this case shows, will be let in which it was the policy of the law to shut out. ’ ’

Nor is there any basis for estoppel in the asserted confidential relationship of the parties. The statute of limitations is not tolled merely because the parties are husband and wife. (See Dunning v. Dunning, 300 N. Y. 341, 343.) It is urged that we may here draw an analogy from the settled doctrine of equity that the statute of frauds may "not be raised as a bar to the granting of relief, by way of constructive trust, against unjust enrichment accomplished by abusing a confidential relation. (Cf. Wood v. Rabe, 96 N. Y. 414; Goldsmith v. Goldsmith, 145 N. Y. 313; Sinclair v. Purdy, 235 N. Y. 245.) However, the suggested extension of that doctrine to a case involving the statute of limitations is without support, either in authority, in logic or in policy.

The statute of frauds, it is quite true, will not be allowed to serve as “ an instrument of fraud ” in depriving the wronged party of all remedy whatever in such cases, particularly where that statute comes in conflict with the traditional powers of equity in the field of constructive trust. (See Wood v. Rabe, supra, 96 N. Y. 414, 425; see, also, Latham v. Father Divine, 299 N. Y. 22, 27-29.) Such considerations as those, however, have no application to the issue here presented. There is no evidence that defendant was using the statute of limitations as “ an instrument of fraud,” and invocation of the defense of that statute furnishes no interference with the exercise of equitable jurisdiction, it being well settled that even causes of action in equity are subject to time limitations. (See, e.g., Sialkot Importing Corp. v. Berlin, 295 N. Y. 482, 486-487; Mills v. Mills, 115 N. Y. 80, 86.) Plaintiff had 10 years within which to pursue her remedy against defendant, and there is no warrant or justification for creating any exception to the usual limitations applicable in such cases.

In view of our conclusion that the claim of estoppel is without support on this record, the trial court cannot be held to have violated the statutory requirement that the facts deemed “ essential ” be stated in its decision. (Civ. Prac. Act, § 440.) We recognize that, if there were some basis for that claim in the evidence and in law, findings of the facts bearing thereon would be “essential ” to decision, and the trial court could not then dismiss the complaint without first resolving the disputed factual issues by express findings in accordance with the statute. (See Dougherty v. Lion Fire Ins. Co., 183 N. Y. 302; Cuyler v. Wallace, 183 N. Y. 291; Mason v. Lory Dress Co., 277 App. Div. 660.) In the case before us, however, no version of the evidence, no matter how favorable to plaintiff, could give rise to an estoppel. Whether the facts were as asserted by plaintiff or as testified to by defendant, cannot, therefore, be regarded as “ essential *' to decision, and it would be pointless and futile to remit the case for the making of findings that could not possibly have any effect upon the outcome of the litigation.

The judgment should be affirmed, without costs.

Conway, Ch. J., Desmond, Van Voorhis and Burke, JJ., concur; Dye and Froessel, JJ., concur in the result only.

Judgment affirmed.

      . Section 59 of the Civil Practice Act recites that “An acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take a case out of the operation of the provisions of this article relating to the limitations of time within which an action must be brought other than for the recovery of real property.”


author: Dye, J.

text:
    The People of the State of New York, Respondent, v. Saul Shapiro, Appellant.
    Argued January 18,1955;
    decided April 28, 1955.

      Nathan Kestnbaum for appellant.
    I. The trial court committed numerous reversible errors of law, requiring a new trial. (People v. Bonier, 179 N. Y. 315; People v. Marendi, 213 N. Y. 600; People v. Hetenyi, 277 App. Div. 310.) II. Defendant’s rights were invaded by questions, relating to privileged conversations between defendant and his attorney regarding Doris Davis, put to defendant over repeated objection and exception. (Bloodgood v. Lynch, 293 N. Y. 308.) III. The court, invading defendant’s rights, had forced defendant to call a witness and she destroyed his defense. IY. Defendant, as was his privilege, endeavored to prove that he enjoyed a good reputation. Section 542 of the Code of Criminal Procedure may not be invoked to causa disregard of error on the issue. Among his character witnesses, he called the president of the firm where defendant was employed. This character witness was subjected to a grossly unfair and protracted questioning by the court. (People v. Van Gaasbeck, 189 N. Y. 408; People v. Trimarchi, 231 N. Y. 263; People v. Elliott, 163 N. Y. 11.) V. The conduct of the trial court was plainly calculated to and, in fact, did deprive defendant of a fair trial as a matter of law. (People v. Viscio, 241 App. Div. 499; People v. Becker, 210 N. Y. 274; People v. Acardo, 140 App. Div. 929; People v. De Maio, 243 N. Y. 588; People v. Adler, 274 App. Div. 820; People v. Stephens, 200 Misc. 701; People v. Wolf, 183 N. Y. 464.) VI. Exhibits may be taken into the jury room only with the consent of defendant, and neither he nor his counsel should be asked in the presence of the jury whether they so consent. (People v. Snyder, 297 N. Y. 81.) VII. An order allegedly correcting the record to show that the jury had been excused was improper.

      Frank 8. Hogan, District Attorney (Leonard E. Beisman and Richard Q. Denser of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v. Taddio, 292 N. Y. 488; People v. Willett, 213 N. Y. 368; People v. Place, 157 N. Y. 584; People v. Birnbaum, 208 App. Div. 476.) II. A defendant, having taken the stand as a witness, will be deemed to have waived any privilege he may have as to communications between himself and his attorneys. In any event, the testimony in issue was of an inconsequential nature and the error, if any, was harmless. (Shafer v. Utica Mut. Life Ins. Co., 248 App. Div. 279; Chellis v. Chapman, 125 N. Y. 214; Bolt & Co. v. Gilmore, 120 Misc. 116.) III. A character witness may not testify as to his own opinion of the defendant’s character, but is limited, rather, to his knowledge of the reputation he bears in the community. Accordingly, since the witness’ personal estimate is of no consequence, evidence as to his industrial or social eminence would appear to be irrelevant and properly excludable. (People v. Fay, 270 App. Div. 261, 296 N. Y. 510; People v. Laudiero, 192 N. Y. 304.) IV. The declarations of a defendant’s coconspirator or accomplice uttered in furtherance of the crime charged are admissible and binding upon the defendant so long as there is other evidence showing the existence of the conspiracy between the defendant and the declarant.
      (People v. Becker, 215 N. Y. 126; People v. McKane, 143 N. Y. 455.) V. The court’s conduct of the trial was proper. In the light of their background and of defense counsel’s conduct as a whole, the court’s comments were generally justified and cannot be stamped prejudicial. VI. The Court of General Sessions had both jurisdiction and power to order the correction of its own inaccurate record. (Peterson v. Swan, 119 N. Y. 662; People v. Carrano, 275 App. Div. 661; People v. Schafer, 267 App. Div. 751; De Cicco v. Schweizer, 176 App. Div. 679.)
   Dye, J.

The defendant has appealed by permission of an Associate Judge of this court from the unanimous affirmance by the Appellate Division of a judgment of the Court of General Sessions of the County of New York, following a jury trial convicting him of two crimes of robbery in the first degree, the crime of attempted robbery, first degree (Penal Law, § 2124) and the crime of conspiracy (Penal Law, § 580).

The defendant had been jointly indicted with three others named Sidney Rudish, Peter Corso and Fred Herman, each of whom pleaded guilty and none of whom was called as a witness at the trial of the defendant.

On this appeal the defendant does not argue the sufficiency of the People’s proof to sustain the jury verdict of guilt but confines himself to errors of law and asks that a new trial be granted.

At the trial the People adduced evidence showing that on Thursday evening, October 23, 1952, at about 9:30 p.m. Rudish, Corso and Herman entered an F. W. Woolworth store located near Fifth Avenue between 13th and 14th Streets, New York City, and at gun point held up two employees who were closing-up for the night. When their attempt to open a safe containing a $5,000 payroll failed, they robbed the two employees of $49 in cash and left the building to walk into the arms of waiting-police. ’ Upon the arrest and disarming of the three named gunmen, other officers arrested the defendant as he sat behind the wheel of his car, double parked with motor running, in such a position that it could be driven away without any delay. He was immediately returned to the scene, confronted with the three disarmed gunmen and before any one had accused him of anything protested his innocence and stated that he had “ never [seen] them in my life * * * I don’t want to say no more * * * I want to get a lawyer ”. As a matter of fact he was well acquainted with them and the officers had seen them together a short time before. When the defendant took the witness stand in his own behalf, he was submitted to a searching and exhaustive cross-examination respecting his alleged claim that his presence at the scene of the crime was for the innocent purpose of keeping a date with a girl whose name, other than “ Doris ” and address he did not know and that they were to meet Corso and his girl for a double date.

Doris was not in the courtroom. Her whereabouts was unknown to the prosecutor and there was every reason to believe that the defense did not intend to call her as a witness. The prosecutor, in the course of defendant’s cross-examination, sought to elicit information as to where Doris might be located. When this line of questioning was not productive, the prosecutor then sought to find out if at any time he had ever told anyone her address. When the defendant witness denied that he had, he was then asked a series of questions as to whether he had ever told his present or former attorney where Doris might be found or whether they had told him not to bother about getting in touch with her, or what he had said to either attorney and what the attorneys had said to him. Objections by defense counsel to this line of questioning were overruled and defendant was directed to answer, the court having ruled that: ‘ ‘ Let me inform you that when you take the witness stand to testify, you are the same as any other witness. If you didn’t want to take the witness stand, nobody could have compelled you to take the stand, but when you take the witness stand, then you answer all questions that are put to you; is that clear to you? ”

Paced with the dilemma created by this line of questioning, the defense counsel asked the aid of the court and the prosecutor to assist in producing Doris Davis, whom a process server employed by the defense had just then located as a patient in a city hospital. The trial judge granted this. • Doris corroborated the defendant’s prior testimony that a date had been made for the evening in question, but contradicted his testimony as to the time of making it, the plan for a double date or that she had tallied with him on the telephone. The defendant now claims that as a result of the ruling and the questioning he was forced to call Doris as a witness; that in calling her his defenses were destroyed with the result that, the defendant was prejudiced in a fundamental right before the jury and denied a fair trial.

It is fundamental in our jurisprudence that no person can be compelled in a criminal action to be a witness against himself (U. S. Const., 5th Amendt.; N. Y. Const., art. I, § 6; Code Grim. Pro., § 10). On the other hand, a defendant, if he chooses, may testify as a witness in his own behalf (Code Grim. Pro., § 393). When he does so voluntarily, he subjects himself to the same rules of examination controlling examination of any other witness (People v. Tice, 131 N. Y. 651), including all matters relative to the issue, even though injurious to his defenses (People v. Trybus, 219 N. Y. 18). In taking the stand a defendant witness is deemed to have waived as a necessary consequence of his election to testify the constitutional and statutory protection against self incrimination (People v. Russo, 251 App. Div. 176; People v. Rosenheimer, 209 N. Y. 115). The waiver thus approved as a basis for compelling testimony or the production of evidence on the substantive issue by a defendant witness so far as we can ascertain has not been approved as a waiver of the rules governing the competence and admission of evidence • — • particularly those fundamental rules pertaining to privileged communications. Such communications are zealously guarded (Civ. Prac. Act, §§ 353-354; Matter of New York City Council v. Goldwater, 284 N. Y. 296). Such privilege, however, may be waived by express consent which consent is also implied when a client witness voluntarily gives testimony respecting the privileged matter (People v. Patrick, 182 N. Y. 131).

Such statutes and decisional law express a long-standing public policy to encourage uninhibited communication between persons standing in a relation of confidence and trust, such as husband and wife (Civ. Prac. Act, § 349; People v. Daghita, 299 N. Y. 194); confessor and clergyman, or doctor and patient (Civ. Prac. Act, §§ 351-352; 5 Chamberlayne on Evidence, § 3696; Woernley v. Electromatic Typewriters, 271 N. Y. 229); attorney and client (Civ. Prac. Act, § 353; People v. Patrick, supra). In carrying out such policy the statutes are accorded a broad and liberal construction (Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N. Y. 450, followed in Matter of New York City Council v. Goldwater, supra). To say that the broad protection of such policy is not available to a defendant when he takes the stand in a criminal case would entail consequences far more detrimental to the interests of society than does rejection of the evidence that might be disclosed. When the client, especially one accused of crimes, asks for advice and guidance in the premises, he should be able to speak freely without any fear and in full confidence that what is said by him or to him by his attorney will not be subsequently subject to disclosure if he takes the witness stand during the trial of his case. Any other policy than strict inviolability, unless expressly waived, would seriously hamper the administration of justice, for the client would perhaps refrain from telling the truth or withhold the truth, while the lawyer would be reluctant to give the correct advice and counsel if he thought it would be subject to disclosure in the event his client took the stand to testify in his own behalf. It is for these and other reasons that the rule against disclosure is of such importance and that it may not be waived except as the statute provides with “ the express consent ” of the client (cf. Matter of People v. Cravath, 58 Misc. 154). The privilege of nondisclosure belongs to the client alone (Svenson v. Svenson, 178 N. Y. 54) and disclosure should not be compelled when a client’s liberty is at stake in a criminal trial.

We believe that it was wrong to permit interrogation of this defendant witness on what took place between him and his attorneys. He did not expressly consent to waive the privilege of confidence but in fact protested vigorously and asserted alleged constitutional protection. His lawyer, as we have seen, objected to no avail. Consent to waive applicable evidentiary disabilities may not be implied from the circumstance that he took the stand in his own behalf.

Our attention has not been called to any New York cases holding that a privileged communication is waived when a person takes the stand in a criminal case. In logic and reason a distinction should be made between the waiver deemed to have been made when the defendant witness is interrogated on the issue of his guilt and the rules of evidence relating to privileged communications between himself and his attorney, the disclosure of which would serve to assure the prosecutor a verdict of guilt (cf. 8 Wigmore on Evidence, § 2327; 3 Wharton’s Criminal Evidence [11th ed.], § 1117, p. 1951).

We are mindful of the general rule applying to criminal trials that " it can never be necessary to add anything to the plain and simple language of the statute ” (People v. Fitzgerald, 156 N. Y. 253, 266). The statutes against nondisclosure are couched in clear and simple language. The substantiality of the court’s error is not overcome nor may it be excused, because the answers ultimately given to the objectionable line of questioning were either categorically in the negative or “I don’t know ” or at most, were harmless, because defense counsel was asking to subpoena Doris and finally, with the aid of the court, produced her as a defense witness. The fact of the matter is that her testimony demolished the defense regardless of whether or not the jury would have accepted it as a defense. In such light it is not clear on what grounds it can reasonably be said that such error is insubstantial and had no effect on the minds of the jurors. Once the seal attending the disclosure of privileged communications has been broken, it cannot very well be restored. This is too fundamental to be overlooked (Code Crim. Pro., § 542). The important thing in the trial of a criminal case is to accord defendant a fair trial. (People v. Marendi, 213 N. Y. 600.)

The remaining assigned errors need not detain us since they have to do with matters pertaining to the conduct of the trial.

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

Fuld, Froessel, Van Yoorhis and Burke, JJ., concur; Conway, Ch. J., and Desmond, J., dissent and vote to affirm upon the ground that whether or not there was a waiver of the privilege of the attorney and client relation, the claimed error on this record was not prejudicial to defendant.

Judgments reversed, etc.


author: Froessbl, J.

text:
    Fred W. Hoch Associates, Inc., Respondent, v. Western Newspaper Union, Inc., Appellant.
    Argued February 22, 1955;
    decided April 28, 1955.

      Frederick W. P. Lorenzen, Bruce R. Tuttle, Stanley Godofsky and Charles F. Young for appellant.
    I. Plaintiff’s conduct estops it from claiming a commission from defendant. (Sibbald
      v. Bethlehem Iron Co., 83 N. Y. 378; Elco Shoe Manufacturers v. Sisk, 260 N. Y. 100; Dickinson v. Tysen, 209 N. Y. 395; Greenfield v. Bausch, 238 App. Div. 52; Anglo Eastern Trading Co. v. New Tread Tire Co., 222 App. Div. 475; Lent-Agnew Realty Co. v. Trebert, 212 App. Div. 460; Courtney v. Rhodes, 148 App. Div. 799; Howard v. McCredie, 198 App. Div. 49; Richmond Hill Realty Co. v. East Richmond Hill Land Co., 246 App. Div. 301; Gregg v. Von Phul, 1 Wall. [U. S.] 274.) II. Plaintiff was not the procuring cause of the sale. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Satterthwaite v. Vreeland, 3 Hun 152; Hay v. Platt, 66 Hun 488; Freedman v. Havemeyer, 37 App. Div. 518; Paige v. Powers, 215 App. Div. 721; Sampson v. Ottinger, 93 App. Div. 226; Haase v. Ullmann, 148 App. Div. 40; Carroll v. Pettit, 67 Hun 418.) III. Admission of evidence relating to plaintiff’s unsuccessful efforts to procure Chernoble as a purchaser entitles defendant to a new trial. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Engel v. United Traction Co., 203 N, Y. 321.)

      Framcis J. Ryan, Jr., for respondent.
    I. The record is barren of any factual premise for estoppel against plaintiff. (Courtney v. Rhodes, 148 App. Div. 799; Howard v. McCredie, 198 App. Div. 49; Nolan v. Brooklyn City & Newtown R. R. Co., 87 N. Y. 63.) II. No question of law is raised by the appeal; the verdict and judgments below find support in the record. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Lloyd v. Matthews, 51 N. Y. 124; Sussdorff v. Schmidt, 55 N. Y. 319; Palmer v. Durand, 62 App. Div. 467; Travis v. Bowron, 138 App. Div. 554; Karlin v. Heller, 137 Misc. 261.) III. The admission of evidence relating to Chernoble was proper. (Buckin v. Long Is. R. R. Co., 286 N. Y. 146; Berner v. Board of Educ., North Tonawanda, 286 N. Y. 174; Leonard v. Home Owners’ Loan Corp., 297 N. Y. 103.)
   Froessbl, J.

This is an action for brokerage commissions allegedly earned in the sale of defendant’s publications printing plant. Plaintiff recovered a judgment in the sum of upwards of $19,500 after a jury trial, and the Appellate Division unanimously affirmed without opinion. It will serve no useful purpose to review the voluminous evidence adduced upon the trial; suffice it to say that, viewing the evidence ■— absent error in its receipt — in the light most favorable to plaintiff, as we must, the jury was entitled to resolve the factual issues. Accordingly, defendant’s contention that plaintiff has failed as a matter of law to make out a prima facie case must fail.

Defendant also claims that plaintiff’s conduct estops it from claiming a commission on this sale. Upon this record, we find the evidence in that connection insufficient to warrant its submission to the jury. More particularly, one of the essential elements of estoppel — knowledge on the part of plaintiff imposing on him a duty to speak — is entirely lacking.

We come, then, to defendant’s final contention concerning the admissibility over its counsel’s repeated and strenuous objections of considerable evidence showing plaintiff’s unsuccessful efforts to sell defendant’s printing plant to one Samuel Chernoble, an individual other than the ultimate purchaser whom plaintiff claimed to have procured. It is fundamental that, for such unsuccessful efforts, a broker must go uncompensated (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 383), and evidence thereof is not only immaterial but may strongly tend to prejudice the jury, particularly where, as here, the claim was vigorously contested.

Accordingly, the trial court’s receipt of this evidence on the merits of the case, “ as part of the services rendered ” by plaintiff, was serious error, which in our opinion was not cured, after a change of mind, by its belated attempt in its charge to restrict its use solely to that of corroborating a small portion of plaintiff’s testimony (Arthur v. Griswold, 55 N. Y. 400, 408; Erben v. Lorillard, 19 N. Y. 299; Russell v. New York Central & H. R. R. R. Co., 96 App. Div. 151, 153; Martin v. Paddleford, 183 App. Div. 354; see Greenberg v. Prudential Ins. Co. of America, 266 App. Div. 685; Gilmore v. Butts, 198 App. Div. 108). Even for such purpose, it was also erroneous since it was clearly hearsay. Chernoble’s testimony could not be received for the purpose of corroborating plaintiff’s testimony as to the price at which plaintiff claimed defendant’s officer Brown authorized him to offer the printing plant for sale. Such testimony was not admissible as proof of what Brown said; at best, what plaintiff told Chernoble that Brown had said Avas hearsay from Chernoble’s lips. This is not corroboration of plaintiff’s testimony.

Nor does the record support plaintiff’s argument, suggested for the first time on appeal, that the evidence could properly have been received as hearing upon the credibility of defendant’s witnesses, since, among other reasons, defendant’s witnesses had not yet even been called to testify.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

Conway, Ch. J., Desmond, Dye, Fuld, Van Voorhis and Burke, JJ., concur.

Judgments reversed, etc.


text:
    Daniel-Morris Co., Inc., Respondent, v. Glens Falls Indemnity Company et al., Appellants, et al., Defendants.
    Argued January 6, 1955;
    decided April 28, 1955.

      David 8. Konheim for Glens Falls Indemnity Company, appellant.
    I. Plaintiff has no right of action on the bond. (Associated Flour Haulers & Warehousemen v. Hoffman, 282 N. Y. 173; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; Skinner Bros. Mfg. Co. v. Shevlin Engineering Co., 231 App. Div. 656, 257 N. Y. 562; Van Clief & Sons v. City of New York, 141 Misc. 216; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Lamb v. Union Ry. Co., 195 N. Y. 260.) II. The inference that Big-W did not need the payment bond for its own use and protection is not justified by the record. (American Radiator Co. v. City of New York, 223 N. Y. 193; Anisansel v. Coggeshall, 83 App. Div. 491.) III. The inference that Big-W Construction Corp. did not want the payment bond for its sole use and protection and as the sole obligee thereof is unfounded. (Beveridge v. New York Elevated R. R. Co., 112 N. Y. 1; Gearns v. Commercial Cable Co., 293 N. Y. 105; Matter of Loew’s Buffalo Theatres, 233 N. Y. 495.) IV. A substitution for a named obligee in a bond ought not be made without clear and decisive proof requiring such substitution. (McClare v. Massachusetts Bonding & Ins. Co., 266 N. Y. 371; Fosmire v. National Sur. Co., 229 N. Y. 44; Duffy Co. v. Board of Educ., 255 App. Div. 493, 280 N. Y. 773; McCormack Sand Co. v. Edward D. W. Milligan, Inc., 253 App. Div. 743; Galasso v. National Sur. Co., 251 App. Div. 805; Graybar Elec. Co. v. New Amsterdam Cas. Co., 292 N. Y. 246; Strong v. American Fence Constr. Co., 245 N. Y. 48.)

      Leon J. Shapiro and G. A. Shapiro for* Big-W Construction Corp., appellant.
    I. Plaintiff is not entitled to relief against defendant Big-W Construction Corp. (Strong v. American Fence Constr. Co., 245 N. Y. 48.) II. If plaintiff is a third-party beneficiary under the bond, any relief to which it is entitled can and should be direct relief against the surety company.

      Sibyl G. Welling for respondent.
    I. The payment bond sued on, being an instrument of guarantee separate and independent of any indemnity to the contractor, is for the benefit of plaintiff who has a direct right of action thereon supported by fact and law. (Lawrence v. Fox, 20 N. Y. 268; Seaver v. Ranson, 224 N. Y. 233; Van Clief & Sons v. City of New York, 141 Misc. 216; McCormack Sand Co. v. Edward D. W. Milligan, Inc., 253 App. Div. 743; Fosmire v. National Sur. Co., 229 N. Y. 44; Duffy Co. v. Board of Educ., 280 N. Y. 773; Graybar Elec. Co. v. Seaboard Sur. Co., 157 Misc. 275; Johnson Service Co. v. E. H. Monin, Inc., 253 N. Y. 417; McClare v. Massachusetts Bonding & Ins. Co., 266 N. Y. 371.) II. For laborers and materialmen to have a right to enforce the payment bond directly strictly fulfills the intention of the bond as created through the motivation of the obligeeprime contractor. (State v. Logan, 344 Mo. 351.) III. The contention of appellant surety company that settled law in this State prohibits a materialman from directly enforcing a separate payment bond is contrary to fact.
   Dye, J.

In this action to recover on a contractor’s payment bond, the defendants have appealed from an order of the Appellate Division, First Department, which modified a judgment of the Supreme Court, New York County, by reversing on the facts and the law so much thereof as had dismissed the plaintiff’s complaint against the defendants Glens Falls Indemnity Company and Big-W and ordering a new trial. The appeals are here on a stipulation for judgment absolute, notwithstanding that permission to appeal was granted on certified questions (Civ. Prac. Act, § 588, subd. 3; Matter of Brooklyn Union Gas Co. v. McGoldrick, 270 App. Div. 186, appeal dismissed 297 N. Y. 936, see footnote 297 N. Y. 937; 298 N. Y. 536).

Big-W, as general contractor for a large housing project, by written contract, sublet the heating and plumbing to defendants Horowitz & Rubin, a copartnership, by the terms of which the latter agreed to furnish materials and labor “ free of the lien of any third party ” and to “ indemnify and save harmless the contractor, the owners * * * against loss, damages or expense ” to secure which they agreed to furnish a 20% Payment and a 20% Performance Bond, both of which are to be paid by the General Contractor. ’ ’

To meet this contract requirement, two contractor’s bonds in favor of Big-W as obligee, were executed by Glens Falls Indemnity Company, as surety, and Horowitz & Rubin, as principals. The respective premiums charged were paid by Big-W. The bonds constituted separate and distinct documents — one being a standard contractors form payment bond in the penal amount of $78,000 conditioned, however, if the Principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in said contract * * * then this obligation to be void, otherwise to remain in full force and virtue.” It is this bond with which we are now concerned, as the separate performance bond in an equal amount and conditioned on performance of the subcontract was not available to this materialman in any event.

Ill the course of the work the plaintiff furnished to Horowitz & Rubin plumbing supplies of the value of $17,077.36 for which it was not paid. When the subcontractor failed, the plaintiff made due and timely demand for payment of the defendants Glens Falls Indemnity Company as surety and Big-W as general contractor. Glens Falls refused to pay the plaintiff or Big-W for the use and benefit of the plaintiff. Plaintiff then demanded of Big-W that it institute suit against Glens Falls Indemnity Company to compel it to pay the indebtedness due them. Big-W refused. This suit was then commenced, Big-W defending on the ground that the payment bond did not inure to the benefit of a third-party materialman, but ran only to the benefit of Big-W as general contractor. At the trial, before a Justice of the Supreme Court, without a jury, the parties submitted the contracts and the bonds, and stipulated that the plaintiff did not sell and deliver the material and supplies in reliance on any representations made to it by Glens Falls Indemnity Company “ except to the extent to which the bond itself is a representation ”.

The Trial Justice, in dismissing the complaint on the merits, took the view that the plaintiff had no right as a third-party beneficiary to enforce the separate payment bond for its own use and benefit for the reason that the bond had been given to indemnify the general contractor and that the bond was not such a representation as to enlarge the liability of the surety for nonpayment by the subcontractor. The Appellate Division, as we have indicated, took a contrary view which we approve. The validity of the within payment bond is not questioned; the only issue is whether this plaintiff may enforce it. The affirmative answer is furnished by the circumstances under which the bond was written. The underlying contract, as we have pointed out, required the furnishing of work and materials “free of the lien of any third party and indemnity for nonperformance. To meet this underlying obligation two separate and distinct bonds were given. Suit by this plaintiff to enforce the payment bond is an entirely different situation than that existing where the obligations of the surety are combined in a single payment — performance bond. In such a situation a materialman may not maintain a separate suit as a third-party beneficiary because the primary or dominant purpose of the combined bond is regarded as “ performance ” which should not be dissipated or defeated by the neglect of the subcontractor to meet his obligation (Fosmire v. National Sur. Co., 229 N. Y. 44).

Here we are not confronted with the problem of ascertaining the dominant purpose of a bond having a twofold function, but simply whether the primary, paramount purpose of this bond — payment of materialmen — may be enforced by a materialman. On this record it is clear that he may. This introduces no new principle — a materialman is allowed to sue as a third-party beneficiary whenever the primary purpose of [the] bond but * * * also [its] paramount purpose ” is to benefit creditors (cf. McClare v. Massachusetts Bonding & Ins. Co., 266 N. Y. 371, 377). The language of the within bond specifically provides that the materials furnished are to be “ free of the lien of any third party ”. When this is read in conjunction with the underlying contract, the inference is irresistible that the parties intended to benefit unpaid materialmen. The intention to benefit is pointed up by the fact that the separate performance bond given to the prime contractor afforded it protection for noncompletion of the work, which necessarily included the contingencies within the indemnification of the payment bond. The materialman, on the other hand, had no recourse against the performance bond.

The intention to benefit the materialmen must not be confused with the motive of the parties in entering into the bond. Big-W’s demand for indemnification, as pointed out in the opinion below, supplies the motive in securing the undertaking rather than the intent as to who shall be benefited ”. Once the right is created the law furnishes a remedy irrespective of the motivation of the parties (Seaver v. Ransom, 224 N. Y. 233; Lawrence v. Fox, 20 N. Y. 268; 2 Williston on Contracts, §§ 372-402; Corbin, Third Parties as Beneficiaries of Contractors’ Surety Bonds, 38 Yale L. J. 1).

McGrath v. American Sur. Co. (283 App. Div. 693, 698, revd. 307 N. Y. 552) is not authority to the contrary. There it clearly appeared that the bond sought to be enforced was not intended to supersede or supplement the right of action given material-men under the Miller Act (U. S. Code, tit. 40, §§ 270a, 270b; cf. Socony-Vacuum Oil Co. v. Continental Cas. Co., 219 F. 2d 645 [U. S. Court of Appeals, 2d Cir.]).

Nothing turns on the circumstance that the bonds were respectively written for only 20% of the contract price. Ordinarily, in dealing with responsible contractors, this would be sufficient as payments are withheld pending certification of progress and completion. The 20% limitation was a calculated risk. That it turned out to be insufficient cannot embarrass the surety; its ultimate liability is fixed by the penalty of the bond. Whatever it pays to a third party will be in reduction of its liability to the prime contractor.

The order of the Appellate Division should be affirmed, with costs, and judgment absolute directed against appellants on the stipulations herein.

Conway, Ch. J., Desmond, Fuld, Feoessel, Van Voorhis and Burke, JJ., concur.

Order affirmed, etc.


author: Ftjld, J.

text:
    John P. Crane, Appellant, v. New York World Telegram Corp. et al., Respondents.
    Argued March 4, 1955;
    decided April 28, 1955.

      Morris G. Zirin and Eugene F. Bannigan for appellant.
    I. The meaning of the defamation is clear and unambiguous and constitutes libel per se. (Cafferty v. Southern Tier Pub. Co., 226 N. Y. 87; Larsen v. Brooklyn Daily Eagle, 165 App. Div. 4, 214 N. Y. 713; Neaton v. Lewis Apparel Stores, 267 App. Div. 728; Matarazzo v. Daily Gazette Co., 276 App. Div. 249; Mencher v. Chesley, 297 N. Y. 94; Burnham v. Hornaday, 130 Misc. 207, 223 App. Div. 218; Schoepflin v. Coffey, 25 App. Div. 438, 162 N. Y. 12; Szalay v. New York Amer., 254 App. Div. 249.) II. The purported justification alleged in both defenses failed to embrace the broad aspect of the libel, and failed to establish the truth thereof. Both complete and partial defenses are insufficient in law. (La Stampa Libera Assn. v. New York Evening Journal, 170 Misc. 1067; Rathkopf v. Walker, 190 Misc. 168, 274 App. Div. 1064; Rouadi v. New York Evening Journal, 255 App. Div. 794; Fleckenstein v. Friedman, 266 N. Y. 19; Levey v. New York Evening Journal, 237 App. Div. 255.) III. The allegations in the partial defense in mitigation or reduction of damages were likewise defective and legally insufficient. (Hamilton v. Eno, 81 N. Y. 116; Mattice v. Wilcox, 147 N. Y. 624; New York Soc. for Suppression of Vice v. Macfadden Publications, 133 Misc. 686; Klein v. Biben, 188 Misc. 681; Kehoe v. New York Tribune, 229 App. Div. 220; McClelland v. Climax Hosiery Mills, 252 N. Y. 347; Burnham v. Hornaday, 130 Misc. 207, 223 App. Div. 218; Sherman v. International Publications, 214 App. Div. 437.) IY. The allegations of both defenses were irrelevant, conclusory and prejudicial and would be incompetent and inadmissible on trial. Their striking was required by rule 103 of the Buies of Civil Practice. (Stone v. Friedman, 271 App. Div. 790; Frost v. Friedman, 271 App. Div. 787; Theodore v. Daily Mirror, 282 N. Y. 345; Cudlip v. New York Evening Journal Pub. Co., 180 N. Y. 85; Richards v. Bieber, 166 Misc. 91, 254 App. Div. 832; Wuensch v. Morning Journal Assn., 4 App. Div. 110; Dinwiddie v. Rochester News Corp., 132 Misc. 876; Sherman v. International Publications, 214 App. Div. 437.)

      Thomas A. Diskin, Macdonald De Witt, C. Coudert Nast and William E. Flannery for respondents.
    I. The complete defense of justification is as broad as the charge of which plaintiff complains. (Washington Post Co. v. Chaloner, 250 U. S. 290; Demos v. New York Evening Journal Pub. Co., 210 N. Y. 13; Baumann v. Newspaper Enterprises, 270 App. Div. 825; Van Arsdale v. Time, 265 App. Div. 919; Shields v. Chilton Co., 255 App. Div. 985; Finkle v. Westchester Newspapers, 235 App. Div. 817; Rovira v. Boget, 240 N. Y. 314; Briarcliff Lodge Hotel v. Citizens-Sentinel Publishers, 260 N. Y. 106; Fleckenstein v. Friedman, 266 N. Y. 19.) II. The partial defense pleaded is sufficient as a matter of law. (Morse v. Press Pub. Co., 63 App. Div. 61; Klaw v. New York Press Co., 144 App. Div. 501; Bergstrom v. Commercial Advertiser Assn., 147 App. Div. 774; Levey v. New York Evening Journal, 237 App. Div. 255; Goodrow v. New York Amer., 233 App. Div. 37.)
   Ftjld, J.

On December 6, 1951, there appeared in a column of the New York World-Telegram and The Sun, a newspaper of wide daily circulation, this item:

John Crane, former president of the UFA now under indictment, isn’t waiting for his own legal developments. Meanwhile his lawyers are launching a $,$$$,$$$ defamation suit.’ ”

The present action for libel followed; the individual defendant is the columnist who wrote the piece, the corporate defendant, the" owner and publisher of the paper. The answer which defendants interposed includes two separate defenses, one complete, the other partial, both based on the premise and hypothesis that the charge is true in that plaintiff, though never “ indicted ” by a grand jury, had been accused of a number of indictable crimes by various people. By the motion under consideration, an order is sought striking both defenses as insufficient in law.

Plaintiff alleges that the publication was false and defama-, tory, that defendants knew or could have ascertained its falsity by the exercise of reasonable care and that they were guilty of “ actual malice and wrongfully and wilfully intended to injure the plaintiff.” Claiming, among other things, great injury to credit and reputation and an inability to secure or retain employment, he asks damages of $100,000.

Defendants deny all these allegations, except that of publication, and allege two separate defenses. The first of these purports to establish the truth of the publication. While nowhere stating that plaintiff was indicted by a grand jury — and, concededly, he never was — it asserts, nevertheless, that he was under indictment ” in an alleged nonlegal sense of that term; more specifically, it recites that he had been accused of various crimes by private individuals and was, in fact, guilty of those crimes. In support of the publication’s truth under such a construction, it sets forth in considerable detail the substance of the New York City Fire Department scandals and investigations of 1950-1951, in which plaintiff, then president of an association of firemen, and others are depicted as playing a prominent part.

Little purpose would be served by repeating these allegations at any length. It is enough to observe that —while many of them touch on the derelictions of other firemen and relate to matters in which it is not clear that plaintiff was involved — it is recited that plaintiff misappropriated proceeds from the sale of tickets to the anual Firemen’s Balls; that he had been accused of criminal activity by fellow firemen and others; and that, in testifying before a New York County grand jury and a committee of the United States Senate, he had admitted, without waiving immunity, facts which established his guilt of larceny and bribery.

The second separate defense, designated “ Partial ”, repeats and makes a part of itself each and every allegation of the first defense. It states that the facts set forth were widely published and commented on by the press of New York City and that the general reputation of the plaintiff in [that city] and its vicinity was bad ” at the time of the publication and for some time before. And, in conclusion, the answer avers that “ All of the facts hereinabove * * * pleaded ” were known- to and relied upon by defendants at the time of publication, and induced them to believe in the truth of the alleged libel.

The court at Special Term granted plaintiff’s motion, directing that both defenses be stricken as insufficient in law (Rules Civ. Prac., rule 109), on the ground that they had no relation to the truth of the publication. In the absence of qualifying-language, the court said, the term “ indictment ” could be understood by reasonable people “ in only one sense, namely, as a charge by a grand jury of the commission of .a crime.” The Appellate Division took a different view; it reversed, holding that ‘ ‘ indictment ’ ’ is reasonably susceptible to both the meaning “ of an accusation by a grand jury, and of an accusation generally ’ ’, and that it was for a jury to say in what sense it would be understood by the reader. The appeal is here by permission of the Appellate Division on certified questions.

In our judgment, the publication complained of, when considered in context as it must be, could reasonably be read and interpreted in only one way, that is, as charging that plaintiff had been indicted by the grand jury for some crime. “ It has long been the rule that words charged to be defamatory are to be taken in their natural meaning ” (Mencher v. Chesley, 297 N. Y. 94, 99); they are to be “ construed as persons generally understand them and according to their ordinary meaning.” (Cafferty v. Southern Tier Pub. Co., 226 N. Y. 87, 93.) There can be no question that the “ ordinary meaning ” of the term “indictment” is that of the legal process, usually before a grand jury, whereby a person is formally charged with crime and a criminal prosecution begun. The courts have so recognized (see Jones, Varnum & Co. v. Townsend’s Administratrix, 21 Fla. 431, 440; Bailey v. Kalamazoo Pub. Co., 40 Mich. 251, 255-256; cf. Pelton v. Ward, 3 Caines 73, 77), and the dictionaries are all to the same effect, offering, with only minor variations in phraseology, definitions such as the one in Webster’s Collegiate Dictionary:

“1. Act or process, esp. the legal process, of indicting; state of being indicted.”

If, as defendants claim, the word permits of a looser, a highly rhetorical, use to signify an accusation by private persons, that sense of the term is so rare, as contrasted with the legal process of indictment, that no reader would so understand or accept it without some qualifying language to indicate that the ordinary meaning was not intended. An example would be a statement that John Doe stands “ indicted in the court of public opinion.” Absent that sort of indication, or something similar, a newspaper’s bald assertion that a person is “ under indictment ” could only be taken as referring to the legal process, whereby prosecution for crime is begun.

Indeed, had there been any doubt in the reader’s mind on that score, it would surely have been dispelled by the remainder of the statement. The item went on to say that plaintiff, ‘ ‘ now under indictment, isn’t waiting for his own legal developments. Meanwhile his lawyers are launching a $,$$$,$$$ defamation suit.” (Emphasis supplied.) The phrase “his own legal developments ”, coming immediately after the reference to his “ indictment,” could only be taken as alluding to further developments consequent upon, and under, the indictment; it gives to the statement the unmistakable flavor of legal process.

There is no doubt, then, that the publication charges plaintiff with having been indicted by a grand jury. That being so, it necessarily follows that the first defense is insufficient. That defense is predicated entirely on the assumption that a jury could accept the broader meaning urged by defendants, for it is not even argued that the allegations therein made, of criminal activity and accusation by private persons, establish the truth of the charge that plaintiff had been indicted by a grand jury. A plea of truth as justification must be as broad as the alleged libel and must establish the truth of the precise charge therein made. (See, e.g., White v. Barry, 288 N. Y. 37, 39; Fleckenstein v. Friedman, 266 N. Y. 19, 23; see, also, Seelman on The Law of Libel and Slander [1933], § 171, p. 146.) It is one thing to say that a person has been accused by his colleagues and, without waiving immunity, has testified before a grand jury to criminal activities, and quite another thing to say that an indictment has been brought against him by a grand jury. (See Jones, Varnum & Co. v. Townsend’s Administratrix, supra, 21 Fla. 431, 440.) The former charge may be a serious blot upon reputation, but the latter says, in a practical and amoral sense, much more, for it announces that an actual criminal prosecution has been brought against Mm, that he must stand trial and may be found guilty and sentenced to a prison term.

Defendants contend, however, that, even though the complete defense be held insufficient, its allegations may properly be repeated in their entirety in the second numbered defense, as a partial defense in mitigation of damages, when coupled with the further allegations that “ the facts ” were widely known, that plaintiff’s general reputation was bad, and that all such matters were known to defendants, relied upon by them and made them believe in the truth of the item in question. Before proceeding to a consideration of that defense, we examine some of the relevant principles governing damages in libel actions, as well as their mitigation or reduction by the proof of acts which fall short of those charged in the libel.

The damages recoverable for a defamation consist of two items: (1) compensatory (or actual) damages, of which a major component is the damage to plaintiff’s reputation resulting from the libel and (2) punitive (or exemplary) damages, recoverable only if the publication is shown to have been made with “ actual malice ” — a term taken to include “ a libel, recklessly or carelessly published, as well as one induced by personal ill-will ”. (Smith v. Matthews, 152 N. Y. 152, 158; see, also, Crane v. Bennett, 177 N. Y. 106, 115-116; Warner v. Press Pub. Co., 132 N. Y. 181, 185.) Well settled is the basic rule that the amount of plaintiff’s recovery may be reduced by proof of facts “ tending but failing to prove the truth ” of the libel’s charge. (Fleckenstein v. Friedman, supra, 266 N. Y. 19, 24; see, also, Gressman v. Morning Journal Assn., 197 N. Y. 474; Lanpher v. Clark, 149 N. Y. 472; Mattice v. Wilcox, 147 N. Y. 624, 634-635.) That proof is relevant in mitigation of punitive damages, for it may negative actual malice by showing that defendant, though mistaken, had reasonable grounds for belief in the truth of the charge contained in the publication. (See Mattice v. Wilcox, supra, 147 N. Y. 624, 634; Bergström v. Bidgway Co., 138 App. Div. 178, 181-182; cf. Abell v. Cornwall Ind. Corp., 241 NT. Y. 327,338.) And, turning to compensatory damages, such evidence may serve to reduce them as well (see Fleckenstein v. Friedman, supra, 266 N. Y. 19, 24; Gressman v. Morning Journal Assn.,

items: (1) compensatory (or actual) damages, of which a major component is the damage to plaintiff’s reputation resulting from the libel and (2) punitive (or exemplary) damages, recoverable only if the publication is shown to have been made with “ actual malice ” — a term taken to include “ a libel, recklessly or carelessly published, as well as one induced by personal ill-will ”. (Smith v. Matthews, 152 N. Y. 152, 158; see, also, Crane v. Bennett, 177 N. Y. 106, 115-116; Warner v. Press Pub. Co., 132 N. Y. 181, 185.) Well settled is the basic rule that the amount of plaintiff’s recovery may be reduced by proof of facts “ tending but failing to prove the truth ” of the libel’s charge. (Fleckenstein v. Friedman, supra, 266 N. Y. 19, 24; see, also, Gressman v. Morning Journal Assn., 197 N. Y. 474; Lanpher v. Clark, 149 N. Y. 472; Mattice v. Wilcox, 147 N. Y. 624, 634-635.) That proof is relevant in mitigation of punitive damages, for it may negative actual malice by showing that defendant, though mistaken, had reasonable grounds for belief in the truth of the charge contained in the publication. (See Mattice v. Wilcox, supra, 147 N. Y. 624, 634; Bergström v. Ridgway Co., 138 App. Div. 178, 181-182; cf. Abell v. Cornwall Ind. Corp., 241 N. Y. 327, 338.) And, turning to compensatory damages, such evidence may serve to reduce them as well (see Fleckenstein v. Friedman, supra, 266 N. Y. 19, 24; Gressman v. Morning Journal Assn., supra, 197 N. Y. 474, 480), on the theory that, if the actual facts “ gave some color of verity to the statements contained in the published article, plaintiff would not be entitled to receive the same damages as if his reputation was beyond unfavorable criticism or comment.” (Goodrow v. Malone Telegram, 235 App. Div. 3, 5.) But, of necessity, the facts that go to make up a partial defense in mitigation and reduction must tend to prove the truth of the precise charge made by the publication. (See, e.g., Gressman v. Morning Journal Assn., supra, 197 N. Y. 474; Lanpher v. Clark, supra, 149 N. Y. 472.)

In the case before us, however, the facts alleged are entirely unrelated to the truth of the charge that plaintiff had been indicted; they tend at most to prove that plaintiff had engaged in criminal activity and had been accused of wrong-doing by his fellow firemen. In this respect, the case is not too unlike Levey v. New York Evening Journal (237 App. Div. 255). There, the libel charged that plaintiff had committed a crime and had been arrested by the district attorney’s office. The defense was to the effect that he was being investigated by the Attorney-General, and that, instead of having been arrested, he had appeared voluntarily for examination. These facts, and defendant’s belief in them, the court held insufficient as a partial defense in mitigation or reduction of damages, for they did “ not tend in some appreciable degree towards proving the truth of the charge in the libel.” In the words of the court, “ What defense is it for the defendant to have relied upon information that plaintiff was being investigated merely by the Attorney-General to say that he had in fact been investigated and arrested by the district attorney? ” (237 App. Div., at pp. 257-258.)

The situation might be different had defendants acknowledged that they had charged plaintiff with having been indicted and then proceeded to claim that they believed that to be true because plaintiff had been before the grand jury and had testified ito his commission of crime. In such a case, those facts would tend, perhaps, toward proof of a belief in the charge actually made, but that is not this case. Here, by their very pleading, defendants seek to give a different and broader meaning to the published charge than reason permits. They do not even claim that they believed that plaintiff had been indicted; on the contrary, they declare that they actually knew that he had not been, expressly stating that plaintiff’s failure to waive immunity “ precluded his prosecution ” for the alleged crimes, which fact, they admit, was ‘ ‘ known to * * * [them] prior to the making of the publication ”.

Defendants advance the additional contention that the pleading should be upheld and sustained, even if it does not tend to prove truth, because some of the facts alleged — as to particular acts of misconduct and bad reputation — may, nevertheless, be relevant to negative actual malice or reduce the value of plaintiff’s injured reputation. Those allegations, the argument runs, may be used for that purpose irrespective of the form in which they are pleaded (see Fleckenstein v. Friedman, supra, 266 N. Y. 19, 25; Zirn v. Bradley, 270 App. Div. 829), and reliance is placed upon the principle that a defense should not be stricken for insufficiency if any part is sufficient. (See, e.g., Meyers v. Huschle Bros., 274 App. Div. 80, 83; Klaw v. New York Press Co., 144 App. Div. 501.)

Considerable doubt exists whether any of the matter pleaded is proper, for the rule is clear that, while defendant may offer proof of plaintiff’s bad general reputation prior to the publication, to reduce the value of the injured interest, he may not plead or prove for that purpose ‘ ‘ specific acts, or instances, of plaintiff’s misconduct ” having no connection with the charge of the libel. (Cudlip v. New York Evening Journal Pub. Co., 180 N. Y. 85, 87; see, also, Theodore v. Daily Mirror, 282 N. Y. 345, 347; Abell v. Cornwall Ind. Corp., supra, 241 N. Y. 327, 338; Holmes v. Jones, 147 N. Y. 59, 68; Corning v. Corning, 6 N. Y. 97, 104.) Such specific misconduct, we have seen, may be admitted only if it also tends, but fails, to prove the truth of the libel’s charge. (Cf. Lanpher v. Clark, supra, 149 N. Y. 472; Carpenter v. New York Evening Journal Pub. Co., 96 App. Div. 376, 381; Goodrow v. New York American, 233 App. Div. 37.)

However, regardless of what facts defendants might properly plead and prove, we may not approve the kind of pleading embodied in the second separate defense.

The entire thrust and purport of that defense is to establish defendants’ belief in the truth of a different charge than the one made .by the writing. Of the specific instances of misconduct alleged, which amount almost to a complete history of the Fire Department scandals, a considerable proportion would be inadmissible in evidence, as conclusory, irrelevant or prejudicial. The same is true of the list of newspaper headlines appended to the answer. Some of the items refer to the derelictions of fellow firemen with no suggestion that plaintiff was involved, while others purport to establish his guilt of divers acts on the basis of mere conjecture and rumor. (Cf. Abell v. Cornwall Ind. Corp., supra, 241 N. Y. 327.) These allegations are certainly improper, and it is unthinkable that a defense, otherwise insufficient, should lie saved and upheld by the device of simply adding a recital that plaintiff “ enjoyed ” a bad general reputation.

Of the defense as a whole, therefore, it must be said, as another court said in dealing with the analogous problem posed in a complaint, that, even if some of its allegations are proper, they are “ so inextricably interwoven with that which is insufficient that the complaint in its entirety must be dismissed ”. (Le Page v. Automobile Club of N. Y., 258 App. Div. 981, 982; cf. Sherman v. International Publications, 214 App. Div. 437, 440-442; Burnham v. Hornaday, 223 App. Div. 218, 219.)

We are not here deciding what facts defendants may adduce and prove in reduction of compensatory damages under the general denial, and nothing that we now say is to be taken as precluding defendants from seeking to amend their answer so as to plead properly matters in reduction of compensatory damages or in mitigation of those that are punitive in character. Nor are we suggesting that a partial defense must be pleaded in any particular form or that its purpose must be labeled. (See Fleckenstein v. Friedman, supra, 266 N. Y. 19, 25.) All that we are holding is that the defense, aimed at establishing the truth of a charge different from that made in the publication, cannot stand. And it may not be saved by virtue of the fact that some of the items alleged might be pleaded properly in a different defense or that some of them might be proved at the trial.

In conclusion, the charge that plaintiff is ‘ ‘ now under indictment,” read in context, cannot reasonably convey any meaning other than that he had been indicted by a grand jury. A court, it is fundamental, should never take from a jury doubtful questions of fact, but it is equally basic that a court shirks its duty if it creates an issue, when none exists, solely to foist decision upon a jury. We would he doing just that were we here to deny plaintiff’s motion to strike the separate defenses as insufficient in law.

The order of the Appellate Division should he reversed, with costs in this court and in the Appellate Division, and the matter remitted to Special Term for further proceedings in accordance with this opinion. The first question certified is answered in the affirmative; the second question certified answered in the negative.

Conway, Ch. J., Desmond, Dye, Froessel, Van Voorhis and Burke, JJ., concur.

Order reversed, etc.

      . Proof of bad reputation is, of course, admissible under the general denial. (See, e.g., Fleckenstein v. Friedman, supra, 266 N. Y. 19, 25.)


author: Desmond, J. Van Voorhis, J

text:
    In the Matter of the Claim of Joyce E. Cook, Respondent, against Buffalo General Hospital, Employer, et al., Appellants; Buffalo State Hospital et al., Employers, and State Insurance Fund, Respondent. Workmen’s Compensation Board, Respondent.
    Argued March 8, 1955;
    decided May 26, 1955.

      Henry Redman Butcher, Sr., for appellants.
    I. The award against Buffalo General Hospital should be disallowed and the claim dismissed, inasmuch as no claim was made or filed against the Buffalo General Hospital within the statutory time as provided by section 28 of the Workmen’s Compensation Law. (Matter of Pogue v. Crouse Irving Hosp., 281 App. Div. 931; Matter of Lombardo v. Endicott Johnson Corp., 275 App. Div. 18.) II. An advance payment of compensation within the meaning of section 28 of the Workmen’s Compensation Law was made by the general employer, the Buffalo Children’s Hospital. (Matter of Lord v. Rocky Crest Sanatorium, 274 App. Div. 955, 298 N. Y. 934; Matter of Schwartz v. Kaplan Card & Paper Co., 276 App. Div. 789; Matter of Dennison v. Presbyterian Hosp., 274 App. Div. 956, 298 N. Y. 932.) III. The board has found that the Buffalo Children’s Hospital was the general employer and the Buffalo General Hospital the special employer. Therefore, if the claim was filed within the statutory period, or it is found that an advanced payment of compensation was made within the meaning of section 28 of the Workmen’s Compensation Law, and that such advance payment is binding on the special employer as a matter of law, then both institutions should be equally charged with the award as a matter of law. (Matter of McDonald v. City of New York, 265 App. Div. 1026; Matter of Commissioner of Taxation & Finance of State of N. Y. v. Willard Parker Hosp., 256 App. Div. 1018; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 278 App. Div. 867, 304 N. Y. 65; Matter of Palmer v. Redman, 281 App. Div. 723; Matter of Peploe v. Burns Bros., 281 App. Div. 134.)

      Victor Fiddler, Bernard Katsen, William H. Stieglitz and George J. Hayes for State Insurance Fund, respondent.
    I. The undisputed evidence given by the claimant herself is that there was no exposure to tuberculosis during her affiliation with respondent hospital; her only exposure to the disease was during her affiliation with appellant hospital; thus there could have been no contraction of the disease at respondent hospital. II. Filing a claim and notice against the general employer is a claim filing and notice to the special employer. (Matter of Celli v. Central Islip State Hosp., 276 App. Div. 802.) III. An award may be made against the general employer and special employer, either individually, separately or jointly, and the award here against the special employer alone is sustained by the undisputed proof that claimant was exposed to the disease she contracted solely in the employ of the special employer. (Matter of Nichols v. Central Islip State Hosp., 262 App. Div. 984; Matter of Commissioner of Taxation & Finance v. Strandberg & Son, 275 App. Div. 1011; Standard Oil Co. v. Anderson, 212 U. S. 215; Higgins v. Western Union Tel. Co., 156 N. Y. 75; Matter of Schweitzer v. Thompson & Norris Co., 229 N. Y. 97; Matter of De Noyer v. Cavanaugh, 221 N. Y. 273; Matter of Hessinger v. City of New York, 264 App. Div. 802; Matter of Pogue v. Crouse Irving Hosp., 281 App. Div. 931; Matter of McSweeney v. Hammerlund Mfg. Co., 275 App. Div. 447; Matter of Vilord v. Village of Suffern, 278 App. Div. 1030.)
   Desmond, J.

Claimant, a nurse, was, by the award here appealed from, allowed workmen’s compensation because of disability from pulmonary tuberculosis contracted at Buffalo General Hospital while claimant was in training there, in 1945 and 1946, as a student nurse. Claimant, in 1943, had, as a student, entered Children’s Hospital School of Nursing, another Buffalo institution, but in 1945 she was sent, for part of her training, to Buffalo General Hospital. It was not until after her return to, and later graduation from, Children’s Hospital that the disease and disablement were discovered. The board properly found that the disablement occurred at Buffalo General Hospital, that the disease w&§ contracted by reason of contact with a tubercular patient there, that it was due to the nature of her employment there, and that, at that time, Children’s Hospital was her “general employer” and Buffalo General Hospital was her * ‘ special employer ’ ’. The board made its award against the special employer only. Although claimant had not filed a claim against that special employer within the two-year period fixed by section 28 of the Workmen’s Compensation Law, the general employer (Children’s Hospital) had, within that time, made an “ advance payment ” of compensation to claimant in the form of medical treatment and hospital care. The board held that “ such advance payment is binding on the Buffalo General Hospital, the special employer, as well.”

It is not disputed that the furnishing’ of medical care to an injured employee is, ordinarily, such an ‘ ‘ advance payment ’ ’ of compensation as makes unnecessary the filing by him of a formal claim (Matter of Gallahan v. Papec Mach. Co., 263 App. Div. 918, affd. 288 N. Y. 726). But appellants here, pointing out that claimant’s hospital care after she became.disabled was provided not by appellant Buffalo General Hospital, but by Children’s Hospital, insist that it may not serve as a substitute for the filing of a claim against that appellant. We do not agree. In Workmen’s Compensation Law, as at common law, ‘ ‘ The fact that a workman has a general and a special employer is not inconsistent with the relation of employer and employee between both of them and himself ” (Matter of De Noyer v. Cavanaugh, 221 N. Y. 273, 275). Both together are his employer, and we know of no reason why notice to one, or claim against one, or advance payment by one, should not stop running the section 28 time limitation as to both (see Matter of Celli v. Central Islip State Hosp., 276 App. Div. 802). Certainly, the language of section 28, “ No case in which an advance payment is made to an employee * * * shall be barred by the failure of the employee * * * to file a claim ”, is broad enough to make effective for the purpose an “ advance payment ” by either employer, or by both.

Appellants make much of the “ inconsistency ” between this decision and the decision in Matter of Pogue v. Crouse Irving Hosp. (281 App. Div. 931, motion for leave to appeal denied 306 N. Y. 979). In each instance, a student nurse contracted tuberculosis during a special employment, and each was given hospital care by the general employer. However, claimant Pogue’s award was against the general employer alone, while this present claimant was awarded compensation against the special employer alone. But such an inconsistency calls for no explanation from us, and certainly does not justify a reversal. It is as well settled as anything in the law can be that workmen’s compensation may be ordered paid by the general employer or the special employer, or both (Matter of De Noyer v. Cavanaugh, 221 N. Y. 273, 276, supra). Having announced that the board has power to make the award against either or both, the courts cannot complain if the board exercises the power, case by case, as it sees fit.

The order should be affirmed, with costs.

Van Voorhis, J

(dissenting). The decision of this appeal depends upon the application of the two-year Statute of Linn tations imposed by section 28 of the Workmen’s Compensation Law. Claimant contracted an occupational disease while in the service of her special employer. The fact that a workman has a general and a special employer is not inconsistent with the relationship of employer and employee between both of them and himself (Matter of De Noyer v. Cavanaugh, 221 N. Y. 273; Matter of Dennison v. Peckham Road Corp., 295 N. Y. 457). Depending upon the facts of the case, the employee may recover against either or both the general and special employer. It is assumed that in this case an award might have been made in favor of the claimant against either or both of these employers. An award was made by the Workmen’s Compensation Board against claimant’s special employer but not against her general employer. The award against the special employer would be upheld, under the facts of this case, if the claim against the special employer had been filed within the time limited by section 28. That was not done. More than two years elapsed without the filing of any claim after the termination of claimant’s employment by the special employer and the contraction of her occupational disease.

The Appellate Division has held that the Statute of Limitations has been tolled against claimant’s special employer for the reason that an advance payment of workmen’s compensation was made to her by her general employer. That advance payment, made in this instance by furnishing hospital and medical care, has the effect of extending the Statute of Limitations prescribed by section 28 against the employer who made the payment (Matter of Pogue v. Crouse Irving Hosp., 281 App. Div. 931, motion for leave to appeal denied 306 N. Y. 979), but it has no such effect against an employer by whom no payment has been made.

Under section 59 of the Civil Practice Act, a payment upon an obligation results in extending the limitation period, in the case of persons jointly or severally liable, but the Statute of Limitations is extended only against the party making the payment. Nothing in the statutes nor in reason makes any distinction in this respect between section 59 of the Civil Practice Act and section 28 of the Workmen’s Compensation Law. In this instance, the payment was made by the general employer, yet the statute was tolled against the special employer. There is not and is not claimed to be any relationship of principal" and agent between parties so situated. The general employer acted for itself, not in behalf of the special employer.

In Peoples Trust Co. v. O’Neil (273 N. Y. 312, 315-316) this court said:

It is well settled that a payment in case of a joint liability by one does not extend the statute as to others jointly liable. (Hoover v. Hubbard, 202 N. Y. 289; State Bank of Binghamton v. Mangan, 240 App. Div. 327; affd., 269 N. Y. 598; 1 Williston on The Law of Contracts, § 191.)

The same rule applies as to a payment by a principal debtor. It does not have the effect of extending the statute as against a surety. (1 Williston on The Law of Contracts, § 193; Ulster County Sav. Institution v. Deyo, 116 App. Div. 1; affd., 191 N. Y. 505.)

‘' Neither can a payment by a surety extend the statute against the principal. (1 Williston on The Law of Contracts, § 193; Harper v. Fairley, 53 N. Y. 442.)

“ Professor Whiteside in his notes on the Restatement of the Law of Contracts says that section 127 states the New York rule, citing Shoemaker v. Benedict (11 N. Y. 176) and Hoover v. Hubbard (202 N. Y. 289). * * *

‘ ‘ An action on a contract brought after six years from its due date must be brought on the new promise, express or implied, which operates to take the claim out of the statute. The new promise must be made by the one sought to be bound or his agent, duly authorized or his act thereafter ratified.”

The record is barren of any evidence that the special employer, appellant Buffalo General Hospital, was made aware of the fact that a claim was to be made against it, or that it was apprised of the nature of such claim or that it did anything tending to cause claimant to delay making a claim, or to authorize claimant’s general employer to act for it in making the advance payment of compensation. It is irrelevant whether appellant sustained prejudice on account of the delay in filing this claim. Prejudice does not enter into whether a claim is barred by the Statute of Limitations.

The order of the Appellate Division affirming the award and decision of the Workmen’s Compensation Board against appellant Buffalo G-eneral Hospital, the special employer, should be reversed and the claim against appellants should be dismissed.

Conwat, Ch. J., Dye and Fuld, JJ., concur with Desmond, J.; Van Voorhis, J., dissents in an opinion in which Froessel and Burke, JJ., concur.

Order affirmed.