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    In the Matter of the City of New York, Appellant, Relative to the Closing and Discontinuance of a Portion of 12th Avenue from West 55th Street to West 57th Street, in the Borough of Manhattan. Edgar T. Appleby et al., Respondents. In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Widening of East River Drive from East 100th Street to East 102nd Street, etc., in the Borough of Manhattan. George W. Cornell, as Administrator C. T. A. of the Estate of William H. Schmohl, Deceased, as Assignee, Respondent.
    Reargued May 22, 1946;
    decided July 23, 1946.

      Ignatius M. Wilkinson, Corporation Counsel (Louis M. Weintraub, Julius Isaacs, Leo Brown and Samuel K. Handel of counsel), for appellant in first above-entitled proceeding.
    I. Damage parcel No. 4, granted by the city to respondents’ predecessors in 1889, was land under water outshore of the high water line of the Hudson River. As such, it was inalienable and the grant purporting to convey it was null and void. Since the parcel continued in the city’s ownership, the city is entitled to the award herein, and not the respondents. (Sage v. Mayor, 154 N. Y. 61; Williams v. Mayor, 105 N. Y. 419; City of New York v. Wilson & Co., 278 N. Y. 86; Matter of City of New York [Piers Old Nos. 8-11], 228 N. Y. 140; American Ice Co. v. City of New York, 217 N. Y. 402; Langdon v. Mayor, 133 N. Y. 628; Kingsland v. Mayor, 110 N. Y. 569; Burbank v. Fay, 65 N. Y. 57; People ex rel. Blakslee v. Commissioners, 135 N. Y. 447; Hinckley v. State, 234 N. Y. 309; Harway Improvement Co. v. Partridge, 203 App. Div. 174, 236 N. Y. 563; Consolidated Ice Co. v. Mayor, 166 N. Y. 92; Wells v. Johnston, 171 N. Y. 324; People v. Santa Clara Lumber Co., 213 N. Y. 61; Donovan v. City of New York, 33 N. Y. 291; Lyddy v. Long Island City, 104 N. Y. 218; Knickerbocker Ice Co. v. 42d St. R. R. Co., 176 N. Y. 408.) II. By Laws of 1871, chapter 574, all city-owned land outshore of the high water line was made inalienable. The trial court, therefore, erred in holding that Laws of 1882, chapter 410, section 729, limited this broad prohibition against alienation by permitting alienation of land under water inshore of the exterior line of the city. Damage parcel No. 4 was inalienable since it was land under water outshore of the high water line. The Act of 1882 (ch. 410) did not authorize the city to alienate land under water. (City of New York v. Wilson & Co., 278 N. Y. 86; Matter of City of New York [Piers Old Nos. 8-11], 228 N. Y. 140; People ex rel. B. P. Comm. v. Common Council, 229 N. Y. 1; Grill v. City of New York, 282 N. Y. 471; Pratt Institute v. City of New York, 183 N. Y. 151; Heckmann v. Pinkney, 81 N. Y. 211; City of Buffalo v. Lewis, 192 N. Y. 193;
      United States v. Tynen, 11 Wall. 88; Ely v. Holton, 15 N. Y. 595; Matter of Prime, 136 N. Y. 347; Contractors’ Supply Co. v. City of New York, 153 App. Div. 60; City of New York v. D. L. & W. R. R. Co., 206 App. Div. 228, 237 N. Y. 398; Matter of City of New York [Triborough Bridge], 159 Misc. 617, 257 App. Div. 940, 257 App. Div. 267.) III. The high water line, and not the exterior line, is the boundary of inalienablity. (City of New York v. Wilson & Co., 278 N. Y. 86; City of New York v. D. L, & W. R. R. Co., 237 N. Y. 398; Matter of City of New York [Piers Old Nos. 8-11], 228 N. Y. 140; Headley v. City of Rochester, 272 N. Y. 197; Matter of City of New York [Saratoga Ave.], 226 N. Y. 128; Knickerbocker Ice Co. v. 42d St. R. R. Co., 176 N. Y. 408.) IV. Title to Damage parcel No. 4 was not adjudicated or 'determined in the 1933 proceeding and the final decree, is, therefore, not res judicata in this proceeding on the issue of title. (Matter of City of New York [12th Ave.], 90 N. Y. L. J. 2333; Merriman v. City of New York, 227 N. Y. 279; Brooklyn, Queens County & Suburban R. R. Co. v. Bird, 78 Misc. 683, 156 App. Div. 887; McAneny v. N. Y. C. R. R. Co., 238 N. Y. 122; Karameros v. Luther, 279 N. Y. 87; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Cook v. Conners, 215 N. Y. 175; Matter of City of New York [Jamaica Bay-Hanburg], 250 App. Div. 124, 275 N. Y. 458; Matter of City of New York [Jamaica Bay], 258 App. Div. 191, 284 N. Y. 677; Jarvis v. Lynch, 157 N. Y. 445; Brooklyn Queens Co. & S. R. R. Co. v. Bird, 78 Misc. 683, 156 App. Div. 887; City of New York v. Wilson & Co., 278 N. Y. 86; Matter of City of New York [Dickens Ave.], 238 App. Div. 850, 262 N. Y. 699.)

      Edward R. Finch, Thomas F. Powers and Banton Moore for respondents in first proceeding.
    I. The premises in suit consisted of upland as recognized both by the Legislature in statutory enactment (L. 1837, ch. 182), and by the city through its administrative acts in carrying out the purposes of the statute. II. It is res judicata that the city has no claim to the premises in suit. (Stoeve v. Schinasi, 236 App. Div. 102; Herder v. Clifford, 252 N. Y. 141; Woodford v. Rasbach, 6 N. Y. Civ. Pro. Rep. 315; Blair v. Bartlett, 75 N. Y. 150; Reich v. Cochran. 151 N. Y. 122.) III. Chapter 574 of the Laws of 1871 is not applicable to the upland here in suit but only relates to wharves, piers, docks, bulkheads, slips and basins and the land beneath the same. (City of New York v. D., L. & W. R. R. Co., 237 N. Y. 398.) TV. Over thirty years prior to the 1871 statute (L. 1871, ch. 574) the land granted to Appleby had ceased to be a part of the water front and had become upland through the interposition of 12th Avenue and Exterior Street. The actions of the State and city in treating this as upland furnishes ample evidence in support of the findings of the trial court and the affirmance by the Appellate Division. (Williams v. Mayor, 105 N. Y. 419; City of New York v. Third Avenue Ry. Co., 294 N. Y. 238.) V. Chapter 574 of the Laws of 1871 related solely to the wharves and piers and the land under water constituting the water front. At the time of the enactment of chapter 574 of the Laws of 1871, the land conveyed to Appleby did not face on the water front but on 12th Avenue which effectually cut it off from the water front. It was not water front property but upland property over fifty years before the deed to Appleby and over thirty years before the enactment of chapter 574 of the Laws of 1871. (Matter of City of New York [Piers Old Nos. 8-11], 228 N. Y. 140; Williams v. Mayor, 105 N. Y. 419.)

      Joseph V. McKee and C. Elmer Spedick for Title Guarantee and Trust Company, amicus curies, in support of respondents’ position in first proceeding.
    I. The order appealed from should be affirmed. (Matter of City of Niagara Falls v. P. S. Comm., 229 N. Y. 322; City of New York v. Wilson & Co., 278 N. Y. 86; City of New York v. Third Avenue Ry. Co., 294 N. Y. 238.) II. Appellant’s assertion that by chapter 574 of the Laws of 1871, all city-owned land outshore of the high water line was made inalienable, is without foundation in fact or law. (Colonial City T. Co. v. Kingston R. R. Co., 154 N. Y. 483.) III. In 1871 the land conveyed to Appleby was not waterfront property in use or reserved for public purposes; it was not affected by the provisions or limitations of the 1871 statute.

      Ignatius M. Wilkinson, Corporation Cemnsel (Louis M. Weintraub, Julms Isaacs and Leo Brown of counsel), for appellant in second above-entitled proceeding;
    I. Damage parcel 27o. 17, granted by the city to respondent’s predecessors in 1893, was land outshore of the high water line of the East Eiver. As such it was inalienable and the grant purporting to convey it was null and void. Since the parcel continued in the city’s ownership, the city is entitled to the award therefor, and not respondent. (Sage v. Mayor, 154 N. Y. 61; Williams v. Mayor, 105 N. Y. 419; City of New York v. Wilson & Co., 278 N. Y. 86; Matter of City of New York [Piers Old Nos. 8-11], 228 N. Y. 140; American Ice Co. v. City of New York, 217 N. Y. 402; Langdon v. Mayor, 133 N. Y. 628; Kingsland v. Mayor, 110 N. Y. 569; Burbank v. Fay, 65 N. Y. 57; People ex rel. Blakslee v. Commissioners, 135 N. Y. 447; Hinkley v. State, 234 N. Y. 309; Harway Improvement Co. v.. Partridge, 203 App. Div. 174, 236 N. Y. 563; Wells v. Johnston, 171 N. Y. 324; People v. Santa Clara Lumber Co., 213 N. Y. 61; Donovan v. City of New York, 33 N. Y. 291; Lyddy v. Long Island City, 104 N. Y. 218.) II. By Laws of 1871, chapter 574, all city-owned land outshore of the high water line was made inalienable. The trial court therefore erred in holding that Laws of 1882, chapter 410, section 729, limited this broad prohibition against alienation by permitting alienation of land under water inshore of the exterior line of the city. Damage parcel No. 17 was inalienable since it was land outshore of the high water line. The Act of 1882 (ch. 410) did not authorize the city to alienate land under water. (People ex rel. B. P. Comm. v. Common Council, 229 N. Y. 1; Chase v. United States, 256 U. S. 1; Pratt Institute v. City of New York, 183 N. Y. 151; United States v. Tynen, 11 Wall. 88; Ely v. Eolton, 15 N. Y. 595; Contractors’ Supply Co. v. City of New York, 153 App. Div. 60; City of New York v. D., L. & W. R. R. Co., 206 App. Div. 228, 237 N. Y. 398; Matter of City of New York [Triborough Bridge], 159 Misc. 617, 257 App. Div. 940, 257 App. Div. 267; Matter of City of New York [Piers Old Nos. 8-11], 228 N. Y. 152.) III'. The high water line, a,nd not the' exterior line, is the boundary of alienability. (Sage v. Mayor, 154 N. Y. 61; Peterson v. City of New York, 260 N. Y. 156; Vilias v. Featherson, 94 App. Div. 259; Matter of City of New York [Triborough Bridge], 159 Misc. 617.)

      C. Elmer Spedick for respondent in the second above-entitled proceeding.
    The sale involved herein was legal and claimant’s title is - good. (American Ice Co. v. City of New York, 217 N. Y. 402; Matter of the City of New York, 217 N. Y. 1; Grimmer v. Tenement House Department, 205 N. Y. 549; Matter of City of New York [Piers Old Nos. 8-11], 228 N. Y. 140; Matter

      of City of New York [Willard Parker Hospital], 217 N. Y. 1; Matter of City of Niagara Falls v. P. S. Comm., 229 N. Y. 322; Crane v. Bennett, 177 N. Y. 106.)
   Conway, J.

Questions affecting the titles to two pieces of property are presented in these two proceedings and, since the same rules of law are applicable, they will be treated together. In the first, the closing proceeding (12th Avenue), the parcel affected is part of one which extended from the original line of high water, as shown on the Randel Map of 1820, westerly to the easterly line of 12th Avenue, as extended by act of the Legislature (L. 1837, ch. 182) and as laid out on maps filed by the city. The grant was made by the city to the predecessor of claimants on January 14,1889. At that time, approximately half of the land granted had already been-filled in. The other half and the proposed exterior street, 12th Avenue, were still under water. The grant was to the upland owner and the filling in had been projected and supervised by the Department of Docks of the city. A plan providing for the filling in of the land under water up to the easterly line of 12th Avenue had been filed by the Department of Docks and approved by the commissioners of the sinking fund of the city on April 27, 1871. The easterly line of 12th Avenue was within the exterior bulkhead line established at that point on the Hudson River by Laws of 1857, chapter 763.

The other parcel, in the opening proceeding (East River Drive), was deeded by the city on April 6, 1893, to the upland owner, who was the predecessor of claimants. It had concededly been completely filled in under the supervision of the Dock Department prior to the grant. It also was outshore of the original Randel line of highwater but inshore of the 1857 line, to which reference has been made.

It is the contention of the city that, at the times of the grants in question, there was no power in it to alienate any land, whether under water or filled in, which was situated outshore of the Randel highwater line, by reason of Laws of 1871, chapter 574, and Laws of 1873, chapter 335; that those statutes “ impliedly repealed ” the provision in the 1858 statute (L. 1858, ch. 360) that no grants were to be made of land under water beyond the exterior line of the city as fixed by Laws of 1857, chapter 763, and that the Consolidation Act (L. 1882, eh. 410) although it reenacted the pertinent provisions of all three statutes, did not save the 1858 provision from such “ implied repeal.”

Grants of land under water inshore of the exterior city lines were clearly valid before 1871 except for a period between 1855 and 1858, when they were expressly prohibited by statute. See Laws of 1855, chapter 121, section 2, repealed by Laws of 1858, chapter 360; Matter of City of New York (Willard Parker Hospital), (217 N. Y. 1, 13). For a grant of land out-shore of the highwater line made prior to 1871, which was held valid, see Appleby v. City of New York (235 N. Y. 351) and Matter of Appleby v. Delaney (235 N. Y. 364, 366).

In 1855 the Legislature initiated a program for controlling the development of the water front and harbor of the city. (Matter of City of New York [Willard Parker Hospital], supra.) A harbor commission was appointed for the “ preservation of the harbor of New York from encroachments, and to prevent obstructions to the necessary navigation thereof.” (L. 1855, ch. 121.) The commission was to make necessary surveys of the harbor and report to the Legislature, recommending the establishment of such exterior lines * * * beyond which, no erection or permanent obstruction of any kind should be permitted ” (§ 1). (Emphasis supplied.) No grants of land under water were to be made until further direction of the Legislature (§2). The harbor commissioners having made their report, the Legislature adopted a bulkhead line or line of solid filling as recommended, except that it changed the line in certain areas (L. 1857, ch. 763, passed April 17, 1857). By Laws of 1858, chapter 360, the prohibition in the 1855 act against grants of land under water was repealed, • and it was provided that: “ No grants are to be made beyond the exterior lines of the city, as fixed by an act of the legislature, passed April seventeenth, eighteen hundred and fifty-seven, entitled ‘ An act to establish bulkhead and pier lines for the port of New York ’ ”.

That provision concededly was never expressly repealed but, on the contrary was in substance re-enacted, as we have seen (supra), in the Consolidation Act of 1882 (L. 1882, ch. 410, § 729), which prohibited grants of land under water “ beyond the exterior lines of the city, as fixed by an act of the legislature passed April seventeenth, eighteen hundred and fifty-seven * * * as amended by subsequent acts # * «99

It seems to us that it is a compelling, if not a necessary, inference that when the Legislature declared that “ no grants are to be made beyond the exterior lines of the city,” it intended that grants inshore of the exterior lines should be valid, and that the factor in determining the power of the city to make grants of land under water was to be the legislatively fixed exterior lines rather than the original Randel highwater line of 1820. (Williams v. Mayor, 105 N. Y. 419, 430-432; Matter of City of New York [Willard Parker Hospital], 217 N. Y. 1, 13; City of New York v. D., L. & W. R. R. Co., 237 N. Y. 398, 405-406.)

Such an inference, it is true, might yield to an express “ sweeping declaration ” of inalienability of the sort embodied in section 71 of the Greater New York Charter of 1897. That section — which was enacted after the grants here in question had been made — declared flatly that the “ rights of the city in and to its water front, ferries, wharf property, land under water, public landings, wharves, docks, streets, avenues, parks, and all other public places are hereby declared to be inalienable.” But, certainly, we find no such clear statutory declaration — or anything similar to it — applicable here.

Nevertheless, it is urged upon us that authorities in this court, particularly City of New York v. Wilson & Co. (278 N. Y. 86) and Matter of City of New York (Piers Old Nos. 8-11) (228 N. Y. 140) have so construed the statutes of 1871 and 1873 as to read into them an implied restraint on alienation of any land originally under water outshore of the Randel highwater line.

The statute of 1871 (ch. .574) did not expressly prohibit grants of any of the city’s water fronts. That statute (§6 [amdg. § 99, subd. 2, of the New York City Government Reorganization Act, 1870]) merely vested in the Department of Docks, created in 1870 “ exclusive charge and control ” subject to supervision by the sinking fund commissioners “ of all the wharf property belonging to the corporation of the city of New York, including all the wharves, piers, bulkheads and structures thereon, and waters adjacent thereto, and all the slips, basins, docks, water-fronts, land under water, and structures thereon and the appurtenances, easements, uses, reversions and rights belonging thereto, which are now owned or possessed by the said corporation, or to which said corporation is or may become entitled, or which said corporation may acquire under the provisions hereof, or otherwise; ” and also the exclusive government and regulation ” of all wharves, etc., not owned by the city. Section 6 (amdg. § 99, supra, subd. 12) cited by the city, defined the terms property ” and wharf property ”, whenever used in the act, “ to mean not only all wharves, piers, docks, bulkheads, slips, and basins, but the land beneath the same, and all rights, privileges and easements thereto.” (Emphasis supplied.) That statute, therefore, defined the property belonging to the city of which the Department of Docks was to have “ exclusive charge and control.” The 1873 statute (ch. 335) repealed practically all of the 1871 statute, but saved section 6. It also limited the power of the commissioners of the sinking fund to sell “ any city property ” so that thereafter they might not sell “ wharves and piers.” (L. 1873, ch. 335, § 102). The parcels herein were neither wharves nor piers. Quite evidently, the definitions of the properties of which the Department' of Docks was to have “ exclusive charge and control ” under the 1871 statute may not be read into the 1873 statute so as to limit still further the powers of the sinking fund commissioners to sell city lands as declared in section 102 thereof. Thus the 1871 statute effected no repeal of the 1858 statute. It was concerned only with the city’s wharf property (Matter of City of New York [Piers Old, Nos. 8-11] supra; Langdon v. Mayor, 133 N. Y. 628; Kingsland v. Mayor, 110 N. Y. 569). It neither made mention of any high-water line nor prohibited the grant of any land under water. The 1873 statute prohibited the selling of wharves and piers. The property here involved was inshore of the exterior lines fixed by the 1857 statute — the city’s water front — and was within the power of the city to sell.

Matter of City of New York (Piers Old Nos.'8-11) (supra), involved a claim to title by adverse possession commenced .after 1873, to certain piers and a portion óf a bulkhead. The property involved clearly fell within the express limitation of the statute of 1873 on the alienability of “ wharves and piers ” and it was accordingly unnecessary for the court to determine whether any water front property other than wharves and piers ” was made inalienable by the legislation of 1871 and 1873. Judge Chase’s discussion in that case as to “ the intention of the legislature to prohibit the alienation of all water front property owned by the city ” (228 N. Y. at p. 151), was probably in answer to the contention of claimants’ counsel that the exception concerning wharves and piers ” was a restriction only on the power of the commissioners of the sinking fund, rather than a general declaration of inalienability of such property or a restraint on the power of sale of other city agencies, such as the board of aldermen. Judge Chase thus observed that “ a power of sale in the board of aldermen ” would contravene the legislative purpose (228 N. Y. at p. 151). (Emphasis supplied.) Judge Chase did not in terms state that the statute of 1871 was properly interpretable as imposing an implied restraint on alienation of all of the city’s water front property. His analysis of the legislative purpose may have been only in aid of his interpretation of the scope of the express restraint on alienation of wharves and piers imposed by the statute of 1873. It is not clear that he considered specifically the problem o.f alienability of water front property other than wharves or piers, or the bearing thereon of the statute of 1858 heretofore mentioned. At any rate, the parcels involved here were not water front property. In the opinion of Judge Finch, in City of New York v. Wilson & Co. (supra) it was recognized that it would be possible to confine the Piers Old Nos. 8-11 case to the question of whether wharves and piers, rather than land under water, were inalienable. The construction of the statutes urged by the city would run counter to the practical construction of those statutes by the public officers charged with duties and obligations under them. Numerous grants of land under water, such as those involved here, have been made by the city subsequent to 1873. That effect should be given by courts to such a practical construction was pointed out in Matter of City of New York (Willard Parker Hospital), (supra, 217 N. Y. 1, 12) which involved the determination of the bulkhead line under Laws of 1857, chapter 763.

Moreover, the validity of the grants made in these cases is clear, even if we assume that the statutes of 1871 and 1873 did by implication prohibit the alienation of ‘ ‘ all water front property owned by the city.”

Judge Chase, in his opinion in Matter of City of New York (Piers Old Nos. 8-11), (supra), regarded “ the intention of the legislature to prohibit the alienation of all water front property owned by the city ” as “ included in its purpose to authorize and empower the city to obtain and continue to hold complete control of its water front as provided by the statutes.” He stated that “ a power of sale in the board of aldermen is not only not essential to the accomplishment of the purpose of the legislature and the work of the board of the department of docks but would be antagonistic to and possibly destructive of its work and purpose as defined by the statutes.” (228 N. Y. at p. 151.)

As pointed out heretofore, the 1871 statute vested in the department of docks “ exclusive charge and control ”, subject to specified supervision by the commissioners of the sinking fund, “ of all the wharf property belonging to the corporation of the city of New York, including * * * land under water * * *.” (L. 1871, ch. 574, § 6 [amdg. § 99, supra, subd. 2].)

By section 6 (amdg. § 99, supra, subd. 3) it was provided that the board of the Department of Docks should determine upon plans for the water front to be submitted to the commissioners of the sinking fund, and that such plans, when adopted by the commissioners of the sinking fund, “ shall be * * * the sole plan according to which any wharf, pier, bulkhead, basin, dock, or slip * * * shall thereafter be laid out or constructed * * * and be the sole plan and authority for solid filling in the waters surrounding said city and for extending piers into said waters and erecting bulkheads around said city; and all other provisions of law regulating solid filling and pier and bulkhead lines in said waters are to be deemed to be repealed upon the filing of said plan, if said plan be inconsistent with such provisions of law.” (Emphasis supplied.)

In the instant cases, plans duly formulated by the Department of Docks and approved by the commissioners of the sinking fund for improvement and development of the water front in the localities in question provided for the filling in of specified areas of land under water, including the parcels here involved, and the locating of the water front beyond such land under water and beyond marginal streets laid out on the plans. In the street opening proceeding (East River Drive), the land granted had been completely filled in at the time of the grant under the supervision of the Department of Docks; in the street closing case (12th Avenue), approximately half of the land granted had been thus filled in at the time of the grant.

The filling in and grant of such land under water was clearly not antagonistic to and possibly destructive of ” the work and purpose of the Department of Docks. The filling in was done in pursuance of “ authority for solid filling ” granted by plans formulated by the Department of Docks in accordance with the statute, and in effectuation of such plans. By the adoption of such plans, the Department of Docks, the agency vested by the statute mth the exclusive charge and control ” of the city’s water front property, duly determined that the land under water was not needed for water front purposes and should be converted to upland. It would unduly extend any implied restraint on alienation of water front property beyond the assumed necessities of the statutory objectives, to apply it to land which was thus removed from the category of water front property in the manner prescribed by the Legislature. The land here involved had thus lost its character as water front property long before any grant by the city. (See: 3 McQuillin, Municipal Corporations [2d ed. 1943], §§ 1243, 1242, and cases there cited.)

Nor is it material that in the 12th Avenue case the filling in had not been completed at the time of the grant to claimants’ predecessor. The solid filling having been authorized by the Department of Docks pursuant to the statute, the legislative purposes would not be contravened by the fact that the filling was done even by the city’s grantee rather than by the city itself. Great cities have been built up by grants of land under water. The city of New York has been similarly developed by extending it over submerged lands. The promotion of the commercial prosperity of the port has been one purpose of such grants.” (See: Appleby v. City of New York, 235 N. Y. 351, 362.)

On the other hand, in the Wilson■ case the claimant’s predecessors had applied for a grant of the land in question and had been refused; the claimant itself had sought permission to erect a bulkhead in front of its premises and that, too, had been refused. In brief, there was no official recognition in the Wilson case that the land was not, or would not be, required in the future development of the harbor; there was no official act which separated that parcel from the water front or deprived it of its status as water front property. What was there done was done by the upland owners in derogation of the city’s rights, without permission from the dock department or any other authorized agency.

Moreover, the rule that “ land originally under water is treated as land under water even after it is filled ” is not an inflexible one and was not stated to be such. (City of New York v. Wilson & Co., 278 N. Y. 86, 97.) The cases cited generally in support of that statement are decisions to the effect that an upland owner — as in the Wilson case — cannot acquire title to land under water owned by the State merely by filling it in without a grant or authorization from the State (see cases cited in City of New York v. Wilson & Co., supra, at p. 97) and in Hinhley v. State of New York (234 N. Y. 309, 319), or that the riparian rights, as distinguished from ownership, of an upland owner as regards adjacent land under water may continue even after the solid filling in of such land under water (cf. Tiffany v. Town of Oyster Bay, 234 N. Y. 15; City of New York v. Third Ave. Ry. Co., 294 N. Y. 238). To that extent, and for sound reason, the act of filling in is denied operative effect. But those decisions do not establish that land originally under water necessarily retains its character as such for all time and for all purposes. It has thus been recognized that land under water may lose its character of foreshore ” at least for some purposes, with consequent changes in rights and legal relations, where the filling in is pursuant to permission or grant. (Cf. Tiffany v. Town of Oyster Bay, supra, at p. 20; Williams v. Mayor, supra; Appleby v. City of New York, supra, at pp. 361, 362.)

While the views expressed may render unnecessary consideration of respondent’s claim of res judicata in the 12th Avenue case, we treat it briefly. The question of title is not resolved in claimants ’ favor by an award made to claimants ’ predecessors in a 1933 street opening proceeding for a different parcel derived from the same source as the parcel in question here. Since the parcels involved in the two proceedings are not the same, and the question of title was not actually litigated in the earlier proceeding, the claim of res judicata• can in no event he sustained. (Matter of City of New York [Jamaica Bay], 250 App. Div. 124, affd. 275 N. Y. 458; see Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304, 306, 307; Restatement of Judgments, § 68, subd. (2), and comment c., p. 299.)

The orders should be affirmed, with costs.

Desmond, J.

(dissenting).' In 1920 (Matter of City of New York [Piers Old Nos. 8-11], 228 N. Y. 140, 146) and again in 1938 (City of New York v. Wilson & Co., 278 N. Y. 86, 97-99) this court, elaborately and at length, construed the acts of 1871 and 1873 which in the present case are relied upon by the appellant city as rendering void the purported grants to claimants’ predecessors. In each of those two cited cases this court, in plainest language, said that the 1871 and 1873 statutes made all water front' property owned by the city ” absolutely inalienable (see 228 N. Y. at pp. 150, 151, and 278 N. Y. at p. 99). In those two cases there were cited earlier decisions of this court which had construed the same 1871 and 1873 statutes as “ ending all private ownerships along the water front ” (Kingsland v. Mayor, 110 N. Y. 569, 578), as causing the old plan of wharves and piers owned by individuals * * * to be swept away ” (Williams v. Mayor, 105 N. Y. 419, 437) and as accomplishing the “ exclusion of all private ownership ” (Matter of Mayor of N. Y., 135 N. Y. 253, 263). The plainly stated holdings of this court in all those eases were that the 1871 and 1873 statutes completely, positively and absolutely rendered invalid and without effect any attempted grants by the city, after 1871, of any of its water front property. That some of those cases involved only piers or wharves,/or lands under them, is beside the point, since, as this court was at pains to point out in the Wilson case (see 278 N. Y. at p. 99) the court in the earlier cases (specifically the Piers 8-11 case) was construing them (the 1871 and 1873 statutes) “ not in terms of their application to piers and wharves alone, but their intent and purpose as a whole.”

With equal firmness this court in the Wilson ease (see 278 N. Y. at p. 99) rejected attempts to argue from the fact that the city subsequent to 1871, * * * made a number of grants under water.” “ The city ”, says the Wilson opinion, is not estopped from asserting its rights by these inconsistent acts, since the errors of law of city employees and officers are not binding upon the city ”.

Nor does it help respondents’ case that the lands in question had been partly or wholly filled in before the disputed grants were made. Such filled in lands retain their character as “ land under water ” (Tiffany v. Town of Oyster Bay, 234 N. Y. 15, 21; Hinkley v. State of New York, 234 N. Y. 309, 319; City of New York v. Wilson & Co., supra; see, also, City of New York v. Third Ave. Ry. Co., 294 N. Y. 238).

The orders should be reversed, with costs in all courts, and the matters remitted to Special Term for proceedings in accordance herewith.

Lewis, Dye and Fuld, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Loughran, Ch. J., concurs ; Thacher, J., taking no part.

Orders affirmed.


source: Caselaw Access Project

author: Loughban, Ch. J.

license: Public Domain

text:
    In the Matter of Maud Franklin, Petitioner-Respondent, against Allan Franklin, Respondent-Appellant.
    Argued April 16, 1946;
    decided July 23, 1946.

      Morris E. Ealpern and Morris E. Vogel for appellant..
    I. Since there is no affirmative proof that the appellant was not domiciled in Illinois when he brought an action for divorce there, the Domestic Relations Court erred in ruling that appellant did not establish a bona fide domicile in Illinois. (Matter of Holmes, 291 N. Y. 261; Williams v. North Carolina, 317 U. S. 287; Milliken v. Meyer, 311 U. S. 457; Adam v. Saenger, 303 U. S. 59; Smith v. Central Trust Co., 154 N. Y. 333; Standish v. Standish, 179 Misc. 564; Dalton v. Dalton, 270 App. Div. 269.) II. There is no principle or authority for the ruling of the Domestic Relations Court that appellant is estopped from asserting the Illinois decree of divorce as a defense to respondent’s petition for support and the Appellate Division erred in affirming the support order herein. (Matter of Holmes, 291 N. Y. 261; Fischer v. Fischer, 254 N. Y. 463; Maloney v. Maloney, 22 N. Y. S. 2d 334, 262 App. Div. 936; Schein v. Schein, 169 Misc. 608; Stevens v. Stevens, 273 N. Y. 157; Collins v. Collins, 80 N. Y. 1; Vaughan v. Vaughan, 178 Misc. 577; Christensen v. Morse Dry Dock & Repair Co., 216 App. Div. 274; Benson v. Eastern Bldg. & Loan Assn., 174 N. Y. 83; Patrone v. Howlett, 237 N. Y. 394.)

      Isidor Enselman, Louis Solomon and Paul Bank for respondent.
    I. The order appealed from is not open to review. (Norton & Siegel, Inc., v. Nolan, 276 N. Y. 392; Crouse v. McVickar, 207 N. Y. 213; Burn v. Coyle, 258 App. Div. 618, 284 N. Y. 785; Galusha v. Galusha, 116 N. Y. 635; Goldfish v. Goldfish, 193 App. Div. 686; Durland v. Syracuse Trust Co., 230 App. Div. 786; Schmelzel v. Schmelzel, 287 N. Y. 21; Goldman v. Goldman, 282 N. Y. 296; Hoyt v. Hoyt, 265 App. Div. 223; Matter of Skinner, Cook & Babcock,Inc., 238 App. Div. 573; Endurance Hold. Corp. v. Kramer Surgical Stores, Inc., 227 App. Div. 582; Jensen v. Union Railway Co., 260 N. Y. 1.) II. The Illinois divorce decree, obtained on constructive service, is ineffectual to deprive the Domestic Relations Court of jurisdiction to order support for the wife. (Loomis v. Loomis, 288 N. Y. 222; Kurski v. Kurski, 185 Misc. 97.) III. The jurisdictional issue of domicile was an open one, and was rightly decided in favor of the wife. (Matter of Bingham, 265 App. Div. 463; Matter of Holmes, 291 N. Y. 261; Matter of Lindgren, 293 N. Y. 18; Solotoff v. Solotoff, 269 App. Div. 677; Reese v. Reese, 268 App. Div. 993; McCarthy v. McCarthy, 179 Misc. 623; Gordon v. Ashley, 191 N. Y. 186; Piwowarski v. Cornwell, 273 N. Y. 226; Ferris v. Sterling, 214 N. Y. 249; Powers v. Wilson, 203 App. Div. 232; Matter of Freeman, 160 Misc. 133; Punsky v. City of New York, 129 App. Div. 558.)
   Loughban, Ch. J.

Within the city of New York, jurisdiction to hear and determine all proceedings to compel the support of a wife is given to the Family Court — a division of .the Domestic Relations Court of the city. (See Domestic Relations Court Act of the City of New York, §§ 5, 91.) The present proceeding was brought in that court in January, 1934, through the filing of a petition which alleged that the petitioner was the wife of the respondent and was dependent upon him for support that he had neglected to provide. The designations “ petitioner ” and “ respondent ” are ' prescribed by the statute just cited (§2) and on that account .are used throughout this opinion.

At the hearing (which was not held until May, 1945) the following facts were undisputed: After • their marriage at Rochester, N. Y., in 1907, the parties lived together in this State until 1926, when the respondent took up a separate abode in the State of Illinois; in January, 1930, he obtained from the Chancery Court of Illinois a decree of divorce against the petitioner; she was never a resident of Illinois, was not served with process in the Illinois divorce action except by publication, and she did not appear in that action. With that much conceded, the Family Court called the respondent as a witness. In substance he gave this testimony: His separation from the petitioner in 1926 was with her consent; thereupon he went to Illinois to accept employment in which he continued until he was dismissed therefrom in 1930; he did not go to Illinois for the purpose of getting a divorce; on the termination of his employment there in 1930 he returned to this State and in 1932 contracted a second marriage. The petitioner did not testify and no witness was called in her behalf.

At the close of the case, the Family Court entered an order directing the respondent to pay $10 weekly for the support of the petitioner. The Appellate Division affirmed by a vote of three to two and gave leave to the respondent to bring the ease here.

(1) The Family Court said that its support, order was made on the ground that the Illinois decree of divorce is not binding by reason of no bona fide domicile.” That ruling failed, we think, to give appropriate effect to the record in the light of the full faith and credit clause of our Federal Constitution. The burden was upon the petitioner to overthrow the apparent jurisdictional validity of the respondent’s Illinois divorce decree by disproving his intention to establish a domicile in that State. Since no such rebuttal was attempted by her. or in her behalf, the Illinois decree — though it stood alone — was entitled to prevail. (See Williams v. North Carolina, 325 U. S. 226; Esenwein v. Commonwealth, 325 U. S. 279.)

Whether the respondent is bound to support the petitioner irrespective of the validity of his Illinois divorce decree is a question that is not here presented . (Cf. Esenwein v. Commonwealth, 325 U. S. 279, 282-283.) On a further hearing, however, that question may be raised against him, and in that event, consideration should be given to the following provision of the Domestic Eelations Court Act of the City of New York: If the marriage relationship shall have been terminated by final decree of the supreme court of the state of New York or by judgment of any other court of competent jurisdiction, when valid in the state of New York, a petition may be filed or an. order for support made or enforced in the family court only for the benefit of a child of such marriage.” (§ 137, subd. 1.)

(2) From and after midnight of September 30, 1933, the family courts which theretofore had been parts of the magistrate court system of the City of New York were discontinued, and the powers and duties of the city magistrates in all boroughs of the city to deal with cases involving the support of a wife were ended. On October 1, 1933, the like jurisdiction of the present Domestic Eelations Court of the city was established and all proceedings for the support of a wife then pending in the former magistrates’ courts — together with all records and documents pertaining thereto — were transferred to the Domestic Eelations Court for further enforcement or modification. (Domestic Eelations Court Act of the City of New York, §§ 4, 43,165.)

Subsequently to the respondent’s procurement of his Illinois decree of divorce and in June, 1930, the Magistrate’s Court with his consent made an order directing him to pay $10 weekly for the support of the petitioner as his wife. In the judgment of the courts below, that former order precluded reliance by the respondent on his Illinois divorce decree in defense of the present proceeding. We reach a different conclusion upon that issue.

When discussion thereof was had on the hearing of the present proceeding, the court remarked that the case had been “ reserved generally ’ ’ on February 9,1934. The court then said: ‘ ‘ When a case is reserved generally it wipes the order out and wipes any arrears out. Unless something had been done since February 9, 1934, there is no order in existence today, and the question now, I think, is making a new order or we can reinstate that order * * * I think we better make a new order here.” Such a new order — the order now appealed from — was made on May 2, 1945. No mention of any earlier order appears therein. The recitals refer only to the petition which initiated the present proceeding and to the testimony taken at the hearing thereof. The direction is that the respondent pay “ Ten Dollars weekly, each' and every week, beginning on the 3rd day of May, 1945, for the support of the dependent named in the petition.” All this, we think, excludes any idea that the respondent is now concluded by the order made in June, 1930, by the former Magistrate’s Court. (Cf. Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Restatement, Judgments, § 68, subd. [2].)

The orders should be reversed, without costs, and the matter remitted to the Family Court for further proceedings not inconsistent with this opinion.

Lewis, Conway, Desmond and Thacheb, JJ., concur; Dye, J., taking no part.

Orders reversed, etc.


author: Desmond, J. Conway, J.

text:
    Ralph M. Verni, as Administrator of the Estate of Michael J. Verni, Deceased, Appellant, v. Evald Johnson, Respondent.
    Argued April 16, 1946;
    decided July 23, 1946.

      Isidor Unger for appellant.
    The trial court committed reversible error in submitting to the jury the question whether this child of three years and two months was sui juris and in admitting testimony over objection and exception from which the jury could infer that the parents of the child were negligent in their supervision. (Meyer v. Inguaggiato, 258 App. Div. 331; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; Camardo v. New York State Railways, 247 N. Y. 111.)

      Julius S. Christensen and James J. McLoughlin for respondent.
    The capacity of the infant to exercise care commensurate with his age, intelligence and experience, and the question of his contributory negligence, if any, was properly left to the jury. (Weidenfeld v. Surface Transportation Corp., 269 App. Div. 341; Richmond v. Krasne, 273 N. Y. 472; Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362; Goodheart v. American Airlines, Inc., 252 App. Div. 660; Whitcher v. Board of Education, 233 App. Div. 184; Bressler v. New York Rapid Transit Corp., 270 N. Y. 409; Camardo v. New York State Railways, 247 N. Y. 111.)
   Desmond, J.

The testimony here raised a question of fact as to defendant’s negligence. The Trial Justice submitted to the jury that issue and an issue as to contributory negligence of plaintiff’s intestate, an infant three years and two months old at the time of the accident. Plaintiff’s counsel requested a charge that “ a child of the age of three years and two months is non sui juris and incapable of being guilty of negligence ”. The request was refused. We granted leave to appeal so that we might pass on the correctness of the rule of law contended for in that request to charge.

Ip every reported case where the question has been squarely raised, this court has held that a three-year-old child is conclusively presumed to be incapable of negligence (Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, 459, 460; Ihl v. Forty-second Street & Grand St. Ferry R. R. Co., 47 N. Y. 317, 322, 323; Prendegast v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 652, 653; McGarry v. Loomis, 63 N. Y. 104,106). In Meyer v. Inguggiato (258 App. Div. 331, 333) the second department joined unanimously in an opinion by Justice Hagarty holding that “ a child under the age of four years is non sui juris, as a matter of law ”. We denied leave (282 N. Y. 811). The argument for leaving the question of competency to juries is based on certain language in Camardo v. New York State Railways (247 N. Y. 111). The Gamardo child was just under five years of age and the language of this court’s opinion must be read with that in mind. There is no sign in that opinion of any intent to overrule the Mangam, Ihl, Prendegast and McGarry cases, above cited.

Throughout the United States, as regards a child between three and four years of age, the weight of authority is in favor of a conclusive presumption of incapacity ” (107 A. L. R. 100).

The rule which refuses to allow such young children to be penalized for supposed faults has been followed in this court at least since 1868 (Mangam v. Brooklyn R. R. Co., supra). It is not an unjust rule or one which changing conditions make obsolete. No reason appears for changing it.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Conway, J.

(dissenting). I dissent and vote to affirm upon the ground that the court properly charged the jury that ordinarily a child of less than four years of age is considered to be non sui juris, but that where, as in this instance, the plaintiff introduced evidence as to the memory and intelligence of the child, the question whether or not this particular child was sui juris was a question for the jury. (Camardo v. New York State Railways, 247 N. Y. 111, 116; Prosser on Torts, § 36, p. 231; Harper, The Law of Torts, § 141, p. 310.) In Camardo v. New York State Railways (Lehman, J.) (supra) we said at p. 116: “ * *■ * A child’s age does not alone determine its capacity to care for itself and to avoid dangers which may threaten. The law does not disregard variations in capacity among children of the same age, and does not arbitrarily fix an age at which the duty to exercise some care begins or an age at which an infant must exercise the same care as an adult. * * * Determination whether under the particular circumstances in each case reasonable men might differ as to the inferences that can be drawn is decisive of whether upon the evidence a question, of fact or of law is presented. It is sometimes said that at least a presumption exists that a particular child is non sui juris, or that another child is not capable of exercising the care which an adult would exercise in the face of the danger which threatened. It would perhaps be more accurate to say that under some circumstances, in the absence of any evidence bearing upon the capacity of a particular child except its age, an inference may be drawn, in the light of common experience, as to the child’s ability to apprehend and avoid the danger which resulted in its injury. (Citing a case). Here, too, however, it must be noted that from the cases decided in this court no general rule can be deduced that at a definite and fixed age the basis for an inference that a child is incapable of caring for itself under particular circumstances fails. * * * No rule of law fixes an arbitrary age at which a particular degree of care may be expected, of furnishes a true presumption which takes the place of evidence, that a child is not chargeable with contributory negligence. Only where the circumstances admit of only one inference may the court decide as a matter of law what inference shall be drawn.” (Emphasis supplied.)

Lotjghran, Ch. J., Thacher and Dye, JJ., concur with Desmond, J.; Conway, J., dissents in memorandum, in which Lewis, J., concurs.

Judgments reversed, etc.


author: Loughran, Ch. J.

text:
    Delia B. Schacht, Respondent, v. Myron B. Schacht, Appellant.
    Argued May 21, 1946;
    decided July 23, 1946.

      Hobart S. Bird for appellant.
    I. What cannot be done directly should not be permitted to be done indirectly. (Chipman v. Montgomery, 63 N. Y. 221; Galusha v. Galusha, 138 N. Y. 272; Johnson v. Johnson, 206 N. Y. 561; Matter of Stern, 285 N. Y. 239; Crouse v. McVickar, 209 N. Y. 213; Griffin v. Griffin, 66 S. Ct. 556; Barber v. Barber, 323 U. S. 77; Sistare v. Sistare, 218 U. S. 1; Sleicher v. Sleicher, 251 N. Y. 366; Goldberg v. Mayer, 243 App. Div. 477, 270 N. Y. 660; Ansorge v. Armour, 267 N. Y. 492; Guggenheim v. Wahl, 203 N. Y. 390; Weiman v. Weiman, 295 N. Y. 150; Kraunz v. Kraunz, 293 N. Y. 152; Lindsay v. Lindsay, 52 Nev. 26.) II. The complaint was properly dismissed because it failed to state facts sufficient to constitute a cause of action upon which relief could be granted, and the defect cannot be cured by amendment. (Sager v. Friedman, 270 N. Y. 472.) III. Bespondent is estopped from attacking the decree which she asked for and obtained. (Krause v. Krause, 282 N. Y. 355; Matter of Lindgren, 293 N. Y. 18; Matter of Holmes, 291 N. Y. 261; Querze v. Querze, 290 N. Y. 13; Williams v. State of North Carolina, 317 U. S. 287, 325 U. S. 226.)

      La/wrence S. Timen and Emil H. Wasserterger for respondent.
    I. Collateral fraud was neither litigated in Nevada nor was it material to the determination of the issues in the former action; therefore the Nevada decree neither raises the doctrine of res judicata nor creates estoppel. (Hoyt v. Hoyt, 265 App. Div. 223; Silberstein v. Silbersiein, 218 N. Y. 525; Karameros v. Luther, 279 N. Y. 87; Sielcken-Schwarz v. American Factors, Ltd., 265 N. Y. 239; Boston & Maine R. R. v. Delaware & Hudson Co., 238 App. Div. 191.) II. The agreement survives the Nevada decree. (Bell v. Bell, 171 Misc. 605, 258 App. Div. 712; Chester v. Chester, 171 Misc. 608.)
   Loughran, Ch. J.

The plaintiff, who was formerly the wife of the defendant, brought this action for a judgment that would annul a separation agreement made by them on April 6, 1944. Her complaint alleges that at the making of the agreement “ the defendant herein stated to the plaintiff that the defendant’s earnings were meagre and that the defendant * ' * * could not possibly pay more than Two Hundred ($200.00) Dollars a month to the plaintiff for her support and maintenance and for the support and maintenance of the daughter of the said marriage.” The separation agreement of April 6, 1944, makes provision for payment by the defendant of $100 a month to the plaintiff for her support and for the payment by him of $100 a month for the support of their daughter. The complaint further alleges that “ said provision is wholly inadequate and insufficient and inequitable under the circumstances; that the defendant is possessed of property of the value of at least $75,000, and, upon information and belief, the defendant earns $35,000 per annum and did earn in the years 1943 and 1944 the said sum.”

The defendant moved under subdivision 5 of rule 107. of the Buies of Civil Practice for an order dismissing the complaint upon the ground that there was an existing final judgment or decree of a court of competent jurisdiction rendered on the merits, determining the same cause of action between the parties. An order of Special Term granting the motion was reversed by the Appellate Division and the case is now here on an appeal by the defendant.

Shortly after the making of the separation agreement, the marriage of the parties was dissolved by a Nevada court as the result of a suit brought by the plaintiff in which the defendant entered a general appearance. Conformably to the allegations in the plaintiff’s divorce complaint which described the separation agreement of April 6, 1944 as being “ just and fair in all respects ”, the Nevada court in its decree gave this direction: “ It is further ordered, adjudged and decreed, that the written agreement entered into between the parties, dated April 6,1944, purporting to adjust and settle all matters pertaining to the # * * support and maintenance of the minor Child of the parties * * * and the support and maintenance of the plaintiff, be, and the same is hereby ratified, approved, confirmed and adopted by the Court, and by reference made part of the Court’s decree, and both parties are hereby ordered and directed to comply with the terms and conditions thereof.”

These provisions of the Nevada decree and the rights and interests established thereby would be substantially impaired by the judgment which the plaintiff demands in the present action. The issue which she now tenders was expressly adjudicated by the Nevada court at her behest. No' claim is made that the Nevada court lacked jurisdiction or that it was misled in any way. In these circumstances, the plaintiff is precluded from maintaining the present action (see Hoyt v. Hoyt, 265 App. Div. 223, and the cases there cited; 2 Freeman on Judgments [5th ed.], §§ 631, 677).

The order of the Appellate Division should be reversed and that of Special Term affirmed, without costs, and the questions certified answered in the affirmative.

Lewis, Conway, Desmond, Thacher and Fuld, JJ., concur: Dye, J., taking no part.

Ordered accordingly.


author: Fuld, J.

text:
    In the Matter of the Claims of Industrial Commissioner et al., and Ovile Siguin, as the Father of John Siguin, Deceased, Respondent, against Adrian McCarthy et al., Appellants. Industrial Commissioner et al., Respondents.
    Argued June 13, 1946;
    decided July 23, 1946.

      Arthur J. Murphy and Gerald A. Gleason for appellants.
    I. The injury and death did not arise out of and in the course of employment. (Frost v. Franklin Mfg. Co., 204 App. Div. 700, 236 N. Y. 649; Matter of Di Salvio v. Menihan Co., 225 N. Y. 123; Matter of Scholtzhauer v. C. & L. Lunch Co., 233 N. Y. 12; Matter of Verschleiser v. Stern & Son, 229 N. Y. 192; Matter of Saenger v. Locke, 220 N. Y. 556; Industrial Commission of Ohio v. Bankes, 127 Ohio St. 517; Ackerman v. Cardillo, 140 F. 2d 348; Mascika v. Connecticut Tool Engineering Co., 109 Conn. 473; Matter of Moore, 225 Mass. 258; Hughes v. Tapley,. 206 Ark. 739; Givens v. Travelers Ins. Co;
      71 Ga. App. 50; Rex-Pyramid Oil Co. v. Magan, 287 Ky. 459; Hill v. Liberty Motor & Eng. Corp., 45 A. 2d 467.) H. That horseplay, not authorized, induced or tolerated by the employer, had been engaged in previously, does not change the rule. (Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Matter of Gifford v. Patterson, Inc., 222 N. Y. 4.) III. The award against the employer individually was improper and without foundation in law. (Matter of State Treasurer v. W. S. T. Co., 198 App. Div. 432, 233 N. Y. 202; Matter of Martin v. Wurlitzer Co., 249 App. Div. 321; Commissioner of Taxation v. Riger Bldg. Corp., 285 N. Y. 217; Edsall v. Edsall, 179 App. Div. 481; Matter of State Industrial Comm. v. Newman, 222 N. Y. 363; Phoenix Ind. Co. v. Staten Island R. T. Ry. Co., 251 N. Y. 127; Matter of Dearborn Mfg. Corporation, 92 F. 2d 417; Matter of Sackolwitz v. Hamburg Co., 295 N. Y. 264; Riggs v. Palmer, 115 N. Y. 506.)

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum, Gilbert M. Landy and Emmeline E. Ferris of counsel), for Workmen’s Compensation Board, respondent.
    I. Ample evidence supported the finding of the Industrial Board that the death of the decedent was the result of an accidental injury arising out of and in the course of his employment. (Matter of Bollard v. Engel, 278 N. Y. 463; Matter of Anthus v. Rail Joint Co., 193 App. Div. 571, 231 N. Y. 557; Matter of Curley v. Greater New York Carpet House, Inc., 254 App. Div. 792; Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Matter of Wickham v. Glenside Woolen Mills, 252 N. Y. 11; Schneider v. Masback Hardware Co., 260 App. Div. 823, 284 N. Y. 820; Matter of Levy v. World-Telegram Corp., 259 App. Div. 943, 285 N. Y. 533; Matter, of Moscon v. Thomford, 235 App. Div. 754, 260 N. Y. 578; Emerick v. Dale’s Motor Truck Service, Inc., 239 App. Div. 231; Matter of Humphrey v. Tietzen & Steffin Milk Co., 235 App. Div. 470, 261 N. Y. 549; Matter of Verschleiser v. Stern & Son, 229 N. Y. 192; Matter of Miles v. Gibbs & Hill, Inc., 250 N. Y. 590.) EE. The double allowance was properly assessed against the employer-appellant. (Matter of State Industrial Comm. v. Newman, 222 N. Y. 363; Matter of Gallahan v. Papec Machine Co., 288 N. Y. 726; Matter of Patti v. Knickerbocker Fireproofing Co., 280 N. Y. 609; Matter of Wyski v. Brewer Dry Dock Co., 251 App. Div. 769.)
   Fuld, J.

For seven months prior to December 24,1942, John Siguin, seventeen years old, had been employed as a waiter in appellant-employer’s restaurant in Massena, New York. On that day, he was accidentally killed while working in the restaurant.

The primary question posed is whether Siguin’s injury and consequent death arose ‘ ‘ out of and in the course of the employment ” within the meaning of the Workmen’s Compensation Law. The Industrial Board — now the Workmen’s Compensation Board — held that it did, and the Appellate Division unanimously affirmed.

During the time of Siguin’s employment, it had been more or less customary and usual — and this was known to appellant-employer— that whenever two employees passed, each would “ make a pass ” — take a friendly tap or blow —at the other.

"Upon the day in question, December 24,1942, Siguin came into the kitchen, conversed in amicable fashion with Demers — another seventeen-year-old boy employed at the restaurant — and then, on leaving, made a pass at Demers. As Demers turned to avoid the blow, a knife which he held in his other hand accidentally struck Siguin in the left side, penetrated his heart and caused his death.

In the light of the record, it was but natural to expect appellant’s employees to deport themselves — as boys and young men full of life and health — as they did. Indulgence in a moment’s diversion — a moment spent making a friendly pass at a fellow employee — had long been part and parcel, an incident, of the employment. The risks thereby engendered were risks of the employment. There can no longer be any question- — in this State, at least —that injuries resulting therefrom arise “ out of * * * the employment ” within the meaning of the Workmen’s Compensation Law. (Matter of Levy v. World-Telegram Corp., 285 N. Y. 533; Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Matter of Verschleiser v. Stern & Son, 229 N. Y. 192; Matter of Markell v. Green Felt Shoe Co., 221 N. Y. 493; Matter of Mason v. Nassau Riding Academy, 250 App. Div. 802; Matter of Donovan v. Bush Terminal Co., 255 App. Div. 737; Matter of Heitz v. Ruppert, 218 N. Y. 148.) We need do no more than repeat what Judge Cardozo said in the Leonbruno case (supra),, pp. 472, 473: “ The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment (Thom v. Sinclair, supra; Matter of Redner v. Faber & Son, 223 N. Y. 379).

*******

“ * * # The risks of injury incurred in the crowded contacts of the factory through the acts of fellow-workmen, are not measured by the tendency of such acts to serve the master’s business. Many things that have no such tendency are done by workmen every day. * * * The test of liability is the relation of the service to the injury, of the employment to the risk.”

Nor can there be any doubt that the injury arose in the course of the employment.” The long-continuing custom and practice — to which we have called attention — strongly indicating as it does that there was no abandonment, serves to distinguish the present case from those wherein the instigator of a fight or the initiator of horseplay was held not entitled to compensation. (Matter of Frost v. Franklin Manufacturing Co., 236 N. Y. 649, affg. 204 App. Div. 700; Matter of Stillwagon v. Callan Bros., 224 N. Y. 714, affg. 183 App. Div. 141; Griffin v. Roberson & Son, 176 App. Div. 6.) In each of those cases, there was a single isolated incident which originated solely and entirely in the injured employee’s own act; there was not — as here — a continued series of related and similar incidents participated in by all the employees. In view of that fact, Siguin can scarcely be said to have “ instigated ” and initiated ” the horseplay within the meaning of the above cases. Moreover, both the Stilhvagon and Griffin cases involved fights actually commenced in anger and animosity so that — as the Appellate Division explicitly stated in the former case (183 App. Div., at pp. 144-145) — the injuries complained of fell within the statutory exception, being “ occasioned * * * by wilful intention of the injured employee to bring about the injury or death of himself or another.” (Workmen’s Compensation Law, § 10.)

Since Siguin’s fatal injury arose out of and in the course of ” Ms employment, the determinations below upon tMs question were correct and the award against appellant-carrier should be affirmed.

The second question — raised only by appellant-employer, since he alone is affected — relates to the propriety of the award against him individually for the benefit of special funds under the Workmen’s Compensation Law.

That award was made pursuant to section 14-a of the Workmen’s Compensation Law, which provides, in part, that “ compensation and death benefits * * * shall be double the amount otherwise payable if the injured employee at the time of the accident is a minor under eighteen years of age employed, permitted or suffered to work in violation of any provision of the labor law ” and that the employer alone is to be liable for such increased compensation or death benefits. Concededly, Siguin was'under eighteen, and — in violation of section 131 of the Labor Law — no work certificate had been filed for him.

Since Siguin left no dependents, each of the two awards — both that against appellant-employer or appellant-carrier and that against appellant-employer individually — included specified sums payable to the “ Special Fund ” under section 15, subdivision 8; to the “ Vocational Rehabilitation Fund ” under section 15, subdivision 9; and to the “ Fund for Reopened Cases ” under section 25-a of the law. These statutes provide, in effect, that “ the employer, or if insured, his insurance carrier, shall pay into ” the specified fund “ for every case of injury causing death in which there are no persons entitled to compensation ” a specified sum of money.

In our view, the award against appellant-employer individually cannot stand because payments to the special funds do not constitute “ compensation and death benefits ” within the meaning of section 14-a. Subdivision 6 of section 2 defines “ compensation ” as “ the money allowance payable to an employee or to his dependents ”, and section 16 states that “ If the injury causes death, the compensation shall be known as a death benefit ”. (Emphasis supplied.)

Although we have not previously passed upon the question whether payments to the statutory special funds constitute “ compensation and death benefits ” under section 14-a, the answer is clearly pointed by the decision in Commissioner of Taxation v. Riger Bldg. Corp. (285 N. Y. 217). There, the deceased — who had been employed in a hazardous occupation by an uninsured subcontractor — was not survived by any person legally entitled to compensation. The pertinent statute — section 56 — provided that in such a case, the general contractor “ shall be liable for and shall pay compensation to any employee injured ” unless the subcontractor primarily liable has secured compensation. In vacating an award which — pursuant to that statute — directed the general contractor to pay certain sums to the three statutory special funds, the court held that such payments did not constitute “ compensation.” (See, also, Matter of State Treasurer v. West Side Trucking Co., 198 App. Div. 432, affd. 233 N. Y. 202; Matter of Martin v. Wurlitzer Co., 249 App. Div. 321.)

Additional support for our conclusion may be found in the very nature of the “ double compensation and death benefits ” payable under section 14-a. It has been repeatedly held that this increased payment is not punitive in character. (Matter of Sackolwitz v. Hamburg & Co., 295 N. Y. 264; Bogartz v. Astor, 293 N. Y. 563; Matter of Molnia v. Kaplan & Co., 293 N. Y. 700.) As this court very recently declared in the Sackolwitz case (supra, p. 267): “ In Bogartz v. Astor (293 N. Y. 563), we held that the additional payment exacted by section 14-a is not a penalty but is, as the statute itself calls it, * increased compensation.’ Imposed at a higher rate, it differs in amount, but not in character, from the lesser compensation awarded to injured adult workers.”

In short, then, none of the doubled payments except the $150 item for funeral expenses may be regarded as compensation ” or death benefits ” within the meaning of the statute. Accordingly, the Industrial Board and the Appellate Division erred in directing appellant-employer to pay to the special funds the amounts aggregating $2,000; as already indicated, however, the initial award made against appellant-employer or appellant-carrier is in all respects proper.

The order of the Appellate Division and the award of the Board should be modified by eliminating from the award the provision that appellant-employer Adrian McCarthy individually pay to the designated special funds sums aggregating $2,000, and, as so modified, affirmed, without costs.

Loughran, Ch. J., Lewis, Conway, Desmond and Thacher, JJ., concur; Dye, J., taking no part.

Ordered accordingly.


text:
    In the Matter of the Arbitration between Morris White Fashions, Inc., Appellant, and Susquehanna Mills, Inc., Respondent.
    Argued June 11, 1946;
    decided July 23, 1946.

      Samuel Masia and Archibald Palmer for appellant.
    I. The award of $1,500 in favor of Morris White Fashions was not within the scope of the controversy submitted to the arbitrators. (Civ. Prac. Act, §§ 1462, ,1462-a.) II. Decisions of arbitrators are reviewable when not within scope of arbitration or when arbitrators exceed their powers. (Dodds v. Hakes, 114 N. Y. 260; Fullman v. Ellis Plumbing & Eng. Co., Inc., 102 Misc. 62; Matter of Conway, 179 App.. Div. 108; Matter of Sheffield Farms Co., Inc., 264 App. Div. 843; Hiscock v. Harris, 74 N. Y. 108; Publishers’ Assn, of N. Y. City v. N. Y. Typo. Union No. 6, 168 Misc. 267.) I'll. The arbitrators’ construction of whether a certain issue was submitted to them is subject to review by the court. (Texorna Natural Gas Co. v. Oil Workers I. U., 58 F. Supp. 132; Matter of Bullard v. Grace Co., 240 N. Y. 388; Matter of Kelley, 240 N. Y. 74.) IV. There was no basis for reversal of the order and judgment of Special Term. (People v. Bellows, 281 N. Y. 67; Aerated Products Co. v. Godfrey, 290 N. Y. 92.) V. Special Term properly held that there was an evident miscalculation of figures. (Kutsukian v. Bossom, 60 N. Y. S. 2d 27.) VI. Morris White Fashions has properly appealed to the Court of Appeals as a matter of right. (Berizzi Co. v. Krausz, 239 N. Y. 315; Matter of Bond, 290 N. Y. 739.) VII. Subdivision 1 of section 588 is not inconsistent with article VI, section 7, of the Constitution and is not unconstitutional. (Matter of Friedheim [International Paper Co.], 292 N. Y. 663; Matter of Berg v. Marsh, 293 N. Y. 766.) VIII. The judgment entered upon the order of the Appellate Division is a final order and appealable as a matter of right under the Constitution and the Civil Practice Act. IX. The constitutionality of section 588, subdivision (1), does not affect the right of appeal. (Deyo v. Hudson, 225 N. Y. 602; Alberti v. Heineman, 230 N. Y. 585; Eckler v. Village of Ilion, 229 N. Y. 615; Whitney v. Lyric-Rochester Corp., 269 N. Y. 675; Herron v. Columbus Trust Co., 270 N. Y. 545; Matter of Friedheim [International Paper Co.], 292 N. Y. 663; Matter of Bond, 290 N. Y. 739.) X. The amount of damages was not in issue before the arbitrators. (De Marco v. John Hancock Mut. Life Ins. Co., 146 Misc. 117; Cirrincioni v. Metropolitan Life Ins. Co., 223 App. Div. 461; Vecchio v. Metropolitan Life Ins. Co., 224 App. Div. 301.) XI. Whether the arbitrators applied a correct legal rule of damages is not in issue. (Fudickar v. Guardian Mutual Life Ins. Co., 62 N. Y. 392.)

      Bavid Teitlebaum and George P. Lane for respondent.
    I. The motion to dismiss the appeal should be granted because the decision of the Appellate Division is not one of reversal or modification from which an appeal of right may be taken under section 7, article VT, of the Constitution. Insofar as it is inconsistent therewith, subdivision 1 of section 588 of the Civil Practice Act is unconstitutional. IT. The order from which petitioner attempts to appeal is not one from which an appeal of right is allowed under the settled construction of the constitutional clause. (Burns Mfg. Co. v. Clinchfield Products Corp., 231 N. Y. 561; Metallograph Corp. v. Arma Engineering Corp., 236 N. Y. 675; Dashnau v. City of Oswego, 236 N. Y. 542; Warner v. N. Y., Ont. & W. Ry. Co., 239 N. Y. 507; L’Ecluse v. Brokaw, 238 N. Y. 611; Cruger v. Hudson River R. R. Co., 12 N. Y. 190; Mike v. Levy, 241 N. Y. 577; Markiewics v. Thompson, 246 N. Y. 235; Matter of Pine Street Realty Co. v. Coutroulas, 258 N. Y. 609; Matter of Fine v. Cohen, 287 N. Y. 843.) III. The 1942 amendment to section 588 of the Civil Practice Act is unconstitutional insofar as it attempts to give an appeal of right where denied by the constitutional limitation. (Sommer & Bro., Inc., v. Lorsch & Co., Inc., 254 N. Y. 146.) IV. The motion to dismiss the appeal should be granted because the decision of the Appellate Division was not a final determination from which an appeal of right may be taken under the Constitution and the Civil Practice Act. (Matter of Arcadu v. Levinson, 250 N. Y. 355.) V. The arbitrators did not exceed their powers. Their award was within the scope of the submission and its correctness on the merits is not here subject to review. In their agreement to arbitrate, the parties specifically authorized the arbitrators to pass upon the issue of damages. (Matter of Marchant v. Mead-Morrison M. Co., 252 N. Y. 284.) VI. The amount of damages as well as the question of breach of contract was in issue before the arbitrators. (Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58.) VII. The award cannot be reviewed to determine whether the arbitrators reached correct conclusions of fact or applied correct rules of law. (Fudickar v. Guardian Mutual Life Ins. Co., 62 N. Y. 392; Cobb v. Dolphin Mfg. Co., 108 N. Y. 463; Matter of Wilkins, 169 N. Y. 494; Matter of Goff & Sons, Inc. & Rheinauer, 199 App. Div. 617.) VIII. The award contained no evident miscalculations of figures which would permit it to be modified under section 1462-a of the Civil Practice Act. (Fudickar v. Guardian Mut. Life Ins. Co., 62 N. Y. 392.)
   Loughban, Ch. J.

We must first say whether we have jurisdiction of this appeal.

The controversy had its source in a written contract for the sale of goods. The buyer claimed that deliveries made by the seller fell short of the contract specifications and on that ground demanded damages of $9,909.99. On the.seller’s denial of liability, the dispute was submitted to arbitration in accordance with a provision for that procedure contained in the contract. The award of the arbitrators called upon the seller to pay the sum of $1,500 to the buyer in full settlement of the transaction between them, but charged to the buyer the total amount of the arbitration expenses — $230.

The buyer then petitioned Special Term for invalidation of the award or for modification and correction thereof, with the result that the item of damages assessed against the seller ($1,500) was increased to the sum of $9,909.99 for which judgment was entered in the buyer’s favor. On appeal by the seller to the Appellate Division, the Special Term was reversed “ upon questions of law ” and the motion of the buyer was in all respects denied by a unanimous vote. Thereupon the buyer brought the case here through an appeal taken as of right. A motion by the seller to dismiss the appeal followed and now confronts us.

In the estimation of the seller, the effect of the reversal by the Appellate Division was a confirmation of the award and thus the equivalent of a unanimous judgment of affirmance which is not appealable of right. For that conception, Matter of Pine Street Realty Co. v. Coutroulas (258 N. Y. 609) is cited. In that case, the court at Special Term denied a motion to confirm an award and granted a motion to vacate it and to appoint another arbitrator; then on appeal to the Appellate Division the order was reversed, the award reinstated and judgment entered thereon. Such a reversal was taken by us to be tantamount to a judgment of affirmance as in a case where the Appellate Division reverses an order setting aside a verdict and reinstates the finding of the jury (Markiewicz v. Thompson, 246 N. Y. 235).

The situation here presented is altogether different. In the present proceeding, the court at Special Term did not vacate the award and order a new hearing. On the contrary, the court modified and corrected the award by increasing the amount thereof from $1,500 to $9,909.99, and ordered judgment to be entered accordingly. Upon the reversal of the judgment so directed, the Appellate Division did not reinstate the award made by the arbitrators, nor was any judgment ever entered on the award; indeed no judgment could have been so entered, for no application for confirmation of the award was made by either party. From no viewpoint, then, was the present order of the Appellate Division the equivalent of a judgment of affirmance, but was merely an order of reversal — even under the test laid down in Markiewicz v. Thompson (supra).

For that reason, we do not reach the question whether the rule of the Markiewicz case has survived the counteractive legislative construction of section 7 of article VI of our State Constitution which was introduced into Civil Practice Act, section 588, subdivision 1, paragraph (c) by chapter 297 of the Laws of 1942. (See the Seventh Annual Report of the Judicial Council, pp. 503-504; and its Eighth Annual Report, p. 423. Cf. Bencoe v. McDonnell, 261 N. Y. 694; Matter of Horowitz, 247 N. Y. 578; Matter of Friedheim [International Paper Co.], 292 N. Y. 664.)

The seller propounds one other question of practice, namely: Does the order of the Appellate Division have the degree of finality that is requisite for the purposes of review by this court? In this State, arbitration proceedings are governed by article 84 of the Civil Practice Act. Section 1467 thereof says that “ an appeal may be taken from an order made in a proceeding under this article, or from a judgment entered upon an award.” In the present case, as we have said, there was no basis for the entry of a judgment upon the award and the Appellate Division’s "order of reversal merely denied the buyer’s motion that the award be vacated or modified and corrected. (See Civ. Prac. Act, §§ 1462, 1462-a.) Such an order was plainly one that determined a special proceeding within the meaning of our State Constitution. (Matter of Bond, 290 N. Y. 739, 901. Cf. Matter of Huxley, 294 N. Y. 146, 148.), The seller cites Matter of Arcadu v. Levinson (250 N. Y. 355) as authority the other way. But the statutory phrase which dictated that decision was deleted by an amendment of Civil Practice Act, section 1467, made by chapter 210 of the Laws of 1942. (See Eighth Annual Report of the Judicial Council, p. 440.) No constitutional question is suggested at this point, for the lack of finality that defeated the appeal to this court in the Arcadu case was owing entirely to words of a statute. (See 250 N. Y. at p. 357.)

On this first branch of the case, then, our conclusion is that the appeal taken by the buyer to this court is rightly here. Accordingly the seller’s motion for dismissal thereof is denied, and we' pass to a consideration of the merits.

The stipulation for arbitration was in this form: All controversies arising out of or relating to the contract, or any modification thereof, shall be settled by arbitration in accordance with the Arbitration Buies of The National Federation of Textiles, Inc., or its successors.” The rules of that Federation made these provisions: The award may * * * declare a contract breached in whole or in part; and/or award money damages in the alternative or otherwise; but the foregoing shall not limit the power of the arbitrators to grant any other remedy or relief which they deem just and equitable.” Thus the authority of the arbitrators was not limited (as the buyer claimed) to an adjudication of a breach of the contract by the seller; it empowered them to assess the damages as well. (Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284.) Nor is there any substantial ground for the buyer’s assertion of an evident miscalculation of figures ” such as would justify a modification of the award pursuant to Civil Practice Act, section 1462-a, subdivision 1. The amount of the buyer’s damages was unliquidated and was disputed before the arbitrators. There was no error of computation unrelated to any exercise of judgment or discretion. The fairness of the arbitrators is not questioned. The award, as we believe, did not fail to give effect to their intent. In these circumstances, it is not for us to sit in judgment upon their settlement of .the controversy.'

The order should be affirmed, with costs.

Lewis, Conway, Desmond, Thacher and Fuld, JJ., concur; Dye, J., taking no part.

Order affirmed.


author: Lewis, J.

text:
    In the Matter of the Claim of Marjorie B. Dennison, Respondent, against Peckham Road Corp., et al., Respondents, and Wm. E. Bouley & Co., et al., Appellants.
    Argued April 16, 1946;
    decided July 23, 1946.

      Charles' D. Mercer for appellants.
    The Appellate Division erred as a matter of law in reversing findings of fact by the Industrial Board based on substantial evidence in the record. (Workmen’s Compensation Law, § 20; Matter of McGrinder v. Sullivan, 290 N. Y. 11; Matter of Volinsky v. Reliable Waste & Rag Co., 291 N. Y. 224; Matter of Dubinsky v. Kofsky, 266 N. Y. 631; Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459.)

      Morgan F. Bisselle and Warren C. Tucker for respondents.
    I. Appellants are precluded from urging in the Court of Appeals that the Appellate Division erred “ in reversing findings of fact by the Industrial Board ”. (Caponigri v. Altieri, 165 N. Y. 255; Lindlots Realty Corp. v. County of Suffolk, 278 N. Y. 45; Snider v. Snider, 160 N. Y. 151; Matter of Lefkowitz v. Cohen, 286 N. Y. 499; Martin v. Home Bank, 160 N. Y. 190.) II. The whole award is properly charged to Bouley, because at the time of the accident, decedent was either in the employ of Bouley only or its special employee under such circumstances that the legal result is the same -as sole employment. (Matter of Martin v. Plant, 293 N. Y. 617; Matter of Dale v. Saunders Bros., 218 N. Y. 59; Matter of De Noyer v. Cavanaugh, 221 N. Y. 273; Matter of Schweitzer v. Thompson & Norris Co., 229 N. Y. 97; Charles v. Barrett, 233 N. Y. 127; Bartolomeo v. Bennett Contracting Co., 245 N. Y. 66.)
   Lewis, J.

This claim, filed by the respondent, the widow of William Dennison, for death benefits under the Workmen’s Compensation Law, involves an application to that statute of legal principles governing ad hoc employment.

The decedent, for more than five years prior to his death, was in the employ of the respondent Peckham Road Corporation. On the date of the fatality Peckham Road Corporation and the appellant, William E. Bouley & Co. — to which reference will be made respectively as Peckham and Bouley — were engaged in performing independent contracts for grading and for the erection of buildings on a government project at the Seneca Ordnance Depot, Romulus, New York. To accomplish the excavation of a cellar for a building which it was required to erect Bouley arranged to rent from Peckham a truck shovel of which Peckham had placed its employee Roitoro in charge with authority to direct the work of the decedent who was employed by Peckham as an oiler. The arrangement included an agreement by Bouley to carry Roitoro and the decedent on its payroll. It was also understood that when the work had progressed to a point where Bouley did not want the excavating to proceed further its superintendent would notify Peckham of that fact at which time the shovel and its operators, including the decedent, would return to the Peckham job. There is no evidence that either Roitoro or the decedent received notice of their discharge by Peckham prior to the commencement of the work to be done for Bouley. Nor is there evidence that any representative of Bouley gave directions to the decedent as to how he was to perform his duties as an oiler. In accord with arrangements thus made between Peckham and Bouley and on the night before the accident the shovel was moved by Roitoro and the decedent to the site of the work to be performed for Bouley. On the morning of the following day, November 5, 1942, after one of Bouley’s employees had set the grade for the excavation and had pointed out the place where the work was to be done, Roitoro, assisted by the decedent, put the shovel into action. Excavation had been in progress only four hours when the decedent was fatally crushed by the shovel. In the Employer’s First Report of Injury ” submitted to the Department of Labor by Peclcham the statement is made that Peckham was the employer of the decedent at the time of the accident. That report is signed for Peckham by its timekeeper, — no claim being made that he lacked the authority to sign and submit the report in behalf of Peckham. Indeed, the record shows that at one of the hearings held before the Industrial Board counsel for the respondents admitted that at the time of the accident Peckham was the general employer of the decedent.

Upon these facts educed at hearings before the Industrial Board a referee determined that the death of the decedent resulted from an industrial accident which occurred when he was in the employ of Peckham as general employer and of Bouley as a special employer. The referee made an award in behalf of the decedent’s widow and minor children for death benefits, the direction being that one half the award should be paid by each employer. Thereupon the insurance carriers of both employers applied to the Industrial Board (now Workmen’s Compensation Board) for a review of the referee’s finding on the issue of liability. Each carrier claimed that the employer, other than its assured, was solely responsible for the payment of death benefits. The contentions of both carriers were rejected by the Industrial Board and the referee’s award — made jointly against both employers and both carriers — was sustained. Thereafter the general employer Peckham and the special employer Bouley and. their respective carriers appealed to the Appellate Division where again each argued that the entire award should be charged against the other carrier and its assured. At the Appellate Division the award was unanimously reversed as to the general employer Peck-ham and remitted to the Workmen’s Compensation Board — “ * * * for the making of an award solely against the William E. Bouley & Co. [special employer], and its carrier * # * 5J

We think the proven facts upon which rests the award herein are subject to the rule that —unlike a case involving ad hoc employment brought in a court of law — an award may be made in a workmen’s, compensation case against both the general and the special employer. That rule was clearly stated by Judge Pound writing for the court in Matter of De Noyer v. Cavanaugh (221 N. Y. 273, 275-276): “ 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. If the men are under the exclusive control of the special employer in the performance of work which is a part of his business, they are, for the time being, his employees. (Comerford’s Case, 224 Mass. 571, 573.) Thus at one and the same time they are generally the employees of the general employer and specially the employees of the special employer. As they may under the common law of master and servant look to the former for their wages and to the latter for damages for negligent injuries, so under the Workmen’s Compensation Law they may, so far as its provisions are applicable, look to the one or to the other or to both for compensation for injuries due to occupational hazards (Workmen’s Compensation Law [Consol. Laws, chap. 67], § 3, subds. 3, 4), and the industrial commission may make such an award as the facts in the particular case may justify.” (Emphasis supplied.) (See, also, Matter of Schweitzer v. Thompson & Norris Co., 229 N. Y. 97, 100-102; Matter of Dunbar v. MacKenzie, 198 App. Div. 946, affd. 232 N. Y. 556; Matter of Church v. Mittelstaedt, 255 App. Div. 904, affd. 280 N. Y. 613; Matter of Lewis v. Hotel St. Regis, 261 App. Div. 856, affd. 287 N. Y. 598; Matter of Proctor v. Willard Parker Hospital, 256 App. Div. 1018; Matter of McDonald v. City of New York, 265 App. Div. 1026.)

We find in the record substantial evidence which supports the finding of fact by the Industrial Board that —- ‘ ‘ At the time the said William W. Dennison sustained the accidental injuries which resulted in his death, he was employed by Peckham Road Corp., as general employer, and Wm. E. Bouley & Co., as special employer, and therefore was an employee of Peckham Road Corp. as well as of Wm. E. Bouley & Co. at the time of his death.” The fact that Bouley had agreed to carry the decedent on its payroll while the work of excavation was being done did not serve to withdraw the decedent from the general employ of Peckham; nor is that relationship altered by the fact that the decedent may have been subject temporarily to direction by employees of Bouley as to certain details of work at the site of the excavation. Upon the evidence of record before the Industrial Board it cannot be said as a matter of law that while the decedent was performing his duties as an oiler' during the time when the Peckham shovel was operated at the site of the excavation, he no longer represented Peekham’s will in the ultimate result of Ms particular work and had passed ont of the direction and control of Peckham into the control of Bouley. (Ramsey v. New York Central R. R. Co., 269 N. Y. 219, 224; Bartolomeo v. Bennett Contracting Co., 245 N. Y. 66, 69-70; Cannon v. Fargo, 222 N. Y. 321, 328, and see Kristiansen v. Wagner’s Steel Erectors, Inc., 295 N. Y. 668.)

A legislative direction has made conclusive the finding of fact, quoted above, by the Industrial Board. (Workmen’s Compensation Law, § 20.) In those circumstances the Appellate Division was without power to reverse the award as to Peckham and its carrier and to direct the remission of the proceeding to the board for the purpose of making an award solely against Bouley and its carrier. (Matter of Dans v. Gunderman & Sons, Inc., 283 N. Y. 459, 464-465 ; Matter of McGrinder v. Sullivan, 290 N. Y. 11, 12; Matter of Hoffman v. New York Central. R. R. Co., 290 N. Y. 277, 278-279.)

We cannot agree with the respondents’ assertion that the position taken by the appellants upon tMs appeal is fatally inconsistent with their position before the Industrial Board and at the Appellate Division.. At no time in this litigation have appellants argued that there was insufficient evidence to support the finding by the Industrial Board that at the time of the accident the decedent was in the employ of Peckham as general employer. Until this appeal the appellants’ position has been that at the time he met Ms death the decedent was not in the employ of Bouley as special employer and accordingly that the appellants should bear no legal responsibility for the fatality. The fact that upon the present appeal the appellants seek reinstatement of the award made by the Industrial Board — a form of relief which in degree is less than they sought in the Appellate Division — does not deprive them of the relief they now demand.

The order of the Appellate Division should be reversed and the award made by the Industrial Board (now Workmen’s Compensation Board) should be confirmed, with costs in tMs court and in the Appellate Division.

Lotjghrae, Ch. J., Coeway, Desmoed, Thacher and Dye, JJ., concur.

Ordered accordingly.


author: Desmond, J.

text:
    Peter Caldarola, Appellant, v. Moore-McCormack Lines, Inc., Defendant, and Gerda Eckert et al., Partners under the Firm Name of Thor Eckert & Co., Respondents.
    Argued June 11, 1946;
    decided July 23, 1946.

      Abraham M. Fisch and Sidney Schiffman for appellant.
    I. Defendants-respondents aided in the operation of the vessel and had a sufficient measure of control to make the necessary inspections and repairs. (Antonsen v. Bay Ridge Savings Bank, 292 N. Y. 143; Quinn v. Southgate Nelson Corp., 121 F. 2d 190; Brady v. Roosevelt S. S. Co., 317 U. S. 575.) II. Defendants and the War Shipping Administration contemplated operation of the vessel by defendants. (Lewis v. U. S. Navigation Co., 57 P. 652.) III. Where the agent has the duty and the opportunity to repair, his failure to do so, constitutes misfeasance. (Quinn v. Southgate Nelson Corp., 121 P. 2d 190; Brady v. Roosevelt S. S. Co., 317 U. S. 575; Pipitone v. Standard Fruit & Steamship Co., 57 N. Y. S. 2d 280; Mollino v. Ogden & Clarkson Corp., 243 N. Y. 450.) IV. Plaintiff need not prove that the defendants were in complete possession and control of the vessel. If defendants had a sufficient measure of control to make the necessary repairs, they should be held liable. (Quinn v. Southgate Nelson Corp., 121 F. 2d 190; Brady v. Roosevelt S. S. Co., 317 U. S. 575.)

      Raymond Parmer and Vernon Sims Jones for respondents.
    I. The decision of the United States Supreme Court in Brady v. Roosevelt Steamship Co. (317 U. S. 575) did not involve a general agency contract. It involved an entirely different contract which was used by the United States in connection with the peacetime operation of United States-owned vessels. (Pedersen v. Stockard S. S. Corp., 268 App. Div. 992; Murray v. American Export Lines, 53 P. 861; Hust v. Moore-McGormack Lines, 158 P. 2d 275.) II. The control which gives rise to common law duties toward the public is dominion. It implies the power and the right to admit people to the premises and to exclude people from them. (Cullings v. Goetz, 256 N. Y. 287; Lafredo v. Bush Terminal Co., 261 N. Y. 323; Robert v. U. S. S. B. Emergency Fleet Corp., 240 N. Y. 474.) HE. An agent’s failure to perform a duty which he owes to his principal does not constitute negligence toward a third party. (Calvin v. Holbrook, 2 N. Y. 126; Murray v. Usher, 117 N. Y. 542; Van Antwerp v. Linton, 89 Hun 417, 157 N. Y. 716; Christianson v. Breen, 288 N. Y. 435; Macutis v. Codahy Packing Co., 203 F. 291; Kelly v. Robinson, 262 F. 695; King v. City of Beaumont, 296 F. 5; Mollino v. Ogden & Clarkson Corp., 243 N. Y. 450; Lafredo v. Bush v. Terminal Co., 261 N. Y. 323; Cullings v. Goetz, 256 N. Y. 287; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160.)
   Desmond, J.

Plaintiff, a longshoreman, was injured while working on the deck of a steamship moored at a New York City pier, hy reason of the breaking of a cargo boom which was part of the ship’s gear and which, the jury held, was defective. Plaintiff was not a member of the ship’s crew but was an employee of an outside stevedoring contractor. The vessel was owned by the United States. Plaintiff sued defendants-respondents Eckert, alleging and attempting to prove that those defendants were so much in possession and control of the ship, at the time of the accident, as to make them responsible to third persons lawfully on board, for injuries caused by unsafe conditions on the ship. The jury found for plaintiff but the Appellate Division reversed upon the facts and law, and dismissed the complaint.

Defendants were not charterers of the vessel nor did they physically operate it. Plaintiff’s contention that defendants had a duty to him, to keep the ship in repair, was based on the terms of a “ G-eneral Agency Contract ” made between defendants and the United States and covering this and other ships, plaintiff relying also on certain governmental “ Regulations ” which supplemented and amplified that contract. By the contract and the regulations defendants were appointed agents “ to manage and conduct the business of ” those ships. The Appellate Division held that nothing in the arrangements between defendants and the United States made defendants any more than managers of certain aspects of the ship’s “ business ” and that defendants were not operators of the ship or responsible to third persons for its condition. Accordingly, held the Appellate Division (270 App. Div. 563, 566), any failure by defendants to perform such duties as were assigned to them by the United States in connection with repairs to the ship, was strictly nonfeasance ” for which defendants were answerable to their principal, the United States, but not to plaintiff. The Appellate Division cited and applied Cullings v. Goetz (256 N. Y. 287) where Chief Judge Cabdozo wrote (p. 290): Liability in tort is an incident to occupation or control ”.

We are in full agreement with the Appellate Division’s conclusions and the reasons therefor as stated in its opinion. There would be no occasion for writing this opinion were it not for plaintiff’s reliance on the decision of the United States Supreme Court (handed down the day before the argument of the present case in our court) in Hust v. Moore-McCormack Lines, Inc. 328 U. S.-). In that case the Supreme Court reversed a decision of the Supreme Court of Oregon which had dismissed the suit of plaintiff Hust, who, unlike the present plaintiff, was a seaman. The “ General Agency Contract ” made between the United States and defendant in the Hust case was identical with the contract of the present defendants with the government. But Hust’s suit was brought under the “ Jones Act ” (U. S. Code, tit. 46, § 688) which gives a seaman a statutory cause of action in negligence against his employer. The majority opinion in the Supreme Court holds only that the J ones Act should be liberally construed so as to give Hust a cause of action thereunder against the General Agent ”. A concurring opinion by two of the Supreme Court Justices, in the Hust case, goes much further and construes the General Agency Contract ” as putting the agent in possession and control of the ship. Since that minority holding is not the holding of the court, we are not bound to follow it nor to decide whether, if it were the decision of the court, we should have to follow it, as being on ¿ question of maritime law or because it is a construction of a contract to which the United States is a party (See S. R. A., Inc., v. Minnesota, 327 U. S. 558). We find nothing in this record to prove possession or control of the ship in these defendants Eckert, and so hold with the Appellate Division that, whatever his other remedy might be against the United States or anyone else (see Federal “ Suits in Admiralty Act ”, U. S. Code, tit. 46, § 742), plaintiff has no cause of action against these defendants. We agree with the Appellate Division that Brady v. Roosevelt S. S. Co. (317 U. S. 575) is not authority for plaintiff’s position here, since in the Brady case the vessel was being operated by the agent under a different form of agreement with the United States, which agreement required the agent to man and operate it.

The judgment should be affirmed, with costs.

Loughban, Ch., J., Lewis, Conway, Thaoheb and Fuld, JJ., concur; Dye, J., taking no part.

Judgment affirmed.

       66 S. Ct. 1218; 90 L. ed. 1220.