text:
    Sari E. Fein, Respondent, v. Paul Fein, Appellant.
    (Submitted March 3, 1933;
    decided April 11, 1933.)

      Karl Prosper for appellant.
    Both complaint and counterclaims for separation having been dismissed upon the merits, the court had no power to provide in the judgment for custody and maintenance of an infant child. (Davis v. Davis, 75 N. Y. 221; Ramsden v. Ramsden, 91 N. Y. 281; Kamman v. Kamman, 167 App. Div. 423; Robinson v. Robinson, 146 App. Div. 533; Haas v. Haas, 197 App. Div. 619.)

      Cecile Scheuer for respondent.
    The court retained jurisdiction for the purpose of awarding custody of the child and it had the power to do so, especially by the consent of the defendant in open court, even though it dismissed both complaint and counterclaim. (Civ. Prac. Act, §§ 1164, 1170; Light v. Light, 108 N. Y. Supp. 931; Waring v. Waring, 100 N. Y. 570; Seibert v. Dunn, 216 N. Y. 237.)
   Kellogg, J.

This action was brought by a wife against her husband to procure a separation, on the ground that the husband had treated the wife in a cruel and inhuman manner. The husband denied that he had so treated his wife, alleged that she had treated him with cruelty, and demanded a judgment of separation from her. The trial court, holding that neither side had shown cause for a separation, dismissed the complaint and the answer. However, in its judgment, the court made provision that the wife should have custody and control of the child of the marriage, and that the husband should make weekly payments to the wife for the support, maintenance and education of the child. The contention, made upon this appeal, is that these provisions were improperly inserted in a judgment denying to either party the principal relief of a legal separation.

It is provided in section 1164 of the Civil Practice Act that in an action for separation brought by the wife, the court, in the final judgment of separation ” may give such directions as may be proper. In particular it may compel the defendant to provide suitably for the education and maintenance of the children of the marriage. And the court, in such an action, may render a judgment compelling the defendant to make the provisions specified in this section where, under the circumstances of the case, such a judgment is proper, without rendering a judgment of separation.”

The case of Davis v. Davis (75 N. Y. 221, 227) was one where a wife sued her husband for a separation. The trial court denied the separation but directed judgment, awarding the custody of the children to the wife, and requiring the husband to make provision for their maintenance and education. This court held that when the wife failed in her case for the principal relief demanded, viz., that of separation, she likewise failed in respect to all relief incidental thereto, such as provisions for the custody and maintenance of the children. The holding was made in spite of the fact that the Revised Statutes then provided: “ Although a decree for separation from bed and board be not made, the court may make such order or decree for the support and maintenance of the wife and her children, or any of them, by the husband, or out of his property, as the nature of the case renders suitable and proper.” (2 R. S. 147.) The court stated that this provision was applicable only where the wife had established a case for separation, but had waived the right to a judgment. The court, through Andrews, J., made this statement: “ It would be an anomaly in legal proceedings to allow a complainant, who had failed to establish a claim to the principal relief sought, to have a decree against the defendant for the mere incidents to that relief.” It likewise stated: “ The court was not authorized, in this action, after having denied judgment of separation, to award to the plaintiff the custody of the children, or make a decree for their support.” This being true for the purposes of the Davis case, in spite of the definite provisions of the Revised Statutes, which then controlled, all the more evidently must be true for the purposes of this case which is controlled by the less definite provisions of sections 1164, 1170 of the Civil Practice Act.

The holding in the case of Davis v. Davis (supra) has never been reversed or questioned. On the contrary, the case has but recently been cited with approval in Finlay v. Finlay (240 N. Y. 429). There this court, writing through Cardozo, J. (at p. 431), made this statement: The statute permits a judgment fixing the custody of children as an incident to a judgment for divorce or separation. If divorce or separation is refused, jurisdiction is not retained to adjudicate the incident upon the failure of the principal (Davis v. Davis, 75 N. Y. 221). Relief must then be sought, not in the statutory action for divorce or separation, but by recourse to other remedies.”

The judgment of the Appellate Division and that of the Special Term should be modified by striking therefrom the provisions for the support of the child, and as so modified the judgment of the Appellate Division should be affirmed.

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

Judgment accordingly.


source: Caselaw Access Project

author: Kellogg, J.

license: Public Domain

text:
    John E. Banister, as Administrator of the Estate of John W. Banister, Deceased, Respondent, v. Richard J. Gray, as Treasurer of Bricklayers, Masons and Plasterers International Union of America, Appellant.
    (Argued March 8, 1933;
    decided April 11, 1933.)

      Harold J. Hinman, Alfred M. Bailey, Murray Hulbert and John J. Dillon for appellant.
    The constitution of the union gives the members no vested right to payments from the relief fund. {Polín v. Kaplan, 257 N. Y. 277; Belton v. Hatch, 109 N. Y. 593; Gray v. Ferris, 230 App. Div. 416; Strauss v. Thoman, 60 Mise. Rep. 72; Robinson v. Dahm, 94 Mise. Rep. 729; Rood v. Railway P. & F. C. Mut. Ben. Assn., 31 Fed. Rep. 62; Van Poucke v. Nether-land St. Vincent de Paul Soc., 63 Mich. 378; Hembeau v. Great Camp, 101 Mich. 161; Anacosta Tribe v. Murbach, 13 Md. 91; Robinson v. Templar Lodge, 117 Cal. 375; Grand Lodge, Brotherhood of Railroad Trainmen v. Nolan, 196 Ky. 296; Rieden v. Brotherhood of Railroad Trainmen, 184 S. W. Rep. 689; Robinson v. Brotherhood of Railroad Trainmen, 80 W. Ya. 567; Kelly v. Brotherhood of Railroad Trainmen, 308 111. 508.)

      William Burdell Banister for respondent.
    The words “ means of support ” used in the constitution of the defendant must be taken in their ordinary, usual and general meaning. {Meidel v. Anthis, 71 111. 241.) If the constitution is entitled to more than one interpretation or the wording thereof is ambiguous then such article must be interpreted in favor of the member and against the union. {Strauss v. Ernstein, 232 N. Y. 187; Moranv. Standard Oil Co., 211 N. Y. 187; Marcus v. United States Casualty Co., 249 N. Y. 21; Bushey & Sons v. American Ins. Co., 237 N. Y. 24; Nellis v. Western Life Ind. Co., 207 ' N. Y. 320; Wiggin v. Knights of Pythias, 31 Fed. Rep. 122; Bricklayers’ Union v. Bowen, 183 N. Y. Supp. 855; 198 App. Div. 967.)
   Kellogg, J.

John William Banister was a member in good standing of the Bricklayers, Masons and Plasterers’ International Union of America, an unincorporated association. The association maintained a fund known as “ The Old Age and Disability Relief Fund.” In March, 1923, Banister made application for relief payable from the fund, and the application was granted. Subsequently, there was paid to Banister the sum of $7 per week until April, 1928, when the defendant struck his name from the roster of those receiving payments from the fund, and refused to make further payments. This action was brought after the death of Banister by his administrator to recover the aggregate sum claimed to be owing Banister for the period elapsing between April, 1928, and the day of his death.

The constitution of the defendant makes the following provision: “A member who has attained the age of sixty years, and who has been in continuous good standing for a period of twenty years, and is in good standing at the time he applies, and who by reason of bodily infirmity is unable to secure sustaining employment at any occupation and has no means of support, and against whom no charges of any kind whatsoever are pending in any subordinate union of the I. U., may apply for the Old Age Relief herein provided.” It also provides: The Executive Board of the I. U. shall determine all applications for relief, and no application shall be granted unless the applicant complies with all the requirements herein provided for, and such other requirements as said Board may deem necessary, and if the application is approved, payment shall commence at the time of approval.”

Banister had established to the satisfaction of the defendant that he was of the age of sixty; that he had been in continuous good standing for a period of twenty years; that he was then in good standing; that he was unable by reason of bodily infirmity to obtain employment; that he had no means of support; that no charges of any kind were pending against him. Accordingly, the defendant admitted Banister to participation in the fund. The defendant was not then aware that Banister had four adult sons; that each was gainfully employed; that each was financially able to support his father; that one of them was in fact contributing to his father’s support. Having discovered these facts, the defendant, in April, 1928, because of them, struck Banister’s name from the roster of those receiving payment from the Relief Bund. Bor this action, it claims authority will be found in a provision of the constitution reading as follows: “ The Executive Board of the I. U. may at any time revoke any application, and strike from the relief roll the name of the member or widow whose application is revoked, if in the judgment of the Executive Board there is sufficient reason for such revocation.”

No word is employed in the constitution from which the conclusion may be drawn that Banister was entitled as of right to participation in the fund. Compliance with all the conditions of eligibility specified would bring no promise to him that he would be paid from the fund. The language is merely- that if he complies he “ may apply for'the Old Age Relief herein provided.” Having applied “ The Executive Board of the I. U. shall determine all applications for relief,” and if the application is approved, “ payment shall commence at -the time of approval.” At the very most Banister was granted a privilege to make application. Whether the application would be granted or not was entirely a matter for the Executive Board, in its discretion, to decide. The applicant must have complied, not only with the conditions expressly stated, but with “ such other requirements as said Board may deem necessary.” Banister’s participation, therefore, was not a matter of right but a matter of favor. Many authorities in other jurisdictions support such a holding. (Rood v. Railway P. & F. C. Mut. Ben. Assn., 31 Fed. Rep. 62; Van Poucke v. Netherland St. Vincent de Paul Soc., 63 Mich. 378; Anacosta Tribe v. Murbach, 13 Md. 91; Grand Lodge, Brotherhood of Railroad Trainmen v. Nolan, 196 Ky. 296; Rieden v. Brotherhood of Railroad Trainmen, [Tex. Civ. App.] 184 S. W. Rep. 689; Kelly v. Brotherhood of Railroad Trainmen, 308 Ill. 508.) As said in the Texas case: “ No duty was imposed by the contract upon the board to allow any such claim;” as said in the Illinois case: The section neither creates nor recognizes any obligation of the society to pay any amount on any such claim but leaves the character and sufficiency of the proofs entirely to the discretion of the board, which is to decide whether the society shall pay, not as a claim arising upon the certificate but in the exercise of its systematic benevolence, an amount equal to the full amount of the certificate;” so here, no contract term entitled Banister to payment, as a matter of right, or other than as a matter of discretion to be exercised in his favor or not, as the board might decide.

That which is true, in respect to Banister’s original participation in the fund, is equally true in respect to the subsequent revocation thereof. As the board had the right originally, in their discretion to grant or deny participation, so, subsequently, in their discretion, they had the right to revoke or continue such participation. Such is the language of the constitution which provides that the board may at any time revoke any application ” if “ in the judgment of the Executive Board there is sufficient reason for such revocation.”

The board might well have justified their action upon the grounds: There are 1,867 members on the roster of the Old Age and Disability Relief Fund, each of whom receives payment therefrom of the sum of $28 per month, or a total sum per year of $627,312. The total fund is $1,734,152.32, which, if conditions of unemployment remain as they are, might soon be exhausted, unless payment be denied to such men as Banister, whose children are amply able to give him necessary support. However, the defendant was not required to justify the revocation made. We think that the board was privileged to make it accordingly as their discretion dictated.

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

Crane, Lehman, and O’Brien, JJ., concur; Pound, Ch. J., and Crouch, J., dissent; Hubbs, J., not sitting. Judgments reversed, etc.


author: Crouch, J.

text:
    Ella E. Anderson, Respondent, v. The Northwestern Mutual Life Insurance Company, Appellant.

      (Argued February 27, 1933;
    decided April 11, 1933.)

      Edwin F. Valentine for appellant.
    Pursuant to the terms of the policy and the insurance statutes, the insured, the holder of the policy, had the right to reduce the amount of such insurance by borrowing on the policy without the signature or consent of the beneficiary. {Caplin v. Penn Mut. Life Ins. Co., 182 App. Div. 269; 229 N. Y. 545.) Plaintiff, upon the death of the insured, was entitled to no more than the amount of the policy,' after deduction of the loan made to the insured, {Travelers’ Ins. Co. v.,Healy, 25 App. Div. 53; 164 N. Y. 607; Chatham- Phenix Bank v. Crosney, 251 N. Y. 189.)

      Carlo D. Celia for respondent.
    Plaintiff had a proprietary or vested interest in the policy, of which she could not be divested without her consent. (Shipman v. Protected Home Circle, 174 N. Y. 398; Bradshaw v. Mutual Life Ins. Co., 205 N. Y. 467; Jacobs v. Strumwasser, 84 Mise. Rep. 28; Central Nat. Bank v. Hume, 128 ,U. S. 195; Whitehead v. N. Y. Life Ins. Co., 102 N. Y. 143; Garner v. Germania Life Ins. Co., 110 N. Y. 266; Fowler v. Butterly, 78 N. Y. 68; Walsh v. Mutual Life Ins. Co., 133 N. Y. 408; Chatham Phenix Bank v. Crosney, 251 N. Y. 189; Grems v. Traver, 87 Mise. Rep. 644; 164 App. Div. 968; Ruckenstein v. Metropolitan Life Ins. Co., 144 Mise. Rep. 154; Matter of Hayes, 131 Mise. Rep. 806; 252 N. Y. 148; Maurice v. Travelers Ins. Co., 121 Mise. Rep. 427; Matter of Samuels, 254 Fed. Rep. 775.) Neither section 101 of the Insurance Law (Cons. Laws, ch. 28) nor the terms of the policy-reserved to the insured the right to borrow on the policy without the consent of the beneficiary. (Maurice v. Travelers Ins. Co., 121 Mise. Rep. 427.)
   Crouch, J.

On March 1, 1909, the defendant issued an ordinary life policy for $4,000 on the life of plaintiff’s husband, payable to the plaintiff if she survived, otherwise to his estate. The application was made by the husband in his own name, and not in the name of his wife. On September 27, 1927, the husband obtained a loan from the defendant on an assignment of the policy bearing his signature and the forged signature of the plaintiff. The husband died on May 2, 1931. The defendant paid the amount due on the policy less the amount due on the loan. The plaintiff seeks to recover the amount so retained by the defendant.

Although section 52 of the Domestic Relations Law (Cons. Laws, ch. 14) applies in terms only to policies taken out or caused to be taken out by a married woman, it has become settled law that it also applies to policies taken out by the husband when made payable to the wife. (Chatham Phenix Nat. Bank v. Crosney, 251 N. Y. 189, 193.) The property right which the wife has in such policies may be defeated or materially changed only with her consent (Whitehead v. New York Life Ins. Co., 102 N. Y. 143; Bradshaw v. Mutual Life Ins. Co., 205 N. Y. 467), or in accordance with senior rights in the husband clearly expressed in the insurance contract itself. (Bradshaw v. Mutual Life Ins. Co., 187 N. Y. 347, 355; Wagner v. Thieriot, 203 App. Div. 757, 764; affd., 236 N. Y. 588.)

It is the contention of the defendant that under the policy in suit the husband by express provision had the right to borrow without the consent of his wife. The particular provision to which defendant points, reads as follows:

5. Upon request and the sole security of the policy properly assigned, the Company will advance at a rate of interest not exceeding six per cent an amount equal to (or at the option of the Insured less than) the then cash surrender value of the Policy, less five per cent, provided extended term insurance shall not then be in force. Failure to pay either loan or interest shall not avoid the Policy unless the total indebtedness to the Company on account thereof shall equal or exceed the cash surrender value of the Policy and any existing dividend additions, nor until thirty-one days after notice shall have been mailed to the last known address of the Insured and of any Assignee.”

We may assume that this provision was put in the policy pursuant to the requirements of section 101 of the Insurance Law (Cons. Laws, ch. 28). Neither the statute nor the policy provision above quoted points out upon whose request the loan should be made, nor what would constitute a proper assignment. Those were matters which necessarily depended upon the person or persons who under the contract as a whole and under any other applicable statute, had rights in the policy. The use of the word " Insured ” in the option and notice clauses is at best ambiguous. Section 101 of the Insurance Law uses the word “ owner ” in the same connection; and so it stood on the statute book when this policy was issued. (Laws of 1909, ch. 33, § 101, subd. 7; as amd. Laws of 1909, ch. 301.) Since the wife under section 52 of the Domestic Relations Law was the owner or holder of the policy (Bradshaw v. Mutual Life Ins. Co., 205 N. Y. 467), and could assign it only with the consent of the assured,” the act of both plaintiff and her husband was, in the absence of a clear provision in the policy to the contrary, necessary to effect a valid transfer to the defendant. There is no such provision. On the other hand, analogous provisions in the policy relating to premium loans and to paid-up insurance specifically require the act of both parties. Moreover, the defendant itself seems so to have construed the policy, for the form of application and loan agreement prepared by it required the signatures of both husband and wife. It is a fair inference that the loan would not have been made but for the forged signature of plaintiff.

Caplin v. Penn Mutual Life Ins. Co. (182 App. Div. 269; affd., 229 N. Y. 545) was decided upon its own particular facts and is no precedent here.

The judgment should be affirmed with costs.

Pound, Ch. J., Crane, Lehman, Kellogg and O'Brien, JJ., concur; Hubbs, J., not voting.

Judgment affirmed.


text:
    Robins Dry Dock and Repair Company, Appellant and Respondent, v. Navigazione Libera Triestina, S. A., Respondent, and Moran Towing and Transportation Company, Inc., Appellant.

      (Argued January 18, 1933;
    decided April 11, 1933.)

      Harold Harper and E. Curtis Rouse for plaintiff, appellent and respondent.
    The plaintiff is entitled to judgment either against the defendant-appellant towing company or the defendant-respondent steamship company. (S. & C. Clothing Co. v. United States Trucking Corp., 216 App. Div. 482; Yatter v. Mathies, 139 Mise. Rep. 26; Hummerstone v. Leary [1921] 2 K. B. 664; Thermoid Rubber Co. v. Baird Rubber & Trading Co., 124 Mise. Rep. 774; White v. Steam-Tug Lavergne, 2 Fed. Rep. 788.) The judgment against the towing company was proper irrespective of the depositions. {Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297; The Steamer Webb, 14 Wall. 406; The Allegheny, 252 Fed. Rep. 6; The Clarence P. Howland, 16 Fed. Rep. [2d] 25; The Dorset, 260 Fed. Rep. 32; The John D. Rockefeller, 272 Fed. Rep. 67; Calzavaro v. Planet S. S. Corp., 31 Fed. Rep. [2d] 885; Wilmington Ry. Bridge Co. v. Franco-Ottoman S. Co., 259 Fed. Rep. 166; Elwood v. Western Union Tel. Co.,
      45 N. Y. 549; Wohlfahrt v. Beckert, 92 N. Y. 490; Gaffney v. N. Y. Consolidated R. R. Co., 220 N. Y. 34.)

      Harold R. Medina, Richard F. Lenahan and William F. McNulty for defendant-appellant.
    The admission into evidence of the incompetent depositions of the Brenta’s captain and third mate constituted clear reversible error. (.Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, 32 Fed. Rep. [2d] 209; Syracuse Mortgage Corp. v. Kepler, 122 Mise. Rep. 95.) In holding that the tugboat captain was responsible for the collision the trial court allowed itself to be influenced by such irrelevant considerations as the verdict of the jury in the action which the plaintiff had previously instituted against the Brenta’s owner in the United States District Court. (Hull v. Littauer, 162 N. Y. 569; Kelly v. Burroughs, 102 N. Y. 93; Lomer v. Meeker, 25 N. Y. 361; Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, 32 Fed. Rep. [2d] 209; Lamb v. Union Ry, Co., 195 N. Y. 260; Ruppert v. Brooklyn H. R. R. Co., 154 N. Y. 90; O’Gara v. Eisenlohr, 38 N. Y. 296; The China, 7 Wall. 53; Jure v. United Fruit Co., 6 Fed. Rep. [2d] 6; Chórente S. S. Co. v. United States, 12 Fed. Rep. [2d] 412.) Even though it were to be assumed that the tugboat captain did order the Brenta’s engines “ half speed ahead ” the defendant-appellant would still not be hable for his negligence in this respect because the record establishes that at the time of the collision he was acting as the agent, not of the defendant-appellant, but of the vessel’s owner. (Casey v. Davis & Furber Machine Co., 209 N. Y. 24; Higgins v. Western Union Tel. Co., 156 N. Y. 75; Wyllie v. Palmer, 137 N. Y. 248; The. China, 7 Wall. 53; Jure v. United Fruit Co., 6 Fed. Rep. [2d] 6; Chorante S. S. Co. v. United States, 12 Fed. Rep. [2d] 412; Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, 32 Fed. Rep. [2d] 209; The Barendrecht, 9 Fed. Rep. [2d] 614; Sun Oil Co. v. Dalzell Towing Co., 55 Fed. Rep. [2d] 63; Foreign Transport & Mercantile Corp. v. Moran Towing & Transportation Co., 57 Fed. Rep. [2d] 143.)

      Homer L. Loomis for defendant-respondent.
    The trial justice on the evidence was obliged to find that in so far as the collision was due to negligence such negligence was alone that of the defendant-appellant’s pilot, whose version of the collision was unbelievable while that of the foreign witnesses was in entire keeping with the probabilities. (Ramsdell Transp. Co. v. Compagnie Generate Transatlantique, 63 Fed. Rep. 845; 182 U. S. 406.) Apart from any special assumption of liability to the plaintiff, the defendant-respondent is not answerable to it for the default of a tower supplying both pilotage and tugs. (Wilmington By. Bridge Co. v. Franco-Ottoman S. Co., 259 Fed. Rep. 166; Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, 32 Fed. Rep. [2d] 209; Calzavaro v. Planet S. S. Corp., 31 Fed. Rep. [2d] 885; The Dorset, 260 Fed. Rep. 32; The John D. Rockefeller, 272 Fed. Rep. 67; Sturgis v. Boyer, 24 How. [U. S.] 110; The W. G. Mason, 142 Fed. Rep. 913; The Edward G. Murray, 278 Fed. Rep. 895; The Stella, 278 Fed. Rep. 939; United States v. Port of Portland, 300 Fed. Rep. 724.) The agreement relied on by the defendant-appellant to support its appeal from the dock owner’s judgment against it is not effective against the shipowner because it is not available to or enforceable by the dock owner and because it is in no event applicable to a case where, as here, the tower furnished the pilotage as well as the assisting tugs. (Noonan v. Bradley, 9 Wall. [U. S.] 394; Gillett v. Bank of America, 160 N. Y. 549; Moran v. Standard Oil Co., 211 N. Y. 187.) In any event the defendant-appellant’s non-liability clause, was never effective between the shipowner and the tug owner, since the proofs wholly failed to show a meeting of minds thereon. (Robitzek & Bro. v. Davis, 296 Fed. Rep. 107; Calzávaro v. Planet S. S. Corp., 31 Fed. Rep. [2d] 885; Madan v. Sherard, 73 N. Y. 329; Bell v. Mills, 78 App. Div. 42; Neuman v. National Shoe & Leather Exchange, 26 Mise. Rep. 388; Los Angeles Investment Co. v. HomeSav. Bank, 180 Cal. 601; Blossom v. Dodd, 43 N. Y. 264; The Coamo, 267 Fed. Rep. 686; The W. S. Holbrook, 294 Fed. Rep. 908; Navigazione Generate Italiana v, Timmins, 278 Fed. Rep. 895.)
   Crouch, J.

The Brenta II, a single screw steamship of 8,845 tons, was on January 21, 1926, moored in a slip in the Erie Basin, bow in, alongside and parallel to the steamship El Siglo, which in turn lay alongside Pier No. 2. One hundred and fifty feet further in, the slip ended with the gate of plaintiff’s graving dock. About two o’clock of that day, the Brenta II prepared to leave the harbor, and its agents called the defendant Moran Towing Company for two tugs and a pilot to undock it, stating that its steam was up. Accordingly, the tugs Agnes Moran and C. P. Raymond were dispatched to the ship, and on their arrival Healy, master of the Agnes Moran, went aboard and directed the maneuvers of the tugs and the Brenta II from its bridge up to the time of the collision. A line was passed from the starboard bow of the ship to the Agnes Moran, and another from its starboard quarter to the C. P. Raymond. The mooring lines were taken up and the engines of the Brenta II started ahead, the tugs at the same time pulling astern and to starboard, toward the middle of the slip. When the ship had gone about half the distance inshore, its engines were reversed to full speed astern. At about that time, however, the head fine of the Agnes Moran parted. The full steam pressure of the engines astern and the remaining tug did not entirely overcome the headway forward, and the bow of the ship came in contact with the gate of the graving dock, causing damage of $19,080.

Plaintiff brought a common-law action in the Federal court against the steamship company alone. A verdict for" the defendant was reversed and a new trial granted by the Circuit Court of Appeals. (Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, S. A., 32 Fed. Rep. [2d] 209.) On that trial the defendant put in no evidence but rested upon the plaintiff’s case. In view of the decision, it became necessary for the defendant on a new trial to adduce certain testimony. Accordingly, the captain and the third mate of the Brenta II were brought from Italy to New York and their depositions taken de bene esse.

Before the new trial was had, however, plaintiff determined to sue the Moran Towing Company as well as the original defendant. It thereupon brought this action in the State court, framing its complaint under the provisions of section 213 of the Civil Practice Act. The action in Federal court was discontinued upon a stipulation that the depositions above referred to might be used by the original defendant as evidence in the State court action.

Trial of the action was had as a non-jury case. Judgment was directed in favor of the plaintiff against the Moran Towing Company, and the complaint was dismissed as to the owner of the ship. The court found as facts that the accident occurred in consequence of the negligent navigation of the ship by Healy, and that Healy was acting at the time as the agent of the towing company, and not of .the ship’s owner. The judgment was unanimously affirmed in the Appellate Division and the case is here by leave of this court.

The appellant Towing Company asserts: (1) That the finding of negligence by Healy rests solely upon the testh mony of two interested witnesses whom it had no opportunity to cross-examine; and (2) that Healy in any event was, as matter of law, the agent of the ship and not the agent of the towing company.

(1) Upon the trial Healy, as a witness for the towing company, testified to facts which if believed exonerated him and placed the blame for the ship’s forward movement upon the engine room crew of the ship. The ship’s owner in its own behalf and against the plaintiff only, offered to read in evidence the depositions of the captain and the third mate of the ship, taken under the circumstances above recited. To this testimony the Moran Towing Company objected upon the ground that it had not been a party to the first action and that it had had no opportunity to cross-examine the witnesses. The court permitted the depositions to be read as offered, and stated that the testimony was received only with respect to the plaintiff’s claim against the ship’s owner, and would not be considered as against the Moran Towing Company. It may be conceded that it is not always easy for a trier of fact, whether judge or jury, to keep evidence in separate compartments. When it is said, however, that the solution of the dilemma presented here was unsatisfactory and artificial, the answer must be that the dilemma was neither new nor unusual and that it has always been solved as it was here. (Compare Akely v. Kinnicutt, 238 N. Y. 466, 475; Crandall v. Leach & Co., 222 App. Div. 292; Scully v. Scully, 179 App. Div. 266.) In any event, we are unable to see that the towing company was prejudiced by the ruling. The trial court, for reasons stated in its opinion, discredited' Healy’s story, and perhaps found in its very improbability, evidence to the contrary. Beyond that, however, there was testimony by the captain of the tug Raymond that he “ noticed the operator [who could have been none other than Healy] of the steamer Brenta, motion to the ship to go toward the gate of dry dock No. 1.” There is no indication in the record that the trial court was influenced by the testimony contained in the depositions, nor may we say that there was no other evidence to support the finding, unanimously affirmed, that Healy was negligent. .

(2) The negligence - of Healy being established, the remaining question is to determine which of the two defendants must answer for it. As stated above, the Moran Towing Company received an order from the agents of the ship’s owner, to send two tugs and a pilot to assist the ship away from the dock, the ship to do her own steaming. The Agnes Moran and the C. P. Raymond were the two tugs and Healy was the pilot sent in compliance with that order. The maneuver which the Moran Towing Company was asked to perform was merely to undock the vessel and turn its bow seaward. In performing that maneuver, the general rule is that the tower acts as an independent contractor, and is primarily liable for negligent injuries. (Sturgis v. Boyer, 24 How. [U. S.] 110; The Dorset, 260 Fed. Rep. 32; The John D. Rockefeller, 272 Fed. Rep. 67; Calzavaro v. Planet S. S. Corp., 31 Fed. Rep. [2d] 885.)

Except for what is referred to in the case as the “ pilot-age clause,” the general rule would apply. It appears that from time to time the Moran Towing Company circulated among those who were likely to call upon it for service, printed copies of a rate schedule. It may be taken as a fact that the general agent of the ship’s owner had over a period of several years dealt with the Moran Towing Company on the basis of its current rate schedule. Included in each rate schedule was' a provision which read as follows: “Pilotage. When the captain of any tug engaged in the services of towing a vessel which is making use of her own propelling power goes on board said vessel, it is understood and agreed that said tugboat captain becomes the servant of the owners in respect to the giving of orders to any of the tugs engaged in the towage service and in respect to the handling of such vessel, and neither the tugs nor their owners or agents shall be liable for any damage resulting therefrom.”

There is plenty of authority holding that the effect of this provision as between the parties to the contract, is to alter the incidence of liability and to fix it upon the ship’s owner. It is analogous to an indemnity agreement or to an agreement securing exemption from liability for loss or damage caused by a party’s own negligence. As such it has been held to be valid. (Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291.) But also, as such, it has no validity as to third persons. (Brewer v. New York, L. E. & W. R. R. Co., 124 N. Y. 59; Texas & Pacific Ry. Co. v. Watson, 190 U. S. 287; Coppock v. L. I. R. R. Co., 89 Hun, 186.) Something more, however, is claimed for it. Because it says that the tugboat captain becomes the servant of the owners * * * in respect to the handling of such vessel,” it is argued that such was in fact Healy’s relation to the ship’s owner, even when considered in the light of the surrounding facts and circumstances. We do not understand appellant to argue that in and of itself the clause was conclusive on plaintiff. That, of course, would not be so. A party may not shield himself from liability to a third person, merely by stipulating with another party that he is something which in reality he is not. (Finegan v. Piercy Contracting Co., 189 App. Div. 699; Buck v. Standard Oil Co., 224 App. Div. 299; affd., 249 N. Y. 595.) The question became one of fact and was so determined below; nor did the court in considering the question, lose sight of the contract itself, as appellant asserts. The description which the parties gave to their own relation was weighed against the facts, and the facts were found not to justify that description. We think the finding was right.

The judgment should be affirmed with costs to the plaintiff against the defendant Moran Towing & Transportation Company, Inc., and with costs to defendant Navigazione Libera Triestina, S. A., as against the plaintiff.

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

Judgment accordingly.


author: Crane, J. Crouch, J. (dissenting).

text:
    Alma Clayburgh, Appellant, v. Albert Clayburgh, Respondent. (Action No. 5.)
    (Argued March 13, 1933;
    decided April 11, 1933.)

      Wilber W. Chambers and Edmund L. Mooney for appellant.
    The plaintiff is entitled to recover from the defendant the amount paid out of her own moneys for the maintenance and support of the infant daughter. (DeBrauwere v. DeBrauwere, 203 N. Y. 460; Laumeier v. Laumeier, 237 N. Y. 357; Manice v. Randolph, 221 App. Div. 570.) There is nothing in the separation agreement which prevents the plaintiff from recovering from the defendant the moneys she expended out of her own separate property for the support and maintenance of the infant daughter. (Manson v. Curtis, 223 N. Y. 313; United Paper Board Co. v. Iroquois Pulp & Paper Co., 226 N. Y. 38; Johnson v. Johnson, 157 App. Div. 289; Van Roeder v. Miller, 117 Mise. Rep. 106; Ehrich v. Ehrich, 211 App. Div. 490; Gellert v. Gellert, 128 Mise. Rep. 146; 219 App. Div. 737; Brainard v. N. Y. C. R. R. Co., 242 N. Y. 125; Farmers Loan & Trust Co. v. Park & Tilford, 127 Mise. Rep. 59; Onward Construction Co. v. Tiffany Studios, 185 App. Div. 850; Eisehberg v. Thorne, 96 N. Y. Supp. 1020.)

      Max D. Steuer, J. Arthur Leve and Charles Pickett for respondent.
    Plaintiff’s liability is limited by the agreement to $15,000 plus the cost of the daughter’s medical attendance, nurse and school expenses. (Baumann v. Stetten, 257 N. Y. 480; Manson v. Curtis, 223 N. Y. 313; Fleischmann v. Furgueson, 223 N. "Y. 235; Freston v. Lawrence Cement Co., 155 N. Y. 220; O’ Neil v. Van Tassel, 137 N. Y. 297; Galusha v. Galusha, 116 N. Y. 635; Dwryea v. Bliven, 122 N. Y. 567; Wood v. Lucy, Lady Duff-Gordon, 222 N. Y. 88; Matter of Junge, 125 Mise. Rep. 707; Robia Holding Corp. v. Walker, 257 N. Y. 431; Hartog v. Piano & Kline, Inc., 260 N. Y. 79; Montemarano v. Home Title Ins. Co., 258 N. Y. 478; Land Filling & Improvement Co. v. Steers, Inc., 259 N. Y. 35; Hoffstaedew. Hoffstaeder, 188 N. Y. Supp. 251; Mead v. Mead,
      122 Mise. Rep. 175; Schoelkopf v. Coatsworth, 166 N. Y. 77; Gh'Ilett v. Bank of America, 160 N. Y. 549; Burritt v. Burritt, 29 Barb. 124.) The word “ alimony,” while including a provision for the support of a wife, in its broad sense means also an award for the support of a child or children. (Schafer v. Schafer, 118 Mise. Rep. 254; Harris v. Harris, 259 N. Y. 334; Goldberg v. Goldberg, 236 App. Div. 258; Holahan v. Holahan, 234 App. Div. 572; Comfort v. Comfort, 227 App. Div. 1; Rosenblatt v. Rosenblatt, 209 App. Div. 373; Seitz v. Seitz, 192 App. Div. 924; Chadwick v. Chadwick, 170 App. Div. 328; Skidmore v. Skidmore, 160 App. Div. 594;. Weingarten v. Weingarten, 133 Mise. Rep. 681; 225 App. Div. 745; Gatto v. Gatto, 261 N. Y. Supp. 454; Cesáreo v. Cesáreo, 134 Mise. Rep. 88; Faye v. Faye, 131 Mise. Rep. 388.) During the period of nearly twelve years which elapsed between the execution of the separation agreement. and the commencement of the action, plaintiff admitted repeatedly that it was intended by the agreement that the yearly" allowance of $15,000 was to include provision for the daughter’s general support. These admissions were not oral, tentative or capable of explanation. On the contrary, they are a matter of record and speak for themselves. (City of New York v. New York City Ry. Co., 193 N. Y. 543; Carthage T. P. Mills v. Village of Carthage, 200 N. Y. 1; Morehouse v. Woodruff, 218 N. Y. 494; Brooklyn Public Library v. City of New York, 250 N. Y. 495; Matter of Koenig v. Flynn, 258 N. Y. 292; 285 IT. S. 375.)
   Crane, J.

The parties to this action, husband and wife, entered into a separation agreement, dated October 21,1916. Both parties were represented by distinguished lawyers, and the agreement bears evidence of the fact that it was prepared with great care to provide for all contingencies and to fix finally the rights of the respective parties, including the obligations of the husband. There were two children, issue of the marriage, a boy and a ^irl, and the agreement provides for their care, keep and welfare. It would indeed be difficult to give a reason for such an agreement if it were not that the parties desired and intended to fix definitely their relative rights, and the husband to know his full and complete obligations. This is the reason for employing lawyers and paying them to give advice and draw papers. The work has been done so well that the agreement has stood unchallenged for nearly seventeen years, and even now there is no attempt to modify any of its provisions.

The agreement, in substance, provides as follows: The child, Albert Clayburgh, is to reside with the father. Of course the father assumes his support. The child, Evelyn Clayburgh, is to reside with the mother, and we would naturally expect the agreement to provide money enough to support them both, or to state to what extent the father would be liable for the daughter’s support. No lawyer of any parts would leave this matter open for dispute.

The support of the wife and daughter and the limit of liability or obligation were the main, or only things the agreement was to deal with. Thus we find that both parties agreed that the children shall be brought up in a proper moral environment. The father provides for the medical attendance in case his daughter requires it, for a nurse, if necessary, and reserves to himself the right to select the school for her education. No neglect of the child upon the part of the father is at all apparent. He is mindful not only for her material but for her mental and spiritual welfare. And then we find, following all these safeguards for the daughter and her welfare, a money allowance made to the mother, with whom the child was to make her home. For a young child living with her mother, there being but two of them, the most unnatural thing would be to make a separate allowance for the mother and a separate allowance for the child. As the mother, guardian, would look after her daughter and provide the comforts and necessaries of the one home, the amount paid her by the husband would be expected to cover both. Thus we find paragraph X, stating just what the money is for and what additional obligations, if any, the father assumes for bis daughter:

X. The party of the first part agrees that he will pay or cause to be paid to the party of the second part, so long as she may live and not remarry, during the lifetime , of the party of the first part, the sum of Fifteen thousand dollars ($15,000) per year, and in the event of the decease of the party of the first part, thereafter the sum of Ten thousand dollars ($10,000) per year, in equal monthly instalments on the first day of each and every month, in lieu of alimony and in full for her support and maintenance. Such payments shall be made to the party of. the second part in the City of New York or at any bank or trust company in the City of New York designated by the party of the second part. Upon the death or remarriage of the party of the second part, such payments shall at once cease and determine. In addition to the said payments the party of the first part will also pay the salary of the nurse, the medical attendance and the school expenses for the child Evelyn Clayburgh as hereinabove provided. The party of the second part agrees that she will accept the said sum hereinbefore agreed to be paid for her maintenance and support and the other terms and conditions of this agreement as hereinbefore set forth, and agrees that she will not at any time in the future contract or incur any debts or obligation upon which the party of the first part or his estate might or could be held liable or called upon to pay. * * * Upon payment by the party of the first part of the sums in this agreement provided to be paid by him, there shall be no further obligation upon him under this agreement or otherwise, or in any contingency whatsoever, to make any paymeiits or disbursements either to the party of the second part or for her use and benefit, or to any other party for her account or for her maintenance and support.”

Separation agreements are to be read like any other agreements. The husband gives his wife $15,000 a year for her support. The little girl is to five with her. And in addition ” he agrees to pay the salary of the nurse, to pay for the medical attendance and for the school expenses for the child, and nothing more. The wife agrees that when he has paid these amounts he will not at any time be called upon to pay anything more. The specific words are, “ Upon payment of the sums provided there shall be no further obligation upon him in any contingency whatsoever.” Now the appellant would say that the agreement is meaningless; that there are other things “ in addition ” which the husband should pay; he should pay the wife for the support and maintenance by her of the child. She never thought of this during all of these years until 1928, and naturally only seeks to recover for the last six years, the rest' of the claim being barred by the Statute of Limitations. Such belated action" would be a strong indication in any other class of litigation that the claim is an after-thought and that she herself or her advisers never thought before 1928 that her agreement could possibly sustain such a claim.

To us this agreement is clear and needs no jury to assist the court in its interpretation.

The judgment should be affirmed, without costs.

Crouch, J. (dissenting).

We are dealing here solely with the construction of a written agreement. That construction may have no aid from any extrinsic facts appearing in the evidence. The intent of the parties and the import of their agreement must be drawn only from the language of the instrument itself. No where' within the four corners of that instrument can be found a plain and unambiguous statement that plaintiff was to support the daughter out of her own allowance.

In 1916, the parties then having two children, a son eight years old and a daughter one year old, entered into a separation agreement. After making the usual provision for separation and for living apart, the instrument provided that the son should reside with the father and the daughter with the mother; that the environment of the children should conserve their health, morals and proper development; that the domicile of the children should be the State of New York, from which neither could be removed except upon written consent; that certain rights of visitation should exist under specified conditions; that neither parent should do or say anything which might tend to diminish the love and respect of each child for both parents; that the wife should maintain out of the provided allowance a residence for herself; that a list of unpaid bills to date should(be furnished by the wife and paid by the husband, together with a reasonable fee to the wife’s counsel. The provisions relating -to support and maintenance are as follows:

“ X. The party of the first part agrees that he will pay * * * to the party of the second part, so long as she may five and not remarry, during the lifetime of. the party of the first part, the sum of fifteen thousand dollars ($15,000) per year, and in the event of the decease of the party of the first part, thereafter the sum of ten thousand dollars ($10,000) per year * * * in lieu of alimony and in full for her support and maintenance. * * * Upon the death or remarriage of the party of the second part, such payments shall at once cease and determine. In addition to the said payments the party of the first part will also pay the salary of the nurse, the medical attendance and the school expenses of the child Evelyn Clayburgh as hereinabove provided. The party of the second part agrees that she will accept the said sum hereinbefore agreed to be paid for her maintenance and support and the other terms and conditions of this agreement as hereinbefore set forth, and agrees that she will not at any time in the future contract or incur any debts or obligation upon which the party of the first part or his estate might or could be held liable or called upon to pay. * * * Upon payment by the party of the first part of the sums in this agreement provided to be paid by him, there shall be no further obligation upon him under this agreement or otherwise, or in any contingency whatsoever, to make any payments or disbursements either to the party of the second part or for her use and benefit, or to any other party for her account or for her maintenance and support.”

The provision in the above paragraph, relating to payments for nurse, medical attendance and schools for the daughter, must be read in connection with other provisions of the contract dealing with the same matters. It was provided, in substance, (a) that the daughter’s medical care should be entrusted to a specialist in such matters, who in the first instance should be a designated doctor, but whose successor was to' be chosen, not by either parent, but in a manner specified; (b) that a woman experienced in the care of children should at all times be employed as a nurse, and if a successor of the then acting nurse were to be chosen, the choice was to be made in the manner specified, with which neither parent had anything to do. In the event of a difference of opinion between mother and nurse as to the child’s care, a medical referee was named; (c) the husband was to have the right to nominate three schools, one of which the wife might select for the daughter.

It seems obvious enough that the express agreement of the husband to pay these charges was made to settle in advance any question as to whether such extraordinary items were necessaries; and, further perhaps because it gave the husband a desired measure of control.

It is clear that there was no express or specific provision made with reference to the general support and maintenance of the daughter. Had the distinguished lawyers who prepared this document intended that the annual payment of $15,000 was to cover the support and maintenance of the child, as well as of the wife, it would have been a simple matter to say so. What we find, however, is an iteration and reiteration of the plain statement that the allowance was intended for the support of the wife — “in lieu of alimony, and in full for her support and maintenance; ” “to be paid for her maintenance and support;” “for her use and benefit;” “ for her account or for her maintenance and support.” Moreover, the agreement by the wife, to which attention is called in the prevailing opinion, that she would not at time in the future contract any debts upon which the husband might or could be held hable, can only be read by reason of the context as referring to debts contracted upon her own personal account. So also the provision that upon payment by the husband of the sums provided for there should be no further obligation upon him to make any payments or disbursements. The payments or disbursements referred to are expressly defined as being those for the use and benefit of the wife alone. Moreover, it is to be borne in mind that when the agreement was made the daughter was an infant one year old. -It"is quite unlikely that either party to the contract contemplated a gradual diminution of the wife’s allowance in taking care of the increasing expenses of the daughter as she grew through girlhood and into young womanhood. Upon the husband rested the common-law' liability to support the daughter. He ought not to be permitted as matter of law to shift that responsibility to his wife except by an agreement expressed in the clearest terms. The contract, of course, is to be considered as a whole. The matters referred to in the prevailing opinion are to be given whatever weight they are entitled to. At most, as it seems to me, they serve only to cast some doubt upon the intent of the parties and the import of their agreement as expressed in the unambiguous phraseology above referred to. What we have at best, then, is a case for the jury, where the doubtful meaning of the written word may be considered in the light of evidence showing the surrounding facts and circumstances. (Braxton v. Mendelson, 233 N. Y. 122, 124; Brainard v. New York Central R. R. Co., 242 N. Y. 125, 133.)

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

Lehman, Kellogg and O’Brien, JJ., concur with Crane, J.; Crouch, J., dissents in opinion in which Pound, Ch. J., concurs; Hubbs, J., not voting.

Judgment affirmed.


author: Pound, Ch. J.

text:
    In the Matter of the Estate of Ancil Greenberg, Deceased. George Shapiro, as Executor of Ancil Greenberg, Deceased, et al., Appellants; Lena Greenberg, Respondent.
    (Argued March 1, 1933;
    decided April 18, 1933.)

      Charles F. Hulseman, William B. Chambers, Bessie ■ Goldstein and William Stanley Miller for George Shapiro, as executor of Ancil Greenberg, deceased, appellant.
    The will, executed prior to the effective date of section 18 of the Decedent Estate Law (Cons. Laws, ch. 13), is not within the purview of the statute. The codicils executed after the effective date of the statute do not re-execute the will. (Osburn v. Rochester Trust & Safe Deposit Co., 209 N. Y. 54; Matter of Francis, 73 Mise. Rep. 148; Sisters of Charity v. Kelly, 67 N. Y. 409; Matter of Cunnion, 201 N. Y. 123; Bloodgood v. Lewis, 209 N. Y. 95; Viele v. Keeler, 129 N. Y. 190.) To hold that the execution of the codicils brings the entire testamentary structure within the operation of section 18 of the Decedent Estate Law would work a partial revocation of the will not contemplated by that section and in unlawful conflict with section 34 of the Decedent Estate Law. (Hard v. Ashley, 117 N. Y. 606; Pierpont v. Patrick, 53 N. Y. 591.) The execution of the codicilsJafter the effective date of section 18 of the Decedent Estate Law does not bring the unrevoked provisions of the will within the operation of the statute. (Matter of Farmers’ Loan & Trust Co., 138 App. Div. 121; 199 N. Y. 569; Carl’s Appeal, 106 Penn. St. 635; Matter of Sloan, 168 Penn. St. 422; Matter of Hamilton, 74 Penn. St. 69; Matter of Darlington, 289 Penn. St. 297; Matter of Bingaman, 281 Penn. St. 497; Matter of Bickley, 270 Penn. St. 101.)

      Frederick A. Keck, as special guardian for Mildred Greenberg et al., appellant.
    The decedent died after August 31, 1930, but did not leave a will thereafter executed within the terms of section 18 of the Decedent Estate Law. (Osburn v. Rochester Trust & Safe Deposit Co., 152 App. Div. 235; 209 N. Y. 54; Matter of Cunnion, 201 N. Y. 123; Brown v. Clark, 77 N. Y. 369.)

      Abraham L. Bienstock and Max D. Steuer for respondent.
    In construing section 18 of the Decedent Estate Law the word “ codicil ” is synonymous with the word “ will ” by expressed definition in the Decedent Estate Law, and on the theory .of republication. (Osburn v. Rochester Trust & Safe Deposit Co., 209 N. Y. 54; Matter of Miller, 119 Mise. Rep. 4; Woollcott v. Shubert, 217 N. Y. 212; Mitchell v. Schroeder, 94 Mise. Rep. 270; 174 App. Div. 857; McLean v. United States, 226 U. S. 374; Matter of Brann, 219 N. Y. 263; Matter of Simeone, 141 Mise. Rep. 737; Caulfield v. Sullivan, 85 N. Y. 153.) The decree appealed from fulfills the purpose of the statute to prevent disinheritance of widows and to secure provision for them. (Freeman v. Ramsay, 189 N. C. 790; Matter of Bergdorf, 206 N. Y. 309; Archer y. Equitable Life Assur. Soc., 218 N. Y. 18; Matter of Gorden, 172 N. Y. 25; Root v. Stuyvesant, 18 Wend. 256; St. John v. Andrew Institute, 117 App. Div. 698; Matter of Gaffken, 197 App. Div. 257.)
   Pound, Ch. J.

Ancil Greenberg, the testator, died in Kings county, February 16, 1931. He left a widow and five children. He also left a will, dated December 21, 1927, a codicil thereto dated October 30, 1930, and another codicil dated January 3, 1931. The will and codicils were admitted to probate. No provision wás made in the will for the widow except a legacy of one dollar coupled with an expression of disappointment in her failure to establish for testator a blissful and contented home.” The widow gave, notice of election to take her share of the estate as in intestacy, as provided by section 18 of the Decedent Estate Law (Cons. Laws, ch. 13). The Surrogate’s Court sustained her contention. The Appellate Division affirmed.

The Decedent Estate Law (Laws 1929, ch. 229, § 18, par. 1) provides: “ Where a testator dies after August thirty-first, nineteen hundred and thirty, and leaves a will thereafter executed and leaves surviving a husband or wife, a personal right of election is given to the surviving spouse to take his or her share of the estate as in intestacy,” subject to limitations not bearing on this question.

It also provides (§ 2): “ The term will,’ as used in this chapter, shall include all codicils.”

The appellant contends that as the “ will ” herein was executed prior to August 31, 1930, section 18 of the Decedent Estate Law does not apply for the reason that the codicils executed after the effective date of the statute did not re-execute the will. In Osburn v. Rochester Trust & Safe Deposit Co. (209 N. Y. 54, 56) it was held that while a will and existing codicil are to be regarded as a single and entire instrument for the purpose of determining testamentary intention and disposition, the destruction and revocation of a codicil to the will does not necessarily or ordinarily operate as a revocation of the will. It may be conceded that the will and the codicils are separate papers so that one may stand although the others fall, but when all are admitted to probate as the last will and testament of the testator the effect of the codicils is to republish the will and make it speak from the new date in so far as it is not altered or revoked by the codicil. (Matter of Campbell, 170 N. Y. 84, 87; Matter of Brann, 219 N. Y. 263, 268.) This principle is well established. In section 18 of the Decedent Estate Law the word “ will ” is used in that sense. The " will ” here probated includes the codicils. The will was, therefore, re-executed as to the date of the latest codicil and the widow’s right of election exists. The execution of a codicil is tantamount to the execution of a will. Such was the meaning of the Commission on Revision of the Law of Estates as appears by their explanatory notes.

Cases having to do with bequests to charity lawfully made by the terms of the will are cited from other jurisdictions. (Carl’s Appeal, 106 Penn. St. 635; Estate of McCauley, 138 Cal. 432.) It stands within reason to say that such bequests are not invalidated by the mere execution of a codicil within the prohibited period before the testator’s death. The policy of the law that such bequests should not be made near the end of a man’s life would be defeated by such a ruling when the testamentary purpose is revealed as of long standing. Here, however, the purpose of the Legislature was the protection of the widow. After September 1, 1930, the absence of protection to the widow under prior laws gave way to the widow’s right of election to take a specific part of the estate against the will. The inconsistency in our old law which compelled a man to support his wife during his lifetime and permitted him to cut her off with a dollar at his death, has given way to a new public policy which no longer permits a testator to dispose of his property as he pleases.

The new law provides against and prevents unjust provisions, cutting off the widow from her share of the estate, but it does not leave open the question whether the wife has offended her lord and master. It makes no rule for the individual case. Proper provision must be made for the widow where the statute is applicable. The right of election may not be available to her in certain eases of divorce and separation (Decedent Estate Law, § 18, pars. 3 and 5), but no exception takes care of this case.

The new policy is so well defined that we would be doing violence not only to the meaning of plain language but also to the legislative intent, if we said that the testator did not re-execute the will within the meaning of the statute when he executed the codicils. To so hold would permit a testator who had made a will prior to September 1, 1930, to make as many new wills after that date as he saw fit, preserving the original instrument only to enable him to make no provision for his widow.

The order should be affirmed, with costs.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v. Francis H. Reddy, Appellant.

      (Argued March 7, 1933;
    decided April 18, 1933.)

      Harry G. Anderson, Joseph H. Stein and Samuel S. Leibowitz for appellant.
    It was reversible error for the trial court to charge the jury that they might consider as corroborative of Baumann’s testimony that he had a stronger motive to implicate the defendant than an innocent man. (People v. Hooghkerk, 96 N. Y. 149; People v. Dixon, 231 N. Y. Ill; Rex v. Baskerville, [1917] 86 K. B. 28; People v. Everhardt, 104 N. Y. 591; People v. Elliott, 106 N. Y. 288; People v. Conroy, 97 N. Y. 62; People v. Plath, 100 N. Y. 590; People v. O’Farrell, 175 N. Y. 323; People v. Courtney, 28 Hun, 589.) The People’s proof as to the defendant’s alleged flight was not sufficient to warrant the submission of the case to the jury. (People v. Gluck, 188 N. Y. 167; People v. Cashin, 259 N. Y. 434; Commonwealth v. Roland, 8 Phila. 606; People v. Fiorentino, 197 N. Y. 560; People v. Stilwell, 244 N. Y. 196; Hickory v. United States, 160 U. S. 408; People v. Jones, 160 Cal. 358; Ryan v. People, 79 N. Y. 593; Matter of Case, 214 N. Y. 199; People v. Razezicz, 206 N. Y. 249; People v. Kennedy, 32 N. Y. 141.)

      Thomas C. T. Crain, District Attorney (Robert C. Taylor of counsel), for respondent.
    Suspicious conduct upon the part of a defendant such as flight, furnishes adequate corroboration of an accomplice. (State v. Taylor, 196 Iowa, 1015; State v. Van Winkle, 80 Iowa, 15; State ex rel. Biggs v. Mackey, 250 Pac. Rep. 744; People v. Taylor, 232 Pac. Rep. 998;' People v. Armstrong, 114 Cal. 750 Knox v. State, 293 S. W. Rep. 1111; State v. St. Pierre, 238 N. W. Rep. 875.) Baumann was a vitally interested witness. Anything that tended to sustain his credibility was relevant and admissible, and constituted corroboration. (People v. Demasco, 240 N. Y. 170; People v. Courtney, 94 N. Y. 490; Baccio v. People, 41 N. Y. 265; People v. Deitsch, 237 N. Y. 300; People v. Katz, 209 N.. Y. 311; Ferris v. Sterling, 214 N. Y. 249; People v. Alex, 260 N. Y. 425; People v. Elliott, 155 App. Div. 486; People v. Patrick, 182 N. Y. 131.)
   Crouch, J.

On the night of August 6, 1931, two robbers held up a cider stube, so called, on West Forty-fourth street in the city of New York. In the course of the robbery, one of the victims was shot and killed. The robber who fired the shots was pursued and captured. • His name was Baumann. The other one escaped. Baumann and his companion, designated as John Doe, were indicted for murder in the first degree. Baumann was tried and convicted as charged. The judgment of conviction was affirmed by this court (People v. Baumann, 259 N. Y. 600). Subsequently the defendant here was arrested and brought to trial as being Baumann’s companion and the person named as John Doe in the indictment. His appeal is from a judgment of conviction for murder in the first degree. That conviction was had upon the testimony of Baumann. Unless Baumann be corroborated by other evidence tending to connect the defendant with the commission of the crime, the conviction must be set aside. (Code Crim. Pro. § 399.)

Baumann testified that he was twenty-one years of age and had known the defendant Reddy, who was commonly called Howie,” for five or six years, although he had seen little of him during the year preceding the murder; that on the afternoon of the murder he had driven with Reddy from Keansburg, New Jersey, where they had both been staying for several days; that after they reached New York, Reddy suggested that they join in a hold-up, to which Baumann agreed; that they separated with an understanding that they would meet at Tenth avenue and Forty-ninth street at seven o’clock in the evening, Reddy in the meantime to get pistols and arrange for the use of a taxicab; that they met at the time and place stated, boarded a taxicab and drove off; that Reddy gave witness a pistol and some extra cartridges; that the taxicab stopped at Forty-fourth street about six doors from Ninth avenue; that Reddy alighted from the taxicab, followed by the witness, the motor being kept running; that the witness took out his pistol, opened the door and went into the cider stube, followed by Reddy; that they ordered the people in the place to put up their hands and go to the rear of the store; that Reddy did most of the searching while the witness kept the victims covered with his pistol; that when the cash register had been rifled and the pockets of the victims searched, Reddy stepped past the witness saying, Come on, let’s go,” and proceeded rapidly toward the front door; that as witness turned to follow, Munich, one of the victims, grappled with him; that at that time Reddy was close to the front door; that witness shouted out, “ Wait a minute, Howie, this guy has got me,” but Reddy proceeded out; that the struggle between witness and Munich ended after a short time with the firing of three shots, after which Munich fell away from the witness, whereupon the witness ran out and saw the taxicab turning into Ninth avenue; that the witness never saw Reddy again until the trial.

It further appears that when Baumann was searched, following his capture, there was found on him a small photograph of Reddy. He repeatedly denied that that was a photograph of the man who was with him; on the contrary, he asserted that his companion was an Italian fellow.” Baumann’s conviction was affirmed by this court on June 1, 1932, and his execution was set for July 14,1932. Within a few hours of the time set for execution, Baumann made a statement which for the first time implicated Reddy. A reprieve of twenty-four hours resulted, during which the district attorney took a statement from Baumann. A second reprieve put off execution until the night of August 18th. The statements which Baumann had made were not wholly true, and it was not until almost the moment of execution on the night of August 18th that Baumann sent for the district attorney and made still another statement which apparently satisfied that official. A further reprieve was thereupon granted to cover the time of Reddy’s trial. After that trial Baumann’s sentence was commuted to life imprisonment. Baumann on this trial asserted that his testimony on his own trial and all statements made by him relating to the identity of his companion had been intentional and deliberate lies for the purpose of shielding Reddy. He frankly admitted that he finally implicated Reddy and became a witness for the People solely to save his own life, and to that end he would not hesitate to lie. The defendant did not take the stand.

Here, then, is a typical case of conflict between the public need of bringing to justice one against whom suspicion of guilt exists, and the individual right of the suspect to be safeguarded within the law against the effect of tainted evidence. We are to examine the record and say whether or not the testimony of Baumann, the accomplice, was so far corroborated within the rule of faw, that the conviction may safely and justly stand.

The law of corroboration under section 399 of the Code of Criminal Procedure was concisely but comprehensively stated in People v. Dixon (231 N. Y. 111, 116). The corroborative evidence,” said the opinion, “ need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime. (People v. Mayhew, 150 N. Y. 346, 353; People v. Cohen, 223 N. Y. 406, 426.) It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth.” Since the web of proof in every case is unique, corroboration “ may vary in its nature according to the circumstances of the particularcase.” (Id.) When the trial judge finds that there is some corroborative evidence, it is his duty to submit it “to the jury for them to say first, whether it was worthy of belief, and secondly, whether if true it tended to connect defendant with the commission of the crime.” (Id. 117.)

The learned trial judge found the possibility of corroboration in evidence relating to two matters. One was the alleged flight of defendant following the crime; the other was Baumann’s stronger motive for implicating as his companion in crime the man actually guilty, rather than one who was innocent. Accordingly, he submitted to the jury the evidence relating to each of these matters, to say whether it was true, and, if so, whether it tended to connect the defendant with the commission of the crime.

In respect to the matter of the stronger motive, the argument was that Baumann would naturally feel resentment against the man who, instead of responding to his appeal for help, had deserted him and fled in the taxicab with all the loot, leaving him to be hunted through the streets and captured; and hence that his testimony incriminating the defendant was credible in spite of the admitted character and interest of Baumann. So the trial judge charged the jury as follows: If you find that that contention has merit, you may consider whether that is corroborated by the evidence of the other witnesses. * * * You have heard the testimony of several of the witnesses who were in the place, and of the officers. It is for you to say whether they establish, apart from Baumann, that the other man did escape, did get away in a taxicab, and that Baumann, in consequence of having no taxicab to get into, was captured. If you find that their testimony corroborates Baumann on the question that his accomplice abandoned him, thereby furnishing Baumann with a motive to testify truthfully against the accomplice, you may consider whether that is evidence that tends to connect this defendant with the crime; that is, to show that this defendant is that unknown man that escaped, and that the unknown man was not some other man, some guilty man whom Baumann is shielding.”

The testimony of the non-accomplice witnesses to which the charge referred was merely to the "effect that the robbery was committed by two men; that one of them escaped, probably in a taxicab, leaving the other struggling with Munich; and that Baumann was captured. None of these witnesses was able to identify the defendant. On the other hand, one of them testified that Baumann’s companion was noticeably heavier and stouter than the defendant. None of them, moreover, testified to hearing Baumann’s alleged call for help, “ Wait a minute, Howie, this guy has got me.” Clearly there is nothing in this testimony tending directly or circumstantially to connect the defendant with the commission of the crime. All that it does and all that can be claimed for it, is to give support to some of the facts — and those not the most essential — testified to by Baumann, from which one might infer the existence of resentment, and hence a motive, on the basis of which the truth of Baumann’s accusation against the defendant might be conjectured. At the end of that chain, one still has nothing but Baumann’s word that his companion was the defendant. There is nothing in the testimony of these witnesses pointing to the defendant’s connection with the crime which would not with equal weight point to anybody else whom Baumann might have named. While this testimony was relevant and was corroborative of certain circumstances relating to the crime, it had no tendency, as we think, to connect the defendant with its commission. Its submission to the jury on that theory was, therefore, error.

In respect to the matter of flight, the general rule is well settled. Evidence of flight, concealment or analogous conduct is always admissible. From of old, when unexplained, it has been deemed indicative of a consciousness of guilt, and hence of guilt itself. (Proverbs, chapter XXVIII, 1; People v. Ogle, 104 N. Y. 511, 514; People v. Florentino, 197 N. Y. 560, 567; Hickory v. United States, 160 U. S. 408.) But “ ordinarily it is of slight value, and none whatever unless there are facts pointing to the motive which prompted it.” (People v. Fiorentino, supra; People v. Stilwell, 244 N. Y. 196, 199.) Its consideration, as pointed out long ago, should not be pressed too far. (Commonwealth v. Webster, 5 Cush. 295.) To the extent that it is evidence of guilt itself, it must be taken as corroborative of an accomplice’s incriminating testimony. (Cf. State v. Taylor, 196 Iowa, 1015; People v. Duffy, 160 App. Div. 385.)

There is testimony by a police detective that on the night of the crime he began efforts to locate defendant and continued such efforts for several months. It is not entirely clear whether he was looking for this particular defendant, knowing him to be Reddy, or merely for some one whose face resembled the face in the photograph found on Baumann. There is also testimony by other detectives and policemen of efforts to find Reddy after Baumann had implicated him. From July 18 to August 20, 1932, when he was arrested, they looked for him at 100 Pilling street, Brooklyn, and at Keansburg, New Jersey; also around Lexington avenue from One Hundred and Tenth to One Hundred and Seventeenth streets, and along the upper west side. That those were known haunts of Reddy is not satisfactorily shown. A flat on West One Hundred and Eightieth street was under observation for two days. On August 20, 1932, Reddy with two other men was seen to come out. He was followed to premises on One Hundred and Sixtieth street, where he was arrested. Reddy had been living there, but for how long and in what manner does not appear. The only testimony which may be said to have significance was given by a parole officer under whose supervision Reddy was. To him Reddy was required to report twice a month. During April, May, June and July, 1931, the reports were duly made. The next report was to be on August 11, 1931. It was not made, nor did Reddy ever thereafter report. The parole officer at once tried unsuccessfully to find Reddy in certain reputed haunts. Since the crime was committed on August 6, 19314 the evidence would warrant a finding that within five days after the crime, Reddy disappeared from his usual haunts and broke his parole. While it was of slight value at best, this evidence of flight or concealment was admissible and relevant upon the main issue of guilt, if there were facts pointing to this crime as the motive which prompted it. Such facts appear in the testimony of Baumann. Whether, being thus in the case, that evidence was corroborative, is another question. Since its only value depended upon the word of Baumann, it is difficult to see how it could be said to corroborate Baumann. But even granting that it could, we are of the opinion that its tendency to connect the defendant with the commission of the crime was so inherently weak and inconclusive as to furnish no reasonable ground for a finding by the jury that the accomplice was telling the truth.

The judgment of conviction should be reversed and a new trial ordered.

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

Judgment reversed, etc.


author: Kellogg, J. Crane, J. (concurring in result).

text:
    Josie A. Potter, as Administratrix of the Estate of Charles N. Potter, Deceased, et al., Appellants, v. New York, Ontario and Western Railway Company, Respondent.
    (Argued March 8, 1933;
    decided April 18, 1933.)

      Crandall Melvin for appellants.
    The Appellate Division was in error in holding that the letters are as a matter of law a lease between defendant and the coal company, under the terms of which no duty or obligation was upon the defendant to make repairs. (Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86; Quinn v. Staten Island R. T. Ry. Co., 224 N. Y. 493.) The trial court properly submitted to the jury the question of relationship between defendant and the coal company as bearing upon defendant’s duty, if any, to plaintiff’s intestate. (Haefeli v. Woodrich Engineering Co., 255 N. Y. 442; DeLee v. Pardy Construction Co., 249 N. Y. 103; Constantino v. Watson Contracting Co., 219 N. Y. 443; Lyman v. Putnam Coal & Ice Co., 182 App. Div. 705; Quinn v. Staten Island R. T. Ry. Co., 224 N. Y. 493; Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86; Osuldsen v. D., L. & W. R. R. Co., 213 App. Div. 247; Verdini v. Interborough R. T. Co., 192 App. Div. 379.) The existence of a lease of the coal pocket does not relieve the defendant from liability. (Cuttings v. Goetz, 256 N. Y. 287; Kessler v. The Ansonia, 253 N. Y. 453; Dollard v. Roberts, 130 N. Y. 269; Trustees of Canandaigua v. Foster, 156 N. Y. 354; Golob v. Pasinsky, 178 N. Y. 458; Loucks v. Dolan, 211 N. Y. 237; Zolezzi v. Bruce-Brown, 243 N. Y. 490; Frank v. Simon, 109 App. Div. 38; Maslin v. Childs, 146 App. Div. 174; Jameson v. Keystone Warehouse Co., 210 App. Div. 212.)

      Avery S. Wright and Elbert N. Oakes for respondent.
    The ruling of the Appellate Division that the letters constituted a lease was correct. (Averill v. Taylor, 8 N. Y. 44; Pratt v. H. R. R. R. Co., 21 N. Y. 305; Cohen v. Berlin & Jones Envelope Co., 166 N. Y. 292; Petrie v. Trustees, 158 N. Y. 458; Wyllie v. Palmer, 137 N. Y. 248; Sweezy v. O’Rourke, 226 N. Y. 378.) The relation of landlord and tenant existing, even were there an express covenant to repair, plaintiff could not recover in tort for injuries caused by its breach. (Cullings v. Goetz, 256 N. Y. 287; Fiorntino v. Mason, 233 Mass. 451.) There was no evidence upon which defendant could be held hable for failure to repair the ladder. (Suydam v. Jackson, 54 N. Y. 450; Widmar v. Healey, 247 N. Y. 94; Klein v. City of Portland, 106 Ore. 686.) The trial court erred in submitting to the jury the legal relationship of the parties created by the letters, as well as their construction. These questions, as held by the Appellate Division, were matters for the court to determine and the determination reached by the appellate court was correct. (Witty v. Matthews, 52 N. Y. 512; Daly v. Wise, 132 N. Y. 306; Freiot v. Jacobs, 209 App. Div. 334; Wyllie v. Palmer, 137 N. Y. 248; Sweezy v. O’Rourke, 226 N. Y. 378.)
   Kellogg, J.

The defendant railroad was the owner of a coal trestle some twenty-five feet wide and thirty feet high. The space below the deck of the trestle was partitioned off into fifty compartments, each compartment having two of the bulkheads, used to support the trestle, as side walls. The deck of the trestle served as a roof, while the base of the trestle served as a floor for all compartments. Planking constituted the other walls, and completed the inclosures. These pockets were designed to store coal, delivered to them by the railroad, through trap doors in the deck, from coal cars stationed on tracks running along the deck. Two of these coal pockets were in the occupation óf the J. E. Hawley Coal Company, under lease or license from the defendant railroad. On a certain day the defendant delivered coal into one of the Hawley pockets, and,, the Hawley Company was unloading into trucks, on the outside of the trestle, through a shute which passed through the side wall of the pocket. The coal lodged and it became necessary to dislodge it with shovels. Several men, employed by the Hawley Company, entered the trestle for this purpose. One of these men was Charles N. Potter, who made entrance to the pocket through the trap door in the deck of the trestle, and descended to the floor by means of a ladder, fastened to the bulkhead wall at points which placed the ladder just under the opening. After working for a time, Potter, attempting to make his exit, climbed the ladder, which broke from its fastenings, and precipitated him to the floor of the pocket causing his death.

The widow of Potter filed a claim against the J. E. Hawley Coal Company, the employer, and its insurance carrier, and received, an award of death benefits. The award, paid by the carrier, operated to transfer any cause of action, held by the widow against the defendant railroad company, for negligent maintenance of the coal pocket, to the carrier. Accordingly, this action in negligence was brought, on behalf of the carrier, to procure damages for the death of Potter. A verdict was recovered at Trial Term. The Appellate Division reversed, and ordered a new trial. The plaintiff, having stipulated for a judgment absolute, has appealed to this court. For the purpose of the discussion, we will assume that, if the railroad owed a duty of care to Potter, it had breached that duty in not fastening the ladder more securely.

Liability for injuries or death, suffered by a visitor to dangerous structures or premises, arises from occupancy, not from ownership. The occupant having exclusive possession may forbid entrance to all visitors, in which case, with some exceptions, no duty of care arises, and the visitor may not complain if injured. On the other hand, the occupant, having such possession, alone may give an invitation, or grant permission to make entry. In that case a duty of care does arise to bind the occupant, the nature and extent of which depends upon the character of the visitor, as determined by the invitation or permission extended. Thus,' the duty of active care to make the premises safe is owed to an invitee, or business visitor; whereas the duty of disclosing or eliminating a known danger is the measure of the duty owed to a gratuitous licensee. As no duty whatever arises except through invitation or permission, and the measure of that duty depends upon whether there has been given the one or the other, ordinarily the duty of care, if any, binds no other than the occupant, who alone has power to invite or license. This may be subject to some exceptions such as when the owner leases dangerous premises knowing that the tenant will invite the public to visit the same. However, generally speaking, the owner, having parted with possession, and lost power to exclude or to invite, cannot be hable if the visitor be injured. These principles are universally acknowledged to be the law upon the subject. (Salmond on the Law of Torts, p. 452; The Law of Torts, Pollock [13th ed.], p. 527; 3 Shearman & Redfield on the Law of Negligence, § 704; Am. Law Inst. Restatement of the Law of Torts, §§ 212, 213, 227; Haefeli v. Woodrich Engineering Co., 255 N. Y. 442; Cullings v. Goetz, 256 N. Y. 287.) “ The person responsible for the condition of the premises is he who is in possession of them for the time being, whether he is the owner or not. For it is he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons.” (Salmond, supra, pp. 445, 446.) The power of control, necessary to raise the duty of care, “ implies the power and the right to admit people to the premises and to exclude people from them.” (Cavalier v. Pope, [1906] A. C. 428, 433.) In the case of a tenant’s possession under a lease, the landlord is not liable, even though he assumes the duty to repair the premises. (Cullings v. Goetz, supra.) In that case Chief Judge Cardozo stated: “ Liability in tort is an incident to occupation or control;” (p. 290). “By preponderant opinion, occupation and control are not reserved through an agreement that the landlord will repair; ” (Id.) “ The tenant and no one else may keep visitors away till the danger is abated, or adapt the warning to the need; ” (Id.) The landlord has at most a privilege to enter for the doing of the work, and at times not even that if the occupant protests.” (Id.)

The relationship between the Hawley Coal Company, the occupant of the pocket in question, and the defendant owner, is determined by the terms of two letters exchanged between them. Hawley wrote asking for the consent of the defendant that it might take over the lease of a previous occupant “ at the present rental charge of 10 (10¡¿) cents per gross ton for all coal handled through said pockets.” The defendant answered, saying: “ You have my authority and approval to occupy these coal pockets ” at the rental named. If we were to follow the decision in the old case of Wood v. Lake (Sayer’s Reports, p. 3), which' has been much discussed, we should doubtless be compelled to hold that the relationship of landlord and tenant did not exist between the defendant and the Hawley Coal Company. It was held in that case that when an owner orally stipulates with another that for a period of seven years that other may stack coal upon the owner’s land, there is not a lease but a license, and no writing is required by the Statute of Frauds. In Kent’s Commentaries ([14th ed.] vol. 3, p. 715), where Wood v. Lake is discussed, there is a note to the following effect: If the agreement gives a right of exclusive occupation, and the landlord has nothing to do on the land, it is more than a license.” However, it is unnecessary to determine whether or not the letters in question created a tenancy. As we have seen, the liability of the occupant or the owner is determined by the nature of the occupancy, and the invitation or license extended. If possession and control were exclusively in the Hawley Coal Company, whether its occupancy and control was by virtue of a lease or a license, the owner defendant would not be Hable.

For many years the Hawley Coal Company occupied the coal pocket for its own exclusive use. It alone deposited and stored coal in the compartment set apart for it. There can be no doubt that the parties intended that the Hawley Company should have the exclusive right so to store coal. Daily, Hawley’s men entered the pocket through the trap door in the deck of the trestle, and did work therein. The railroad men, so far as the record shows, never entered the pocket, except on rare occasions to make needed repairs. That they so entered was not sufficient to indicate that the railroad reserved a measure of control over the pocket, or retained power to forbid or permit visitors to make entry thereto. (Cullings v. Goetz, supra.) In that case there was assumed “ The possibihty of so phrasing and enlarging the rights of the lessor that occupation and control will be shared with the lessee.” There was no such phrasing of the letters which passed between the occupant and the owner.

The order should be affirmed, and judgment absolute ordered against the appeUant on the stipulation, with costs in aU courts.

Crane, J. (concurring in result).

I concur in the result. The court charged the jury: Now the claim of the plaintiff is that the wrongful act of the New York,' Ontario and Western Railway Company, which caused the death of Mr. Potter, was its failure to erect the ladder in this coal pocket in which he was working at the time originally in a reasonably safe condition for the use for which it was intended, and also their failure to maintain that ladder in a reasonably safe condition for use, and unless you find that fact to be true there cannot be any recovery for the plaintiff in this ease.”

There is no evidence that the ladder was not constructed originally in a proper way or that it afterwards became out of repair before the day of the accident, June 7, 1928. In fact, all the evidence sho.ws that the men using the ladder on the day of the accident found it safe and noticed no defects. At the time the deceased fell the ladder had pulled away from its fastenings evidently causing the accident. No notice of any loose or defective condition came to the knowledge of the owner or lessee either actually or constructively.

For these reasons I am for affirmance.

Pound, Ch. J., O’Brien and Crouch, JJ., concur with Kellogg, J.; Crane, J., concurs in result in memorandum; Lehman, J., concurs in result; Hubbs, J., not sitting.

Ordered accordingly.


text:
    In the Matter of J. B. Lyon Company, Appellant, against Frank L. Morris, as Superintendent of the Division of Standards and Purchase of the State of New York, et al., Respondents.
    (Argued April 13, 1933;
    decided April 25, 1933.)

      Rollin B. Sanford and John T. DeGraff for appellant.

      John J. Bennett, Jr., Attorney-General {Henry Epstein of counsel), for respondents.
    Petitioner is not entitled to peremptory mandamus. (Matter of American Woman’s Realty Corp. v. N. Y. Edison Co., 145 Mise. Rep. 316; People ex rel. Equitable Life Assur. Soc. v. Chapin, 103 N. Y. 635; People ex rel. Wooster v. Maher, 141 N. Y. 330; Matter of Burr v. Voorhis, 229 N. Y. 382.)
   Pound, Ch. J.

The fundamental question which arose in this proceeding was whether it was the clear legal duty of the Superintendent of the Division of Standards and Purchase and the Secretary of State to deliver to the petitioner, J. B. Lyon Company, which held the general contract for State printing for the year July 1, 1931, to June 30, 1932, the copy of material from which it could print the election supplies for the Department of State for the election of 1932.

The State election printing for the year 1932 was done under a separate contract, let independently of the general contract, according to the custom prevailing from the year 1922 to 1931. J. B. Lyon Company had been a competitive bidder for such contracts, and a purchaser thereof from other bidders when they had received the award. The Appellate Division has held that under a practical interpretation of petitioner’s contract it was not entitled to the election printing.

As the work of election printing of 1932 has already been done, obviously mandamus as prayed for by the petitioner is no longer an appropriate remedy. If the petitioner’s contract has been broken by the State, the proper remedy is by a claim to recover damages. The abstract question of the right of J. B. Lyon Company to do the election printing under a contract which itself • expires on June 30, 1932, is not of such general interest or importance as to call for a departure from the practice not to decide questions which have become academic or abstract by lapse of time.

The question of law presented may be left undecided without serious embarrassment to any one except the petitioner. Questions affecting the entire State calling for a rule affecting numerous other transactions of a similar character and liable to arise with frequency are sometimes considered as an exception to this rule. (Matter of Norton, 158 N. Y. 130; Bush v. O’Brien, 164 N. Y. 205, 214.)

It has, however, been consistently held that only exceptional cases, where the urgency of estabhshing a rule of future conduct is imperative and manifest, will justify a departure from our general practice. (Delavan v. N. Y., N. H. & H. R. R. Co., 216 N. Y. 359.)

The appeal should be dismissed, with costs.

Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not sitting.

Appeal dismissed.


text:
    In the Matter of Ida Cantor, Appellant; Manufacturers Trust Company, Respondent.
    (Argued December 7, 1932;
    decided January 10, 1933.)

      Herman Shulman, Benjamin Algase and David L. Podell for appellant.

      Joseph M. Hartfield and John A. Gifford for respondent.
   Order of the Appellate Division and that of the Special Term reversed, with costs in all courts, and motion granted, with ten dollars costs, on the authority of Matter of Cantor (261 N. Y. 6). No opinion.

Concur: Pound, Ch. J., Lehman, Kellogg, O’Brien, . Hubbs and Crouch, JJ. Not sitting: Crane, J.


text:
    In the Matter of the Accounting of Anna M. Grace et al., as Executrices and Trustees under the Will of Mary D. Grace, Deceased, Respondents; William D. J. Grace, Appellant.
    (Argued November 21, 1932;
    decided January 10, 1933.)

      William M. Kilcullen for appellant.

      Frank J. Cregg for respondents.
   Orders affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ. Not sitting: Crouch, J.


text:
    The People of the State of New York, Respondent, v. R. J. Simpson and Mary F. Simpson, Appellants.
    (Argued November 28, 1932;
    decided January 10, 1933.)

      Leslie E. Briggs for R. J. Simpson, appellant.

      Gerald J. Fenlon and Richard P. Byrne for Mary F. Simpson, appellant.

      William H. Coon, District Attorney, for respondent.
   Judgment of conviction as to each defendant affirmed; no opinion.

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


text:
    Louis N. Osmond, Appellant, v. New York Cotton Exchange, Inc., et al., Respondents.
    (Argued November 29, 1932;
    decided January 10, 1933.)

      Harris Jay Griston, Herbert C. Smythe and Milton Seymour Cohn for appellant.

      Henry W. Taft and George Coggill for New York Cotton Exchange, Inc., respondent.

      B. F. Norris and Phelan Beale for George H. McFadden et al., respondents.

      Theodore Kiendl, Russel S. Coutant and Francis W. Phillips for M. D. Anderson et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Miriam Blumenthal, Respondent, v. Picture Classics, Inc., et al., Appellants.
    (Argued November 30, 1932;
    decided January 10, 1933.)

      David Vorhaus and Alfred Beekman for appellants.

      Jay Leo Rothschild and Harry Roter for respondent.
   Order affirmed, with costs. First question certified not answered. Second question certified answered in the affirmative. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank Van Bramer, Appellant.
    (Argued December 5, 1932;
    decided January 10, 1933.)

      Joseph M. Klein and John P. Looram for appellant.

      Thomas C. T. Crain, District Attorney (.Irving J. Tell of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Fox Meadow Estates, Inc., Appellant, against Earl C. Culley, as Building Inspector of the Village of Scarsdale, Respondent.
    (Argued December 5, 1932;
    decided January 10, 1933.)

      Frank H. Hiscock and Henry K. Heyman for appellant.

      Nathan L. Miller, Edward M. Bassett, Humphrey J. Lynch, John H. Jackson and William Cravath White for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Town of Woodbury et al., Appellants, against Matthias Nicoll, Jr., et al., Constituting the Board of Appeals, Respondents.
    (Argued December 6, 1932;
    decided January 10, 1933.)

      Percy V. D. Gott and Joseph W. Goit for appellants.

      John J. Bennett, Jr., Attorney-General (David Copans of counsel), for respondents.

      Albert T. Scharps for Jewish Consumptives’ Relief Society, amicus curia.

   Order affirmed, with costs; no opinion.

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


text:
    Martha E. Wallis, as Administratrix of the Estate of Owen R. Wallis, Deceased, Respondent, v. North American Cement Corporation, Appellant.
    (Argued December 6, 1932;
    decided January 10, 1933.)

      P. C. Dugan and Thomas J. Burke for appellant.

      James A. Leary for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Nathan L. Raymond, Appellant.
    (Argued December 6, 1932;
    decided January 10, 1933.)

      David P. Siegel, Emanuel Schoenzeit, Milton B. Season wein and Perry Ausschnitt for appellant.

      Thomas C. T. Crain, District Attorney (Joshua Egelson of counsel), for respondent.'
   Judgment affirmed under section 542 of the Code of Criminal Procedure; no opinion.

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


text:
    Hyman Pratter, Respondent, v. J. Leon Lascoff et al., Constituting the New York State Board of Pharmacy, Appellants.
    (Argued December 7, 1932;
    decided January 10, 1933.)

      John J. Bennett, Jr., Attorney-General {Henry Epstein and Harold Greenstein of counsel), for appellants.

      Joseph J. Hammer for New York State Pharmaceutical Association and the New York Pharmaceutical Conference, amicus curios.

      Charles A. Brind, Jr., for the New York State Pharmaceutical Association, amicus curios.

      Philip Halpern and Milton H. Friedman for respondent.
   Judgment affirmed, with costs, on the authority of Liggett Co. v. Baldridge (278 U. S. 105). No opinion.

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


text:
    Fields Holding Co., Inc., Appellant, v. Chanbrook Realty Co., Inc., Respondent.
    (Argued December 7, 1932;
    decided January 10, 1933.)

      Herman Shulman, Jacob J. Podell, Charles E. Rhodes and Felix S. Cohen for appellant.

      Barnet Kaprow and David L. Weissman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John G. Bishop, Appellant, v. Fremont Rider et al., Respondents.
    (Argued December 7, 1932;
    decided January 10, 1933.)

      John B. Doyle for appellant.

      Natalie F. Couch for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Stanley B. Kitzelman, Appellant, v. Pennsylvania Railroad Company, Respondent.
    (Argued December 8, 1932;
    decided January 10, 1933.)

      William J. Carr and Martin A. Schenck for appellant.

      Joseph Walker, Jr., Nathaniel T. Guernsey and Boswell P. C. May for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    David Taylor Company, Inc., Appellant, v. Fansteel Products Company, Inc., Respondent.
    (Argued December 8, 1932;
    decided January 10, 1933.)

      Lyon Boston for appellant.

      Valentine B. Havens, Neilson Olcott and Jerome Weinstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Grand Allen Holding Corporation, Respondent, v. M. & S. Circuit, Inc., Appellant.
    (Submitted December 9, 1932;
    decided January 10, 1933.)

      Bernard Fliashnick for appellant.

      Joseph A. Seidman and Albert G. Seidman for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    In the Matter of Ernest H. Nohn et al., as Executors of Emil E. Gabler, Deceased, Respondents; Ella M. Gabler, Appellant and Respondent; Norine V. Degnen et al., Appellants and Respondents.
    (Submitted December 9, 1932;
    decided January 10, 1933.)

      Raymond E. Aldrich for Norine V. Degnen, appellant and respondent.

      D. Theodore Kelly and F. Ferris Hewitt for General Hospital of Saranac Lake, appellant and respondent.

      George K. Jack for Ella M. Gabler, appellant and respondent.

      William Lesser and Hilbert I. Trachman for respondents.
   Order affirmed, with costs to all parties filing briefs payable out of the estate. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Walter L. Baker, Appellant.
    (Argued December 9, 1932;
    decided January 10, 1933.)

      John L. Moore for appellant.

      Harry E. Clinton, District Attorney {John J. Kelly of counsel), for respondent.
   Judgment reversed and information dismissed on the ground that there was no evidence of culpable negligence. (People v. Angelo, 246 N. Y. 451.) No opinion.

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


text:
    Adele Kirschenbaum, by Joseph Kirschenbaum, Her Guardian ad Litem, Respondent, v. Chester F. Oschuetz, Appellant.
    (Argued December 9, 1932;
    decided January 10, 1933.)

      Adon W. Crosby for appellant.

      Morris Weinstein and A. Gerald Weinberg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Grane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.