author: O’Brien, J. Cardozo, Ch. J.,

text:
    In the Matter of the Accounting of Elizabeth P. de G. James, as Ancillary Executrix under the Will of Amadee de G. James, Deceased, Appellant. Elizabeth B. Von der Decken et al., Appellants; Pauline A. de la Mettrie et al., Respondents.
    Debtor and creditor — judgment — comity — exequatur — French decree on exequatur directing payment of judgment obtained in this State — payment of sum in francs as directed by French decree operates as complete execution of judgment — sufficiency of release and satisfaction given by judgment creditors, to fully satisfy American judgment.
    1. A payment in obedience to a French decree on exequatur, which directed execution of a judgment obtained in this State by payment of a stated number of francs, operates as a complete satisfaction of the judgment where the creditors selected that method to enforce it and obtain the money that was due, elected their measure of value and medium of exchange and made their choice of the date upon which the dollar should be converted into francs. The American judgment having been executed in France exactly as the creditors demanded, it must be held to have been fully paid.
    2. An argument that an instrument executed and delivered by the judgment creditors upon payment of the sum in francs, as directed by the French decree, was not intended fully to satisfy the American judgment but purposed merely to release the lien of the judgment upon the judgment debtor’s property in France and to reserve the right to collect the difference between dollars and francs on the value of the American judgment, cannot be sustained, where by its terms such instrument gave “ a good and valid release ” for the sum in francs translated from the amount of the judgment in dollars, acknowledged pure and simple satisfaction and consented to the cancellation of hens against the debtor’s property in France.

      Matter of James, 221 App. Div. 321, reversed.
    (Argued February 13, 1928;
    decided April 3, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 30, 1927, which reversed as matter of law two orders of the "Ulster County Surrogate’s Court, one granting a motion of the ancillary executrix to declare satisfied a decree awarding certain sums to legatees of Amadee de G. James, deceased, and to vacate executions issued thereon and the other denying a motion to vacate and set aside the first order.

      H. H. Breland and Emory R. Buckner for appellant.
    Where two judgments are each founded upon the same debt or cause of action, payment of either satisfies both, even though they are for different amounts. (Freeman on Judgments [5th ed.], § 1126; Matter of Williams, 208 N. Y. 32; Dahlstrom v. Gemunder, 198 N. Y. 449; Cox v. Smith, 10 Oreg. 418; Woods v. Pangburn, 75 N. Y. 495; Lovejoy v. Murray, 3 Wall. 1; Foy v. Barry, 159 App. Div. 749; Breslin v. Peck, 38 Hun, 623.) The rule that payment of one judgment satisfies all judgments for the same debt is equally applicable where a French judgment has been obtained upon an American judgment. (Johnston v. Compagnie Generate Trans-Atlantique, 242 N. Y. 381; Gould v. Gould, 235 N. Y. 14; Matter of Williams, 208 N. Y. 32; Taylor v. Hollard, [1902] 1 K. B. 767; Barber v. Lamb, 8 C. B. [N. S.] 95.) The depreciation of the franc, thereby rendering the French judgment of less value than, the American judgments, does not affect the application of the rule that payment of one judgment satisfies all judgments for the same debt or cause of action. (Freeman on Judgments [5th ed.], § 1126; Lovejoy v.
      Murray, 3 Wall. 1; Foy v. Barry, 159 App. Div. 749; Breslin v. Peck, 38 Hun, 623; Taylor v. Hollard, [1902] 1 K. B. 767; Barber v. Lamb, 8 C. B. [N. S.] 95; Deutche Bank v. Humphrey, 272 U. S. 517.) The so-called “ reservation ” in the “ release and satisfaction ” given by the judgment creditors upon receiving payment of the French judgment is not a contract. (Vanderbilt v. Schreyer, 91 N. Y. 392; Robinson v. Jewett, 116 N. Y. 40; Joffray v. Davis, 124 N. Y. 164; Davis v. Walker, 206 App. Div. 565; Schwartzreich v. Bauman-Busch, Inc., 231 N. Y. 196.) Where one of two judgments for the same debt has been paid, any attempted “ reservation ” of the other judgment is void. (Dahlstrom v. Gemunder, 198 N. Y. 449; Cox v. Smith, 10 Oreg. 418; Harbeck v. Vanderbilt, 20 N. Y. 395; Freeman on Judgments [5th ed.], § 1126; Walsh v. N. Y. C. R. R. Co., 204 N. Y. 58.)

      C. Alexander Capron and David Kelly for Farmers Loan and Trust Company, as guardian, appellant.

      J. Noble Hayes for respondents.
    The orders of the Surrogate’s Court of February 7 and the related order of March 7, 1927, marking satisfied in full respondents’ partly paid judgments, and without hearing the receiver, were erroneous in all respects, and were properly reversed by the Appellate Division, and the order appealed from should be affirmed, or the appeal dismissed. (Ellis v. Esson, 50 Wis. 147; Chicago v. Babouck, 143 Ill. 358; Long v. Long, 57 Iowa, 493; Sloan v. Herrick, 49 Vt. 327; Snow v. Chandler, 10 N. H. 92; Walsh v. N. Y. Central R. R. Co., 204 N. Y. 58; Gilbert v. Finch, 173 N. Y. 455; Witman v. Judd L. Co., 124 N. Y. 565; Matter of N. Y. & Lackawanna R. R. Co., 98 N. Y. 453; Jeffrey v. Davis, 124 N. Y. 164; Rothschild v. Mosbacher, 26 App. Div. 170; Manuse v. Hessington, 205 N. Y. 36; Simmons v. Superior Counsel, 82 App. Div. 619; Matter of Williams, 208 N. Y. 25.)
   O’Brien, J.

Amadee de Gasquet James died in France in 1903. By Ms will he gave to Ms wife, Elizabeth Pratt de Gasquet James, all his property situated in Europe and to his four cMldren all Ms property situated in the United States. He appointed Ms wife executrix and in 1904 the surrogate of Ulster county in this State granted ancillary letters testamentary. November 3, 1917, a decree was entered in the Surrogate’s Court charging the executrix with the sum of $65,133.25 and interest from March 21, 1915, in favor of the testator’s son George W. Pratt de Gasquet James and the same sum in favor of the testator’s daughter Pauline Andree de la Mettrie. Executions were returned unsatisfied. The son and daughter, citizens of the French Republic, on October 5, 1922, instituted in France a proceeding against the executrix, their mother, a resident of that country, to enforce there the judgment obtained in Ulster county. The proceeding in France resulted favorably to the judgment creditors and in December, 1925, the executrix made payment as directed by the French courts. After compliance with the French decree, the executrix applied to the surrogate of Ulster county for an order vacating the judgment of November 3, 1917, and satisfying it of record. His order of February 7, 1927, so decreeing has been reversed by the Appellate Division and the appeal is now here. The controversy arises from the fact that the payment in francs calculated as of the date of the institution of the French proceeding is worth less than the amount would be if calculated as of the date of payment and less than $65,133.25. We must determine the effect of the French judgment and of the judgment creditors’ release.

The proceeding in the French courts assumed the form of an exequatur. The judgment creditors’ expert witness on French law explains by affidavit in this proceeding that in France an exequatur is regarded as nothing more than an execution of a judgment rendered in a foreign jurisdiction. He states his opinion to be that only one judgment exists in favor of Georges de Gasquet James and Pauline Andree de la Mettrie and that the effect of the French proceeding is merely an execution of that judgment obtained in Ulster county. The judgment debtor’s expert witness also says that the American judgment is “ made executory in France ” by the French judgment: The mandate of the French court is that the “ afore cited judgment shall be purely and simply executed in France, according to the law of procedure, in spite of opposition or appeal ” and that for its execution in France the debt in dollars shall be converted into francs according to the rate of exchange practiced on the Paris Bourse the day the exequatur was asked for, namely, on the 5th of October, 1922.” The value of the Ulster county judgment, with deduction for partial payment previously made and with additions for expenses and interest was equal to 2,303,248.59 francs computed according to the rate of exchange at 13 francs to the dollar as of October 5, 1922. This precisely calculated sum was ordered paid and on December 15, 1925, the executrix paid it. Both expert witnesses concede that under French law the date for translating the American judgment from dollars into francs rested within the discretion of the French courts and that judicial power resided there to have fixed the date of payment rather than the date of the institution of the proceeding. Both testify the fact to be that it was at the request of the judgment creditors that October 5, 1922, was the date appointed by the court and both express the opinion that the creditors could have designated the date of payment as the time for translation.

The payment in obedience to the French decree on exequatur operates as a complete execution of the Ulster county judgment. The creditors selected that method to enforce their judgment and to obtain the money that was due. The executrix had obstructed payment in this country, and her son and daughter, despairing of success here, determined to invoke the laws of the country of which they are citizens and where they reside. They elected their measure of value and medium of exchange. They made their choice of the date upon which the dollar should be converted into francs. When they instituted their proceeding to collect, they could not predict the time of payment, nor could they forecast the future rate of exchange. They asked the court to direct payment at the rate of thirteen francs to the dollar and the court consented. The franc fell to half its value and then the debtor, after years of dilatory tactics, hastened to comply with the order of the court and paid the judgment. The judicial mandate on exequatur did not direct her to pay any specified number of dollars. It directed execution of the American judgment by the payment of 2,303,248.59 francs and not otherwise. The debtor has obeyed that command and has handed the last centime to her creditors. If the franc had risen to twice its value instead of shrunk to half she would have been bound by the same inexorable decree. She was obliged to pay that certain number of francs without regard to their value. After the translation of the judgment, her liability was in francs alone. Her creditors, misjudging the trend of currency values selected an ill-fated time for the conversion of dollars into francs and their misfortune has chanced to enrich their adversary. The hazard was theirs and they lost. “ An obligation in terms of the currency of a country takes the risk of currency fluctuations and whether creditor or debtor profits by the change the law takes no account of it. (Legal Tender Cases, 12 Wall. 457, 548, 549.) Obviously, in fact a dollar or a mark may have different values at different times but to the law that establishes it it is always the same.” (Deutsche Bank v. Humphrey, 272 U. S. 517, 519.) The American judgment has been executed in France exactly as the creditors demanded. It has, we think, been fully paid.

The Appellate Division supports respondents’ contention that the judgment of November 3, 1917, has been only partially executed. That learned court holds that the judgment has been satisfied merely to the extent of the money actually received in American dollars. Its conclusion is based upon its interpretation of the release and satisfaction given by the judgment creditors. That instrument, after reciting in francs the total amount of the judgment plus interest and expenses, includes this statement: “ For which sum Mme. de la Mettrie and M. de Gasquet James give to Mme. de Gasquet James a good and valid release. It being expressly specified that the said release final as to its effect on all the property and securities which may exist in France, is not given except under the most express reservations of all audits, accounts and final judgments which may exist in America and of all the other sums which may be owing by Madame widow de Gasquet James to M. Georges de Gasquet James in virtue of other debts and judicial decisions. * * * By reason of the preceding payment Mme. de la Mettrie and M. de Gasquet James in waiving all their rights, actions, liens and hypothecations, acknowledge pure and simple satisfaction and consent to the entire and final cancellation of all inscriptions and transcriptions of levy and of notice of levy upon the real property owned by Mme. de Gasquet James in France.” Respondents argue, and the Appellate Division accepts the argument, that this instrument was not intended fully to satisfy the American judgment but purposed merely to release the lien of the judgment upon Madame James’ property in France and to reserve the right to collect the difference between dollars and francs on the value of the American judgment.

Both judgment creditors give a good and valid release ” for a sum in francs translated from the amount of the judgment in dollars, they “ acknowledge pure and simple satisfaction,” and consent to the cancellation of liens against the debtor’s property in France. The main purpose of the proceeding was not to impose hens. The object was to collect the Ulster county judgment. The attachment of the hens was a subordinate detail designed to make the main purpose effective. Under French law, as stated by the opinion witnesses, the debtor could have caused the discharge of the hens by paying the amount of the judgment into court. So the consent to cancel does not indicate a mere partial payment or acknowledgment of a mere partial payment of the judgment. It reveals the fact that the creditors by agreement, after payment and receipt of the full amount of the judgment, calculated as of a date selected by the creditors, performed an act into which they would otherwise have been coerced by judicial process. No longer could they threaten the debtor’s French property. We think that the judgment creditors’ reservations constitute nothing except an attempt to preserve rights which did not exist. The record does not inform us of any audits or accounts except those which were included in the final judgment of November 3, 1917. Such judgments or decrees as may exist in America ” are mandates issued to enforce that judgment. In so far as those judgments in the receiver’s proceedings in this State remained unexecuted, they were merged in the French exequatur. Nothing was left for reservation. All had been extinguished when the 2,303,248.59 francs had been paid. The son, though not - the daughter, attempted likewise to reserve “ other sums which may be owing ” to him by his mother in virtue of other debts and judicial decisions.” We are not informed of the nature of these other sums. If the judicial decisions ” are intended to refer to those upon which the judgment of November 3, 1917, is based, we ' can do no more than to repeat that they cannot be the subject of reservation. The executrix, too, attempted in the release to make certain reservations. She assumed to reserve the right to object to the accuracy of the account and to the fixation of the rate of interest. Until this judgment, executory in France, shall be corrected by the French courts, it must stand. One party paid the judgment, the others accepted the payment, gave good and valid release and acknowledged pure and simple satisfaction.

The order of the Appellate Division should be reversed and that of the Surrogate’s Court affirmed, with costs in the Appellate Division and in this court.

Cardozo, Ch. J.,

dissents and votes for affirmance upon the ground that the French judgment was a security or form of execution for the enforcement and collection of the judgment recovered in New York; that payment of an obligation secondary and ancillary did not discharge the principal or primary obligation beyond the value of the foreign money at the time when payment was received; that appreciation of the franc between the date of the French judgment and the date of its discharge would not have involved the judgment debtor in any undue risk of hardship or injustice, since she was free at any time by payment of the New York judgment, the principal obligation, to compel the satisfaction of obligations that were collateral or secondary; and finally that the form of the so-called release, to which the judgment debtor was a party, is such as to justify a finding that by a bilateral agreement the payment of the French judgment was to be final with regard to its effect on all the property and securities which may exist in France,” but was to be accepted upon account in respect of any judgments recovered in America.

Andrews, Lehman and Kellogg, JJ., concur with O’Brien, J.; Cardozo, Ch. J., dissents in memorandum, in which Pound and Crane, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    In the Matter of the Claim of Sarah Kaplan, Appellant and Respondent, against Kaplan Knitting Mills, Inc., et al., Respondents and Appellants. The State Industrial Board, Respondent.
    Workmen’s compensation — master and servant — notice of claim — notice of injury and notice of claim need not be separate papers — sufficient when facts of injury are stated with reasonable certainty and it may be reasonably inferred that claim for compensation is being made — notice of election may be given any time before award — sufficient indication of intention to claim compensation — presumption that sufficient notice of claim has been given.
    1. There is nothing in the Workmen’s Compensation Law that requires the notice of injury (§ 18) and the claim for compensation (§ 28) to be two separate and distinct papers or that they be phrased in any particular language. They are sufficient when the facts of the injury are stated with reasonable certainty and it is reasonably to be inferred that a claim for compensation is being made. The notice of election to pursue his remedy against a third person (§ 29) has nothing to do with the notice of injury or the claim for compensation and may be given any time before an award is made by the Commission.
    2. A notice, therefore, containing all the requirements of a notice of injury under section 18, which was served upon the Industrial Commissioner within one year from the death of a workman, as the result of injuries received in his employment, clearly indicates an intention to claim compensation and is sufficient under section 28 where it provides that the notice of injury is given pursuant to section 18, “ without prejudice to the right of the dependents of the said injured employee to elect to sue any third party pursuant to section 29 of the Workmen’s Compensation Law, and this notice shall not be deemed an election to take compensation so as to preclude an action against any such third party for injuries resulting in the death of the said employee, reserving also any right to compensation for any deficiency resulting after the termination of such action,” and expressly reserving “ the right to hereafter elect whether to take compensation for said injuries or to sue any third party by reason of the occurrence above mentioned, or both.”

      3. In any event the law presumes, in the absence of substantial evidence to the contrary, that a sufficient notice of claim has been given (§ 21) and there is no substantial evidence in this case to show that the paper served on the Commissioner was not a sufficient notice of a claim for compensation in some form.

      Matter of Kaplan v. Kaplan Knitting Mills, 221 App. Div. 484, reversed.
    (Argued February 14, 1928;
    decided April 3, 1928.)
    Cross-appeals, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 3, 1927, which affirmed so much of a .determination of the State Industrial Board as dismissed the claim of the widow of a workman killed in the course of his employment because notice of claim was not filed within one year from his death but reversed as to an infant child and remitted his claim to the State Industrial Board on the ground that time did not run against him until a guardian was appointed.

      Edwin L. Garvin, Wallace T. Stock and Samuel Weiss for claimant, appellant and respondent.
    The notice of injury and death, dated March 20, 1923, concededly filed within one year from the date of the death of the deceased, constitutes a good and valid claim for compensation. (Matter of Petrie, 165 App. Div. 561; 215 N. Y. 335; Smith v. Price, 168 App. Div. 421; Rheimwald v. Builders’ Brick & Supply Co., 168 App. Div. 425; Royal Indemnity Co. v. White Engineering Corp., 120 Misc. Rep. 332; 208 App. Div. 759; O’Esau v. Bliss Co., 224 N. Y. 701; Giamelli v. Rahtz, 209 App. Div. 720; Miller v. Nat. Roofing Co., 215 N. Y. Supp. 547; Matter of Simon v. American Express Co., 244 N. Y. 650.)

      James J. Mahoney and George J. Stacy for defendants, respondents and appellants.
    Death benefits to Sarah Kaplan, widow of Samuel Kaplan, under the Workmen’s Compensation Law, are barred by reason of the failure to file a claim therefor within one year after the death. (Matter of Twonko v. Rome B. C. Co., 224 N. Y. 263; Beagle v. Groff, 198 App. Div. 453; Giamelli v. Rahtz, 209 App. Div. 720; O’Esau v. Bliss Co., 188 App. Div. 385.)

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for State Industrial Board, respondent.
   Crane, J.

Section 28 provides for the filing of a claim for compensation with the Commissioner. It states that the right to claim compensation shall be barred unless within one year after the accident or death, a claim for compensation shall be filed with the Commissioner. Unlike the notice of injury, it need not be filed with the employer, only with the Commissioner. The claim, furthermore, need contain none of the facts required to be stated in the notice of injury. It is sufficient if the case be identified by designation or description reasonably certain, and a claim made for compensation.

There is no reason that I know of why the notice of injury served upon the Commissioner may not also contain a claim for compensation. There is nothing in the law that requires them to be two separate and distinct papers, or that they shall be phrased in any particular language. The Workmen’s Compensation Law was particularly framed to avoid legal terminology and the technicalities of law pleading. It was intended that the working people themselves could make and file these claims and give the notice of injury. The cost and expense of employing attorneys were to be avoided if possible. The act was for the benefit of the workingman and his family, not for the profession. The notice, therefore, of injury and the claim for compensation are sufficient when the facts of the injury are stated with reasonable certainty, and it is also reasonably to be inferred that a claim for compensation is being made. In Matter of Petrie (215 N. Y. 335) this court said: The statute was the expression of what was regarded by the Legislature as a wise public policy concerning injured employees. Under such circumstances we think that it is to be interpreted with fair liberality, to the end of securing the benefits which it was intended to accomplish.”

The technical rules of evidence and procedure are not required to be followed by the Commissioner in making an investigation. (Sect. 118.)

There is another notice which the claimant may, and in some cases must give, which has nothing whatever to do with his notice of injury or the claim specified in section 28. It is his notice of election to pursue his remedy against a third party. Section 29 reads: “ If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in case of death, his dependents, shall, before any suit or any award under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such other. Such elections shall be evidenced in such manner as the commission may by rule or regulation prescribe.” If the election is made to proceed against the third party, the State insurance fund or insurance carrier shall contribute only the deficiency between the amount of the recovery and the compensation provided under the Workmen’s Compensation Law. Section 29 provides no definite time limit, as do sections 18 and 28. Section 18 gives thirty days after the accident or death; section 28 provides one year after the accident or death; not so, section 29. The notice of election there required may be .given any time before an award is made by the Commission. The election may be made, provided a claim has been filed, long after the year for filing the claim has expired. There is no connection between the claim and the election; they are two separate and distinct things. A notice or paper served upon the Commissioner by the person claiming to be entitled to compensation that she was going to sue a third party, and claimed compensation for the deficiency only, would be a sufficient claim within the meaning of section 28 of this law. Or, the alleged claimant may serve notice of claim and reserve the right to elect to sue the third party any time "before an award is made. This would be simply stating what the law itself says she may do. (Section 29.) The blank form used by the Commissioner in cases of claims for compensation by widows in death cases merely states: “ I hereby make claim for compensation arising out of the death of * * This in itself clearly indicates that the Commissioner understood that an election under section 29 is not made, or necessarily made at the time the claim is filed. The forms supplied by the Commissioner contain no such election. The State Industrial Commission furthermore has ruled that it is not necessary to use this printed form of claim. (Opinion, 14 State Dept. Rep. 710.) ’

With this understanding of the Workmen’s Compensation Law, let us apply it to this case and determine whether the widow of Samuel Kaplan made a claim for compensation within the meaning of section 28., It all depends upon how we construe the notice served March 20, 1923, reading as follows:

Sirs.— Notice is Hereby Given you that Samuel Kaplan, an employee of Kaplan Knitting Mills, Inc. of No. 97-101 Broadway, in the Borough of Brooklyn, City of New York, sustained certain injuries resulting in death, while in the employ of said Kaplan Knitting Mills, Inc.
The name of the employee so injured is Samuel Kaplan.
The address of the employee during his lifetime was 66 South Ninth Street, in the Borough of Brooklyn, City of New York.
The date when the accident occurred was February 24th, 1923.
The place of the accident was at No. 97-101 Broadway, in the Borough of Brooklyn, City of New York.
The nature and cause of the injury was as follows: The deceased employee was crushed by the elevator in the said building aforesaid, sustaining, among other things, a broken spine and fractured skull, which resulted in his death.
“ The death occurred on February 24th, 1923.
“ This notice of injury is given you pursuant to Section 18 of the Workmen’s Compensation Law, but same is given without prejudice to the right of the dependents of the said injured employee to elect to sue any third party pursuant to Section 29 of the Workmen’s Compensation Law, and this notice shall not be deemed an election to take compensation so as to preclude an action against any such third party for injuries resulting in the death of the said employee, reserving also any right to compensation for any deficiency resulting after the termination of such action.
The dependents of the said employee expressly reserve the right to hereafter elect whether to take compensation for said injuries or to sue any third party by reason of the occurrence above mentioned, or both.
Dated, New York, March 20th, 1923.
Yours, etc.,
“ SARAH KAPLAN, widow
EUGENE KAPLAN, child of the deceased employee.
By Freudenberg & Mattuck,
“Attorneys.”

This notice was served within the year. It contains all the requirements of a notice of injury under section 18. Can it also be reasonably inferred from its statements that the claimant was telling the Commissioner that she was making some claim for compensation under the Workmen’s Compensation Law? She states that this notice is given without prejudice to the election to sue a third party pursuant to section 29 of the Workmen’s Compensation Law. The election provided by section 29, as we have seen, presupposes a claim for compensation, for the election is merely a choice between a full award or a deficiency award. Here the claimant by this notice says that she reserves the right to make the choice between these two, indicating that she claims one or the other, that is, compensation in some form. She goes on to state: u This notice shall not be deemed an election to take compensation so as to preclude an action against any such third party for injuries resulting in the death of the said employee, reserving also any right to compensation for any deficiency resulting after the termination of such action.” What does this mean? What was the claimant trying to reserve? Not her claim for compensation, but her election. She clearly intimates that she is claiming compensation, otherwise all reference to section 29 would be useless. What she is trying to reserve is her right to make the election so that in making this claim or supposed claim for compensation she shall not be deemed to have chosen the full award instead of the deficiency award. She does not reserve the right to claim compensation later on, rather she reserves “also any right to compensation for any deficiency.” The deficiency compensation is given by section 29, and by this notice she clearly claims it. She reserves the right to have that compensation after she brings suit, if she so elects, against the third party. To me it is quite evident that this widow was claiming the benefits of the Workmen’s Compensation Law. The benefits are compensation. She was claiming compensation, either as a full award or as a deficiency award. The election, as we have seen from the wording of the statute, does not have to be made within the year, but may be made after a claim filed any time before an award. (See, also, decision in Matter of Ridout v. Rogers & Hagerty, 224 N. Y. 711.)

This notice could have been drawn in much better form, and the widow’s claim presented in much clearer language. She might have adopted the form of the Commissioner which says very tersely: I claim compensation.” There is no fatality, however, in failing to use these forms. Any notice which conveys to the Commissioner that the widow is claiming the compensation and benefits of the Workmen’s Compensation Law is sufficient. I think this notice clearly indicates such an intention. In fact, the law presumes that a sufficient notice of claim has been given. Such is the liberality with which this law is to be construed. Section 21 provides: In any proceeding for the enforcement of a claim for compensation "under this chapter, it shall be presumed in the absence of substantial evidence to the contrary * * * that sufficient notice thereof was given.” Where is the substantial evidence in this case to show that this letter or paper of March 20,1923, was not a sufficient notice of a claim for compensation in some form?

For these reasons the order of the Appellate Division affirming the State Industrial Board denying compensation to the claimant Sarah Kaplan should be reversed, with costs in the Appellate Division and in this court, and the proceeding remitted to the State Industrial Board for rehearing, and the appeal from the order of the Appellate Division in the matter of the claim of the infant Eugene Kaplan should be dismissed, with costs, on the ground that under our decision in the matter of claim of Sarah Kaplan the questions certified are not decisive of the controversy.

Cardozo, Ch. J., Pound, Andrews and Kellogg, JJ., concur; Lehman and O’Brien, JJ., dissent.

Ordered accordingly.


author: Cardozo, Ch. J. O’Brien, J.

text:
    Domineco Surace et al., Respondents, v. Sam Danna, Appellant, Impleaded with Another.
    Workmen’s compensation — execution — balance of lump payment of award under Workmen’s Compensation Law, to credit of workman, exempt from levy under execution — exemption not limited to compensation owing and unpaid.
    Lump payments of an award, made under the Workmen’s Compensation Law (Cons. Laws, eh. 67) to a workman for injuries suffered in the course of his employment, represent a fund for his maintenance while' disability continues and a balance thereof on deposit in a trust company to his credit is exempted from execution by section 33 of .that.', statute providing that “ compensation or benefits due ' * . * * shall be exempt from all claims of creditors and from levy, execution and attachment.” A contention that the word “ due ” must be held to limit the exemption to compensation owing and unpaid and that' moneys due under an award become subject to seizure the instant they are paid cannot be sustained. .. :

      Surace v. Danna, 221 App. Div. 785, reversed.
    (Submitted March 27, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 28, 1927, which affirmed an .order, of the Monroe County Court, made in supplementary proceedings, directing the Central Trust Company of Rochester to pay to the sheriff of Monroe county a sum sufficient to satisfy the judgment out of moneys on deposit with said trust company to the credit of the judgment debtor.
    The following questions were certified:

      “ 1. Were the funds of Sam Danna on deposit with the Central Trust Company of Rochester, which were the avails of payment made by the Industrial Commission to Danna under the terms of the Workmen’s Compensation Act, applicable to the payment of the judgment involved in this proceeding?

      “ 2. Should the order appealed from have been affirmed as a matter of law? ”

      H. H. Cohen and Samuel J. Danno for appellant.
    The money directed to be paid by the order of the County Court was and is “ exempt from all claims of creditors and from levy, execution and attachment.” (Post v. Burger, 216 N. Y. 544; Matter of Petrie, 215 N. Y. 335; Yates County Nat. Bank v. Carpenter, 119 N. Y. 550; Stockwell v. Malone Nat. Bank, 36 Hun, 583.)

      Jerry B. Leonardo for respondents.
    Compensation moneys when once paid to the employee are not exempt 'under the provisions of section 33 of the Workmen’s Cómpénsatión Law. This section of the compensation law applies only to moneys due the employee and only •until they are paid to him or his dependents in case of his death. (Bull v. Case, 165 N. Y. 578; Baker v. Brintnall, 52 Barb. 188; Sedgwick on Stat. & Const. Law, 267, 268.)
   Cardozo, Ch. J.

Sam Danna had an award of $3,500 from the- State Industrial Commission under the Workimen’s. Compensation Law (Cons. Laws, ch. 67) for injuries suffered in ■ the .course of his employment. He deposited the money in the Central Trust Company of Rochester. Thereafter a judgment was recovered against him for $558.15, and execution returned unsatisfied. Supplementary proceedings followed. On deposit with the trust company when the proceedings were begun was a balance of $2,600, a sum more than sufficient to satisfy the judgment. The judgment creditors obtained an order upon notice to the trust company and the depositor directing payment by the trust company to the sheriff of $591.22. The question is whether the moneys are exempt.

Workmen’s Compensation Law (§ 33) provides: Compensation or benefits due under this chapter shall not be assigned, released or commuted except as provided by this chapter, and shall be exempt from all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may not be waived.”

By concession the moneys due under the award would have been exempt from the pursuit of creditors before they reached the judgment debtor. The argument is, however, that they became subject to seizure the instant they were paid. If this is so, the exemption is next to futile. All that a creditor has to do is to obtain an order in supplementary proceedings, containing, like the order in this proceeding, the usual provision restraining the judgment debtor from making any transfer or disposition of his property until further directions in the premises. Then, as the installments of an award are paid, the injunction will tie them up. They may be appropriated to the last dollar in satisfaction of an ancient debt. They will no longer be a fund for the support of the indigent and helpless.

So narrow a construction thwarts the purpose of the statute. The Workmen’s Compensation Law was framed to supply an injured workman with a substitute for wages during the whole or at least a part of the term of disability. He was to be saved from becoming one of the derelicts of society, a fragment of human wreckage (Matter of Post v. Burger & Gohlke, 215 N. Y. 544; N. Y. C. R. R. Co. v. White, 243 U. S. 188, 197). He was to have enough to sustain him in a fashion measurably consistent with his former habits of life during the trying days of readjustment. The cost of such support becomes a charge upon the industry without regard to fault. Rehabilitation of the man, not payment of his ancient debts, is the theme of the statute, and its animating motive.

The exemption must have a meaning consistent with the policy behind it. Few words are so plain that the context or the occasion is without capacity to enlarge or narrow their extension. The thought behind the phrase proclaims itself misread when the outcome of the reading is injustice or absurdity (Smith v. People, 47 N. Y. 330, 341, 342; Matter of Meyer, 209 N. Y. 386, 389). Adherence to the letter will not be suffered to defeat the general purpose and manifest policy intended to be promoted ” (Spencer v. Myers, 150 N. Y. 269, 275; People ex rel. Wood v. Lacombe, 99 N. Y. 43; Matter of Folsom, 56 N. Y. 60, 66; Kent’s Comm. 462). We are told that the word due ” must be held to limit the exemption to compensation owing and unpaid. But “ due,” like words generally (Towne v. Eisner, 245 U. S. 418, 425; Int. Stevedoring Co. v. Haverty, 272 U. S. 50), has a color and a content that can vary with the setting. Compensation due under an act may be a payment presently owing, or one to become due in the future, or one already made, but made because due, i. e., required or commanded (cf. Allen v. Patterson, 7 N. Y. 476; U. S. v. State Bank of North Carolina, 6 Pet. [U. S.] 29, 36). If the narrower meaning is the commoner, the broader does not strain the word beyond the limits of construction. A workman, holding in his hands a payment made by his employer or an insurance carrier in satisfaction of an award might say not inappropriately that the money so received was due under the statute. The argument is not compelling that some of the prohibited acts — assignment, release, commutation — apply to compensation before the stage of payment, because impossible thereafter. This does not mean that other acts — execution, attachment, supplementary proceedings — appropriate or possible in later stages must be fitted to the same mould. The maxim “ reddendo singula singulis ” supplies the applicable rule.

The fundamental policy of workmen’s compensation is a token of intention to be ranked as first and foremost. It is reinforced by others. Section 33 as first enacted was to the effect that claims for ” compensation or benefits were not to be assigned or released and were to be exempt from legal process. By the amendment of 1922 the words quoted are omitted. Under the statute as it now reads, the exemption is affixed to the compensation, and not merely to the claim. The strength of the desire to give protection to the workman is accentuated also by the final words of the section, “ which exemption may not be waived.” The claimant is to be protected against his own improvidence or folly (cf. the cognate sections 24 and 32). We are blind to the policy of workmen’s compensation if we say that the purpose of the exemption, thus emphatically guarded, is to promote the convenience of the State by withdrawing the occasion for conflicting claims of ownership. There shines through the statute, both here and in related sections, a worthier conception of the duty of the State to the helpless and hapless in an industrial society. From the viewpoint of mere convenience, an assignment or release or commutation of an award is a matter of indifference to the State or its officials. Payments are made for the most part by the employer or an insurer. When not made by' these, they are made from the State fund. Release, instead of imperilling t]p.e fund, would have a tendency to strengthen it. A public officer may assign his salary after an installment is already due (Mechem on Public Officers, §§874,875; Bliss v. Lawrence, 58 N. Y. 442; B. N. Bank v. Wilson, 122 N. Y. 478; Matter of Worthington, 141 N. Y. 9; cf. McCoun v. Dorsheimer, 1 Clark Ch. 144; Hadley v. Peabody, 13 Gray, 200). Not so, a disabled workman who would part with his award. Compensation and benefits shall be paid only to employees or their dependents ” (Workmen’s Compensation Law, § 33). At the root of the exemption is something more benignant than bureaucratic formalism, a dislike of complicating documents. The exemption like the compensation is for the protection of the man.

One other signpost of intention is at hand to give direction to the way. It is found in a different statute, but one in pari materia. A statute long in force provides that “ the earnings of the judgment debtor for his personal services rendered within sixty days ” before supplementary proceedings are exempt from seizure “ when it is made to appear by his oath or otherwise that those earnings are necessary for the use of a family wholly or partly supported by his labor ” (Civ. Prac. Act, § 777; Code Civ. Pro. § 2463). Execution is permissible for ten per cent of his accruing wages, but even that percentage is exempt if the wages are less than twelve dollars per week (Civ. Prac. Act, § 684). Compensation or benefits under the Workmen’s Compensation Law are not earnings for personal services. The result will therefore be, unless the exemption follows the payment into the hands of the injured workman, that he will be in a position less favorable than his brother-workmen who are blessed with health and strength. Their earnings for sixty days, if necessary for the care of the family, are withdrawn from the reach of creditors. His meagre allowance may be diverted from his family, and used to pay his debts. The vast majority of awards under the act are payable periodically in bi-weekly installments (Workmen’s Comp. Law, § 25). Commutation is exceptional, and may be ordered by the Industrial Board only when found to be in the interests of justice ” (§ 25; Adams v. N. Y., O. & W. Ry. Co., 175 App. Div. 714; 220 N. Y. 579). We infer from the size of the payment to this workman that in this instance lump payments were substituted for the periodical installments. Even so, they represent a fund for his maintenance while disability continues. His untrammeled use of them for that purpose is as necessary as if the payments were spread over the years.

In these circumstances, our decision in Yates County National Bank v. Carpenter (119 N. Y. 550) supplies the applicable rule. Code of Civil Procedure, section 1393 (now Civ. Prac. Act, § 667), exempts from execution a “ pension * * * heretofore or hereafter granted by the United States * * * for military * * * services.” We were asked to limit this exemption to the pension or the pension moneys before payment by the government. We held that it protected moneys collected by the pensioner. We even extended the immunity to a dwelling house and lot in which the moneys were invested. It is quite obvious,” we said, that' such an exemption can produce no beneficial effect, unless it is extended beyond the letter of the act, and given life and force, according to its evident spirit and meaning ” (cf. Stockwell v. National Bank of Malone, 36 Hun, 583; Burgette v. Fancher, 35 Hun, 647; Benedict v. Higgins, 165 App. Div. 611; Price v. Soc. of Savings, 64 Conn. 362). No doubt there are decisions giving color of support for a narrower construction. They deal with statutes framed on other lines, and animated by a policy less paternal in its aim. Thus McIntosh v. Aubrey (185 U. S. 122) and Kellogg v. Waite (12 Allen, 529) construe a Federal statute which exempts a sum of money due, or to become due, to any pensioner.” The statute itself supplies a gloss upon the meaning. The money is to be exempt whether the same remains with the Pension Office, or any officer or agent thereof, or is in course of transmission to the pensioner entitled thereto.” (R. S. § 4747.) The implication is not difficult that the exemption is to cease when the transit has been ended. Bull v. Case (165 N. Y. 578) has to do with a section of the Insurance Law exempting money to be paid ” by membership insurance societies to their members or to others who may be named as beneficiaries (cf. Matter of Lynch, 83 Hun, 462; 150 N. Y. 560). There was support for a strict construction, not merely in the letter of the act, but in cogent considerations of public policy and justice. Ihe insurance to be protected was without limit of amount (see opinion of Cullen, J., in Bull v. Case, 41 App. Div. 391, 392). The exemption, if it could survive collection, would guard a great fortune as fully as a widow’s mite. The statute now before us protects the dole of the disabled. The end to be served, the mischief to be averted, supply the clews and the keys by which construction must be governed.

The order of the Appellate Division and that of the County Court should be reversed, without costs, and the questions certified answered in the negative.

O’Brien, J.

(dissenting). Appellant’s claim to exemption from execution against moneys heretofore paid to him as compensation for injury rests upon this provision of section 33, Workmen’s Compensation Law: “ Compensation or benefits due under this chapter, shall not be assigned, released or commuted except as provided by this chapter, and shall be exempt from all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may not be waived. Compensation and benefits shall be paid only to employees or their dependents.”

No property is exempt from execution unless some statute makes it so, and the burden is upon the person claiming exemption to bring his property within some statutory exception. (Baker v. Brintnall, 52 Barb. 188.) The question whether any one shall, receive the privilege of escaping payment of a debt is one of policy and, therefore, one essentially for legislative action. The lawmaking body has seen fit to continue to impose upon one recovering a judgment in an action for personal injuries the duty to discharge his pecuniary obligations to those who have trusted him. It may relieve him of that duty just as it may lighten the financial burdens of one obtaining compensation under the Workmen’s Compensation Law. We ought not to bold that the Legislature has done so in either case unless its language clearly indicates such an intention.

I can read in the act no such legislative purpose. The compensation and benefits which are exempt are only those which are due.” The statute does not deal with those which have been paid. Compensation and benefits which are due are not merely made free from claims of all kinds; the workman himself is forbidden to assign them or to waive his exemption from execution. We would have to go to extraordinary lengths before we could hold that the statute purposes to prevent any one from assigning compensation after it has been paid to him. How could an injured workman support himself, if he were prohibited from assigning his own money and if his creditors could not compel him to pay what he owes them? Clearly, to my mind, this section forbids assignments and waivers of exemption from execution only so long as the money remains in the custody of the State or the employer. This idea is reinforced by the last sentence in that part of the section above quoted: “ Compensation and benefits shall be paid only to employees or their dependents,” and the further provision in section 33 directing, in case of the death of an injured employee to whom any compensation was due ” at.the time of his death, that such compensation shall be “ payable ” to certain designated relatives. All through section 33 the word due ” seems to mean payable.” Compensation can no longer be due or payable after it has been paid. The purpose of séction 33 impresses me as directing a mode of procedure by which the State or the employer may be enabled to get rid of compensation, which is due and payable, simply by paying it over to the person to whom it has been awarded or to whom it is payable under the statute. The agent, public or private, who makes the disbursement shall not be harassed or obstructed by the imposition of a duty to determine at his peril the validity of assignments, third party orders, executions or any kind of document purporting to constitute legal process. He is not to be turned into a stakeholder but is to be a disbursing agent and nothing else. After his function as such has been discharged, the beneficiary may do with his compensation as he wills. The money belongs to him and, in the absence of a clear statute of exemption, it is, like other property, subject to execution. This policy may not embody such humanity and benevolence as we may think the State ought to dispense to the victims of industrial casualties. The Legislature is free to change its present policy. Our duty is to interpret the law as we find it.

In this statute, the word “ due ” is, I think, used by the Legislature in the sense in which that and cognate words have been defined by the courts, In Bull v. Case (165 N. Y. 578) we decided that the section of the Insurance Law (Cons. Laws, ch. 28) which provides that all money or other benefit, charity, relief or aid to be paid * * * shaii not be liable to be seized, taken or appropriated” (§ 238) does not include the case of money after it has been paid. The act of Congress (R. S. § 4747) which directs that “ no sum of money due, or to become due, to any pensioner, shall be liable to attachment, levy or seizure ” has been held to protect pension moneys only until they have been paid. (McIntosh v. Aubrey, 185 U. S. 122; Smith v. Blood, 106 App. Div. 317, 324, per Chase, J.) Our decision in Yates County Nat. Bank v. Carpenter (119 N. Y. 550) does not, it seems to me, announce any essentially different doctrine. In that case we construed a statute which provided that “ a pension heretofore or hereafter granted by the United States * * * for military * * * services * * * is also exempt from levy and sale by virtue of an execution, and from seizure for non-payment of taxes, or in any other legal proceeding.” (Civ. Prac. Act, § 667.) That statute plainly exempted the pension not only before but also after the money had reached the beneficiary. Property purchased with pension money and necessary for the pensioner’s maintenance is the equivalent of and represents the pension. That is the theory upon which that case was decided. No one pretended that, under that statute, the pension money itself, even after it had been paid to the beneficiary, could be seized or levied upon. Therein lies the vital distinction between this and the Carpenter case. The authority of that decision has, moreover, been shaken by the opinion of the Supreme Court of the United States in McIntosh v. Aubrey (supra).

Pound, Crane, Lehman and Kellogg, JJ., concur with Cardozo, Ch. J.; O’Brien, J., dissents in opinion; Andrews, J., not sitting.

Orders reversed, etc.


author: Kellogg, J.

text:
    Sun Oil Company, Respondent, v. Alexander A. Heller, Appellant.
    Contract — guaranty — consideration — Frauds (Statute of) — action on contract of guaranty — sufficiency of memoranda to satisfy Statute of Frauds — performance of implied request to furnish goods on credit a sufficient consideration — sufficient expression of consideration by writing.
    A writing signed by defendant which reads: “I will personally guarantee the payment of oil or gasoline to the Sun Oil Co. in the sum of $7,500 in the event the Checker Taxi Co. does not pay within 30 days after demand is made,” is a sufficient memorandum of his promise to answer for the debt of another to satisfy the Statute of Frauds, where, in an action to recover on the guaranty, it is clear from evidence attending the execution of the writing, admissible to show its meaning, that the guaranty was in part for a new indebtedness for future deliveries of oil and gasoline. Defendant impliedly requested the plaintiff to make further sales to the taxicab company and performance constituted a consideration for the guaranty. The stipulated consideration for the promise is sufficiently expressed by the writing.

      Sun Oil Co. v. Heller, 222 App. Div. 665, affirmed.
    (Argued April 9, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 19, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.

      Nathan Siegel, Jr., Nelson Ruttenberg and Norbert Ruttenburg for appellant.
    Plaintiff failed to plead and prove a cause of action. (Waldheim v. Sonnenstrahl, 28 N. Y. Supp. 582; Town of Potsdam v. Ætna Cas. & Surety Co., 217 N. Y. Supp. 641; Page v. Krekey, 137 N. Y. 307; Andes Co-operative Co. v. Commercial Casualty Co., 201 N. Y. Supp. 664; Bank of Italy v. Merchants Nat. Bank, 236 N. Y. 106; Barns v. Barrow, 61 N. Y. 39; Leeds v. Dunn, 10 N. Y. 469; Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273.) The trial court allowed the plaintiff a recovery upon a contract not alleged in the complaint nor proved at the trial. (Union Nat. Bank v. Leary, 79 N. Y. Supp. 217.) The finding of the trial court that the memorandum was part of the oral contract was contrary to the pleadings, the proof and the law, and is reversible error. (Duncan v. Wohl, South & Co., 195 N. Y. Supp. 381; Tobias v. Lynch, 182 N. Y. Supp. 643; Polucek v. Jahoda, 196 N. Y. Supp. 445.) The written memorandum of guaranty was insufficient under the Statute of Frauds. (Church v. Brown, 21 N. Y. 315; Drake v. Seaman, 97 N. Y. 230; Barney v. Forbes, 118 N. Y. 580; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Tobias v. Lynch, 182 N. Y. Supp. 643; Ward v. Hasbrouck, 169 N. Y. 407; Oldham v. Pincus, 65 N. Y. Supp. 691;
      Kronfeld v. Natelson, 187 N. Y. Supp. 449; Talcott, Inc., v. Greenstein, 206 N. Y. Supp. 471; Dawson v. Margolies, 212 N. Y. Supp. 471; Carter Macy Co., Inc., v. Matthews, 222 N. Y. Supp. 472.)

      Martin Conboy, Peter F. McAllister and Vincent R. Impellitteri for respondent.
    The memorandum of guaranty is sufficient under the Statute of Frauds. (Seymour v. Warren, 179 N. Y. 1; Union Nat. Bank of Lewisburg v. Leary, 77 App. Div. 332; Clune v. Ford, 55 Hun, 479; Littman v. Brittain, 100 Misc. Rep. 255.) Plaintiff alleged and proved a cause of action. (Waldheim v. Sonnenstrahl, 28 N. Y. Supp. 582; Town of Potsdam v. Ætna Cas. & Surety Co., 217 N. Y. Supp. 641; Page v. Krekey, 137 N. Y. 307; Barns v. Barrow, 61 N. Y. 39; Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273; Lees v. Dunn, 10 N. Y. 469; Bank of Italy v. Merchants Nat. Bank, 236 N. Y. 106.)
   Kellogg, J.

The plaintiff, prior to the 27th day of February, 1924, had sold and delivered to a corporation, known as the Checker Taxicab Company, oil and gasoline of the value of $4,708.70. No part of the sum thus owing had then been paid to the plaintiff. Accordingly the plaintiff declined to make further deliveries to the Checker Taxicab Company. The defendant was the treasurer of the company. On the day named he stated to an officer of the plaintiff that it ought to continue to make deliveries. As a result of a conversation which ensued the defendant made and delivered to the plaintiff a writing reading as follows: “ I will personally guarantee the payment of oil or gasoline to the Sun Oil Co. in the sum of $7,500 in the event the Checker Taxi Co. does not pay within 30 days after demand is made.” The writing was subscribed by the defendant. Thereafter the plaintiff continued to sell and deliver to. the Checker Taxicab Co. oil and gasoline until that company owed it an additional sum of $2,200.27. Subsequently the taxicab company was_declared bankrupt. In the bankruptcy proceedings the plaintiff received a 30 per cent dividend upon its claim, or the sum of $2,072.69. This left the taxicab company indebted to the plaintiff in the sum of $4,836.28. More than thirty days having elapsed after demand of payment made, this action was brought against the defendant upon his guaranty. The plaintiff has had a recovery for the sum stated to be owing, with interest. The question now arising is whether or not the writing signed by the defendant was a sufficient memorandum of his promise to answer for the debt of another to satisfy the Statute of Frauds. (Personal Property Law, § 31; Cons. Laws, ch. 41.)

It will be observed that the writing does not expressly state a consideration for the promise of guaranty. The trial judge said: It is implicit in this agreement that the vendor was to forbear for thirty days against the vendee.” We find no such implication in the writing. Non-payment by the Checker Taxicab Company for a period of thirty days was nothing more than the specified condition upon the fulfillment of which the defendant’s promise to pay in its stead was to become operative. Was other consideration implied? We must first determine whether or not the defendant intended to guarantee the payment of a debt already owing, or the payment of a debt which in part was to arise from future transactions. If the former, there was no consideration given for the guaranty. Unless forbearance or further advances were requested, the difficulty indeed would be deeper than one,of the Statute of Frauds; there would be no contract.”- (Williston on Contracts, sec. 573.) In order to determine the nature of the thing promised, recourse to the circumstances attending the execution of the writing may be had. (Id. sec. 573.) While oral proof of the promise made is not admissible, oral proof of facts from which the meaning of the written promise may be known is admissible. (Marks v. Cowdin, 226 N. Y. 138.) In that case it was said by Cardozo, J.: “ We exclude the writing that refers us to spoken words of promise. We admit the one that bids us ascertain a place or a relation by comparison of the description with some ‘ manifest, external, and continuing fact.’ ” In our case the writing embodied a conditional promise of the defendant to pay for oil and gasoline delivered to the Checker Taxicab Company “ in the sum of $7,500.” The taxicab company was then indebted to the plaintiff in no greater sum than $4,708.70. It is self-evident, then, that the defendant contemplated future deliveries of oil and gasoline to that company and the accrual of a new indebtedness therefor. Consequently, it is clear that the guaranty was in part for such new indebtedness. That being the case, we find in the writing an implication that the defendant made his promise in consideration of future deliveries to be made to the Checker Taxicab Company at his request. The consideration for a guaranty is sufficiently stated in a written memorandum which reads: “ I guarantee the payment of any goods which J. Stadt delivers to J. Nichols.” (Stadt v. Lill, 9 East, 348.) The same is true where the memorandum reads: “To Barent P. Staats, Esq. I hereby obligate myself to hold you harmless for any endorsement you may make for, or have made for, the late firm of Peck, Howlett & Foster, not exceeding $3,000.” (Staats v. Howlett, 4 Denio, 559.) The same is true of the following memorandum: “ Mr. Gates — Sir: I will be responsible for what stock M. E. McKee has had or may want hereafter to the amount of five hundred dollars.” (Gates v. McKee, 13 N. Y. 232.) To the same effect are the following: Union Bank v. Coster’s Executors (3 N. Y. 203); Rogers v. Kneeland (10 Wend. 218); Marquand v. Hipper (12 Wend. 520); Church v. Brown (21 N. Y. 315). It is the theory of all these cases that, where one party agrees with another party that, if such party for a consideration performs a certain act or a third person, he will guarantee payment of the consideration by such person, the act specified is impliedly requested by the guarantor to be performed and, when performed, constitutes a consideration for the guaranty. Under the authorities cited it cannot be gainsaid that in our case the defendant requested the plaintiff to make further sales to the Checker Taxicab Company, in consideration of which the defendant promised to pay if the taxicab company did not pay, and that the stipulated consideration for the promise was sufficiently expressed by the writing.

The judgment should be affirmed, with costs.

Carduzo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur.

Judgment affirmed.


text:
    Louis Deschenes et al., Appellants, v. Francis J. N. Tallman et al., Respondents.
    Real property — title — deed — foreclosure — deed by liquidators of foreign corporation, appointed by foreign court, of land in this State, together with confirmatory deed of corporation, passes title — grant by corporation good even though made under compulsion and even though land is subject to potential claims of creditors — ■ action to foreclose purchase-money mortgage — counterclaim for breach of covenant of seizin must fail — damages made nominal by giving of confirmatory deed.
    1. Assuming a deed of land in this State, made by liquidators of a foreign Corporation appointed by a foreign court, to be inoperative, there is none the less a conveyance of title upon delivery by the corporation of a confirmatory deed or grant, even though it be given under compulsion, and even though the land be subject to inchoate or potential liens of creditors.
    2. In an action, therefore, to foreclose a purchase-money mortgage on land in the city of New York a counterclaim for breach of covenant of seizin alleging that plaintiffs derived title from liquidators of a Canadian corporation appointed by a court in the Province of Quebec, must fail where it appears that after the sale by plaintiffs, they procured the execution of a quitclaim deed by the Canadian corporation containing a recital that it is given “ in confirmation of a deed ” made by the liquidators, “ it being the opinion of the liquidators that this deed is necessary for the beneficial winding up of the party of the first part and they having requested the execution of the same ” and it further appears that, under the statutes of Canada, corporate fife survives the appointment of a liquidator until the winding up is finished though the powers of the directors cease except in so far as the court or liquidator sanctions the continuance of the same.
    3. A contention that the quitclaim deed was ineffective to destroy a cause of action for breach of a covenant of seizin contained in a deed made the year before, since the breach was complete when the covenant was made, cannot be upheld when the confirmatory deed was given before the counterclaim was served and before demand was made for repayment of the purchase price. If it did not destroy the cause of action, it made the damage nominal.

      Deschenes v. Tallman, 222 App. Div. 761, reversed.
    (Argued March 26, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 9, 1927, which affirmed an order of Special Term denying a motion by plaintiff for judgment on the pleadings.
    The following questions were certified:
    “ I. Does the answer read together with the stipulations as to the laws of Canada state facts sufficient in law to constitute a defense or counterclaim?

      “ II. Was the deed of the liquidators of Miller & Loekwell, Limited, valid to pass title to the real property in controversy and located in this State and recorded in its name?

      “ III. Was the subsequent deed of the corporation sufficient to pass title to said real property?
    “ IV. Should the order of Special Term, dated May 18, 1927, have been reversed, and should the motion for judgment on the pleadings and the stipulations as to the laws of Canada have been granted?

      “ V. Were both of the above deeds, considered together, sufficient to pass title to said real property? ”

      Raphael H. Weissman and Sarah Schreiber for appellants.
    The answer read together with the stipulation as to the laws of Canada does not state facts sufficient to constitute a defense or counterclaim. (Mahon v. Ongley, 156 N. Y. 196; Small v. Smith, 14 S. D. 621; Johnson v. Compagnie General Transatlantique, 242 N. Y. 381; Loucks v. Standard Oil Co., 224 N. Y. 99; Martyne v. Am. U. F. I. Co., 216 N. Y. 183.) If the foreign liquidators’ deed be not valid, then the subsequent deed of the foreign corporation was sufficient to vest respondents with title and to extinguish the breach of the covenant of seizin, if any, theretofore existing. (Livingston v. Proseus, 2 Hill, 526; Sinnott v. Hanan, 214 N. Y. 454; Atlantic D. Co. v. Beard, 145 App. Div. 342; 203 N. Y. 584.)

      Edward J. O’Toole for respondents.
    The Canadian liquidators in bankruptcy were never seized of the real property herein. (Simpkins v. Smith & Parmelee Gold Co., 50 How. Pr. 56; Oakey v. Bennett, 52 U. S. 33; Smith v. Berz, 125 Ill. App. 122.) The deed, executed by the insolvent corporation and subsequently tendered, is inadequate to convey any title to land in this State. (Osborne v. Adams, 18 Pick. 245; Stewart v. Mut. Reserve Life Ins. Co., 39 Misc. Rep. 275.)
   Cardozo, Ch. J.

The complaint is for the foreclosure of a purchase-money mortgage. The answer is a counterclaim for breach of a covenant of seizin. Whether seizin was lacking is the question to be answered.

Plaintiffs sold the land to the defendant Francis Tall-man in April, 1925. A predecessor in title was Miller & Lockwell, Limited, a Canadian corporation. By a decree of the courts of the Province of Quebec, made in 1911, the corporation was adjudged insolvent, and its property, real and personal, was ordered to be sold by two liquidators duly appointed according to the laws of the Province. The liquidators conveyed the land to the plaintiffs, who thereafter sold to Tallman with covenant of seizin. The land is located in the city of New York. The defendants insist that title does not pass under a deed by foreign liquidators.

A second and confirmatory deed, made in December, 1926, is also the subject of attack. After the sale to Tallman, the plaintiffs procured the execution of a quitclaim deed by the Canadian corporation. This deed, made by the corporation to the defendant Francis Tail-man, contains a recital that it is given in confirmation of a deed ” made by the liquidators, it being the opinion of the liquidators that this deed is necessary for the beneficial winding up of the party of the first part and they having requested the execution of the same.” The statutes of Canada are to the effect that the corporate fife survives the appointment of a liquidator until the winding up is finished, but that the powers of the directors cease “ except in so far as the court or liquidator sanctions the continuance of the same.” The defendants insist that the later deed, being made under compulsion, adds nothing to the first one, and leaves the title where it was.

The answer demands judgment for the cancellation of the purchase-money mortgage, the return of the cash payment, and reimbursement for the value of subsequent improvements.

We think the counterclaim must fail.

There is no need to determine what effect would be given to the liquidators’ deed considered by itself. If they were chancery receivers (Sterrett v. Second Nat. Bank, 248 U. S. 73; Keatley v. Furey, 226 U. S. 399; Lion Bonding Co. v. Karatz, 262 U. S. 77, 87, 88; Mabon v. Ongley Elec. Co., 156 N. Y. 196; Decker v. Gardner, 124 N. Y. 334), or receivers or assignees in insolvency or bankruptcy (Security Trust Co. v. Dodd, Mead & Co., 173 U. S. 624, at p. 629; Osborn v. Adams, 18 Pick. 245; Callender, Sykes & Co. v. Colonial Secretary, 1891, A. C. 460; Dicey, Conflict of Laws, p. 331), their deed would be a nullity. They would not gain a title to land within this State by force of their appointment in a foreign jurisdiction, and not having it themselves, could not transmit it to another. If they were the universal successors of the corporation (Keatley v. Furey, supra, at pp. 403, 404; Chipman v. Mfrs. N. Bank, 156 Mass. 147, 149), the representatives in dissolution proceedings of its personality and powers, a different consequence would follow (Martyne v. Am. Union Fire Ins. Co., 216 N. Y. 183; Relfe v. Rundle, 103 U. S. 222). The character and purpose of the proceedings in the courts of Canada are exhibited too imperfectly to enable us to judge with certainty of the origin and measure of the liquidators’ powers. We leave the question open till decision becomes necessary.

If the deed by the liquidators be assumed to be inoperative, there was none the less a conveyance of title upon delivery by the corporation of a confirmatory deed of grant. A judgment of a foreign court will not avail of its own force to transfer the title to land located in this State. It will not avail though a conveyance be executed by the sheriff or a master or other agent of the court in fulfillment of its mandate (Fall v. Eastin, 215 U. S. 1, 11; Carpenter v. Strange, 141 U. S. 87, 105; Watts v. Waddle, 6 Pet. [U. S.] 389). The court, not having jurisdiction of the res, cannot affect it by its decree, nor by a deed made by a master in accordance with the decree ” (Fall v. Eastin, supra). But the rule is different where the conveyance is executed by the owner, though he act under compulsion (Fall v. Eastin, supra, at p. 11; Watkins v. Holman, 16 Pet. [U. S.] 25, 57; Corbett v. Nutt, 10 Wall. [U. S.] 464, 475; Gardner v. Ogden, 22 N. Y. 327). The conveyance, and not the judgment, is then the source of title. As to this the law has been undoubted since Penn v. Lord Baltimore (1 Ves. Sr. 444). The distinction is between a judgment directed against the res itself, and one directed against the person of the owner, who acts upon the res. His deed transmits the title irrespective of the pressure exerted on his will.

A different question would be here if we were required to determine whether the title would prevail against the remedies of creditors (cf. Huntington v. Chesapeake, etc., Ry. Co., 98 Fed. Rep. 459, 464; Osborn v. Adams, 18 Pick. 245). A title acquired in foreign insolvency proceedings is subordinated to local creditors with executions or attachments against the goods and chattels of a debtor (Security Trust Co. v. Dodd, Mead & Co., supra; Barth v. Backus, 140 N. Y. 230; Vanderpoel v. Gorman, 140 N. Y. 563; Willitts v. Waite, 24 N. Y. 577, 582; Blake v. Williams, 6 Pick. 286; Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 579, 580). Authority is not lacking that it is so subordinated in respect of land, though seizin has been transferred by the assurance of a deed (Huntington v. Chesapeake, etc., Ry. Co., supra; Osborn v. Adams, supra). If all this be assumed, the defendants are not greatly helped. Seizin there still is, though subject to the claims of creditors as inchoate or potential hens (Matter of Waite, 99 N. Y. 433; Security Trust Co. v. Dodd, Mead & Co., supra, at p. 635; Mabon v. Ongley Elec. Co., supra). We do not know from the answer whether any such claims exist. Very likely they have been extinguished, for fifteen years have elapsed between the appointment of the liquidators and the service of the counterclaim. If the claims are alive, they are at most in the nature of an incumbrance, burdening the title, but not defeating its transmission. A judgment that is merely inchoate or potential can have no greater effect than one that is actual and consummate (Rawle on Covenants for Titles, §§ 59, 60; Sedgwick v. Hollenback, 7 Johns. 376; Jackson v. Garnsey, 16 Johns. 189, 192; Kuntzman v. Smith, 77 N. J. Eq. 30). The defendants do not counterclaim because of the presence of an incumbrance. They do not even say that such a covenant was made. The basis of the counterclaim is the covenant of seizin. In the view of the pleader, title has so failed that the transaction in all its parts must be undone from the beginning. More must be shown, to justify that upheaval, than the threat of a potential lien.

The defendants make the point that the deed of 1928, which they admit that they accepted, was ineffective, however voluntary, to destroy a cause of action for breach of a covenant of seizin in the deed of 1925, since the breach was complete when the covenant was made. If it did not destroy the cause of action, it made the damage nominal. The confirmatory deed was given before the counterclaim was served and before demand was made for the repayment of the purchase price. Consideration has not failed now that title has been cured (Murphy v. U. S. Title Guaranty Co., App. Term., 104 Misc. Rep. 607; King v. Gilson, 32 Ill. 348, 355; Cornell v. Jackson, 3 Cush. 506).

The order of the Appellate Division and that of the Special Term should be reversed, with costs in the Appellate Division and in this court, and judgment ordered in favor of the plaintiffs for the relief demanded in the complaint; the first question certified is answered no; ” the second question is not answered; and the third, fourth, and fifth questions are answered yes.”

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

Ordered accordingly.


text:
    In the Matter of the Claim of Dora Sienko, Appellant, against Bopp & Morgenstern et al., Respondents. State Industrial Board, Appellant.
    Workmen’s compensation — master and servant — estoppel — workman permanently disabled in course of employment — election to sue third party with claim for deficiency — death during pendency of action from cause other than injury — award properly made to widow —not estopped from claiming compensation by pendency at death of husband of action against third party.
    1. An award was properly made, under section 33 of the Workmen’s Compensation Law, to the widow of a workman, totally and permanently disabled in the course of his employment, who filed an election with the State Industrial Board to sue a third party, with claim for compensation for any deficiency, and who during the pendency of the action, died from causes other than the accident. The notice of election with claim for deficiency compensation constituted a claim for compensation within the one year’s limitation of section 28 and it was not necessary for the widow to file a further claim for compensation. The basis of her claim was the injury to her husband for which he would have been entitled to compensation had he lived. Because of his death it is now payable to her.
    2. An objection that the award was improper owing to the pending action against the third party cannot be sustained. The effect of the death of the plaintiff in that action was, in the eyes of the law, the same as a dismissal on the merits. The action terminated as matter of law and there was nothing inconsistent in the widow’s claiming compensation. (Matter of Me Kee v. White, 218 App. Div. 300; affd., 244 N. Y. 610, distinguished.)

      Matter of Sienko v. Bopp &Morgenstern, 222 App. Div. 398, reversed.
    (Argued March 27, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 17,1928, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law and dismissing the claim.

      Leo J. Hickey for claimant, appellant.
    There is no evidence in the record that the carrier has been deprived of a substantial right against the third party; nor is there any evidence in the record that the deceased failed to diligently prosecute the action he instituted. (McKee v. White, 218 App. Div. 300; 244 N. Y. 610; Hughes v. St. Patrick’s Cathedral, 245 N. Y. 201; Aldeman v. Armstrong Pub. Co., 224 N. Y. Supp. 742; Bogold v. Bogold Bros., 218 App. Div. 676; 245 N. Y. 574.)

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for State Industrial Board, appellant.
    Compensation was due to Anton Sienko at the time of his death for disability due to accident and was properly made payable to his surviving wife. (Bogold v. Bogold Bros., 218 App. Div. 676; 245 N. Y. 574.)

      T. Carlyle Jones and Bernard J. Vincent for respondents.
    The carrier was deprived of a substantial right against the third party by the deceased’s failure to prosecute his action. (McKee v. White, 218 App. Div. 300; 244 N. Y. 610.) There was no compensation due at the time of the death of Anton Sienko. (Bogold v. Bogold Bros., 218 App. Div. 676.) An award for disability benefits may not be made after death, where death is not due to the accident. (Workmen’s Comp. Law, § 33.) The widow never filed a claim for disability benefits. Her claim is for death benefits. The deceased never made a claim for compensation but filed an election to sue which protects his right to a deficiency only but not her right for disability compensation. (Hughes v. Trustees of St. Patrick’s Cathedral, 245 N. Y. 201; O’Brien v. Knickerbocker Ice Co., 213 App. Div. 464; O’Brien v. Lodi, 246 N. Y. 46.)
   Crane, J.

This appeal requires the interpretation of section 33 of the Workmen’s Compensation Law (Cons. Laws, ch. 67), which reads:

“ In case of the death of an injured employee to whom there was due at the time of bis, or her death any compensation under the provisions of this chapter, the amount of such compensation shall be payable to the surviving wife or husband, if there be one, or, if none, to the surviving child or children of the deceased under the age of eighteen years, and if there be no surviving wife or children, then to the dependents of such deceased employee or to any of them as the Commission may direct. An award for disability may be made after the death of the injured employee.”

The amount of compensation here payable to the surviving wife must not be confused with the death benefit allowed by section 16 of the Workmen’s Compensation Law. Section 3 provides compensation for injuries or death incurred by employees in hazardous employments. If the injury causes death, section 16 provides that the compensation shall be known as a death benefit and shall be payable to the surviving wife or other dependents according to certain rates therein fixed. The compensation which under a claim filed may be due to the injured employee before he dies is not a death benefit. There may be, and frequently is, a lapse of time between the injury and the death of the employee. Perhaps compensation has been awarded to him and not yet paid, or it may be that an award for compensation has not yet been made, at the time of his death. In either case, if there is due him at the time of his death compensation under the provisions of the Workmen’s Compensation Law, this amount due him is payable to his widow. If death results from the injury she may have in addition a claim for death benefit under section 16. (Matter of Hughes v. Trustees of St. Patrick’s Cathedral, 245 N. Y. 201.)

A schedule of compensation is provided by section 15, subdivision 3 of which applies to permanent partial disability. It reads: In case of disability partial in character but permanent in quality the compensation shall be sixty-six and two-thirds per centum of the average weekly wages and shall be paid to the employee for the period named in this subdivision, as follows: ”

Then follows an enumeration of the number of weeks for which such compensation shall be provided for various lost members of the body. Attention should be given to the narrow limitations of the cases specified in subdivision 3. Numerous injuries to employees for which compensation is allowed do not constitute the permanent partial disability therein described. When an award has been made, let us say, for a lost arm, the amount will . be 66% per cent of the average weekly wages of the employee for 312 weeks. If he were getting $12 a week, he would receive $8 a week for this period. Suppose, however, that he should die of a disease before the period . expired. What would become of the award? To whom would it be payable? This is covered in the next subdivision, subdivision 4, the “ effect of award,” which .reads: An award made to a claimant under subdivision three shall in case of death arising from causes other than the injury be payable to and for the benefit of the persons following: ” who are the wife, husband or children.

The reason why this section is limited to death arising from causes other than the injury is because the widow or the dependent child would have a claim for death benefits under section 16 if the injury caused the death. When the injury, however, has not caused death, the award of weekly payments for this limited class of injury, permanent partial disability, may be continued for the wife and child. In other words, the weekly payments do not end with death.

How do these provisions of the Workmen’s Compensation Law apply to the facts of this case? Anton Sienko, sixty-nine years of age, was employed as a messenger by Bopp & Morgenstern, manufacturing opticians in Brooklyn, N. Y. On December 11, 1922, while crossing Nostrand avenue at Fulton street, Brooklyn, in the course of his employment, he was struck by an automobile and injured. On May 19, 1923, he filed an election with the Industrial Board to sue the third party, the owner of the automobile. Having brought such action, it was pending at the time of his death on the 18th of July, 1925.

The notice of election with claim for compensation for any deficiency constituted a claim for compensation made within the one-year limitation of section 28 of the Workmen’s Compensation Law. It was not necessary for the widow to file a further claim for disability compensation in order to assert whatever right thereto she had under that law. (Matter of Hughes v. St. Patrick's Cathedral, 245 N. Y. 201.)

As Anton Sienko died from causes unrelated to the accident sustained by him, the widow had no claim for a death benefit. She did claim, however, compensation which was due to him under the law because of his total disability to work from the date of the accident, December 11, 1922, until the date of his death, July 18, 1925. The board allowed this award, fixing compensation at the rate of $8 a week for 135-| weeks, amounting to $1,086.67.

The Appellate Division has reversed this award and dismissed the claim. One of the reasons assigned was that the death referred to in section 33 means death resulting from the injury, reference being made to section 2, subdivision 8, which reads: “ ‘ Death ’ when mentioned as a basis for the right to compensation means only death resulting from such injury.” The death of Anton Sienko is not the basis for his widow’s right to compensation. The basis of her claim is his injury for which he would have been entitled to compensation and an award during his life. It is now payable to her instead of to him because of his death. Death is not the basis of the claim or right to compensation, but the reason or basis for change in beneficiary. Subdivision 8 refers to death benefits. The basis for the right to compensation as a death benefit must be a death resulting from the injury.

The reason the words “ death arising from causes other than the injury ” were used in subdivision 4 of section 15 has already been stated. There is no need of continuing the weekly award where the death results from the injury as there is then a claim for a death benefit. Where, however, the death arises from causes other than the injury, the weekly award payment might end with death, and the widow receive nothing but for this section. Section 33, however, deals with a different matter altogether. It allows the widow or dependents in case of death from whatever cause the amount of a disability award which has not been paid to the injured employee in his lifetime. We think that if the word due ” in this section was limited to the bi-weekly payments in arrears referred to in section 25, the language would have been more specific.

Another objection to this award was the pending action brought by Anton Sienko against the third party, citing Matter of McKee v. White (218 App. Div. 300; affd., 244 N. Y. 610). In that case the claimant defaulted in the third party action and the case was dismissed. The default at least was his own fault. He then sought full compensation under an award, after the time had elapsed in which the insurance company could bring suit on the cause of action. It was properly held that he was estopped by his own acts from pursuing his remedy under the Workmen’s Compensation Law. This case is different. The employee died and his cause of action died with him. The action terminated as matter of law in the same way that it would have terminated had the defendant died or passed out of existence. Acts constituting estoppel or barring recovery are, therefore, not in this case. The injured employee had done nothing which would make it inconsistent for bis wife to claim compensation any more than it would have been inconsistent for him or her to claim compensation after the dismissal of the negligence case after a full and complete trial. The claim which he filed under section 20 asked for such deficiency compensation. His death in the eyes of the law was the same as a dismissal on the merits in this particular instance.

Our opinion is that the award was properly made in this case under section 33 for the reasons stated, and that the order of the Appellate Division should be reversed and that of the State Industrial Board affirmed, with costs in the Appellate Division and in this court.

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

Ordered accordingly.