text:
    United States Fidelity and Guaranty Company, Respondent, v. Graham and Norton Company, Appellant.

      (Submitted May 7, 1930,
    decided May 15, 1930.)

      Fred H. Rees for appellant.
    The plaintiff's only rights are under the provisions of section 130 of the Decedent Estate Law, and are not enlarged by section 29 of the Workmen's Compensation Law. (Exchange M. I. Ins. Co. v. C. H. Gas & Elec. Co., 243 N. Y. 75; Matter of Zirpola v. Casselman, 237 N. Y. 367.) The plaintiff is not the proper party plaintiff and not entitled to prosecute this action. (Matter of Zirpola v. Casselman, 237 N. Y. 367; Exchange Mutual Ins. Co. v. C. H. Gas & Elec. Co., 243 N. Y. 75; Travelers Ins. Co. v. Brass Goods Co., 239 N. Y. 273; Phœnix Ind. Co. v. Staten Island R. T. Ry. Co., 224 App. Div. 348; Travelers Ins. Co. v. Padula, 224 N. Y. 397.) In a subrogation case brought by an insurance carrier against an alleged third party wrongdoer for the wrongful death of a decedent, to whose dependents the insurance carrier has paid compensation, the carrier must prosecute the action through an administrator in all cases, except where the dependents to whom compensation was paid constituted all the next of kin of decedent. (Davis v. N. Y. C. & H. R. R. R. Co., 233 N. Y. 242; Matter of Zirpola v. Casselman, 237 N. Y. 367; Exchange Mutual Ins. Co. v. C. H. Gas & Elec. Co., 243 N. Y. 75; Decedent Estate Law, § 130; Matter of Anderson Estate, 84 App. Div. 550; Mundt v. Glokner, 24 App. Div. 110.)

      Harry W. Williams for respondent.
    The plaintiff herein was entitled under the provision of the Workmen’0 Compensation Law, section 29, to whatever cause of action the widow and five dependent children had upon the payment to them of the compensation duly awarded under the Workmen’s Compensation Law. (U. S. F. & G. Co. v. Graham & Norton Co., 228 App. Div. 45; Matter of Zirpola v. Casselman, 237 N. Y. 367; Hanke v. New York Consolidated R. R. Co., 181 App. Div. 53; Phœnix Ind. Co. v. Staten Island R. T. Ry. Co., 251 N. Y. 127.) The plaintiff is the proper party and is entitled to prosecute this action. (Phœnix Ind. Co. v. Staten Island R. T. Ry. Co., 251 N. Y. 127; Travelers Ins. Co. v. Brass Goods Mfg. Co., 239 N. Y. 273.) In a subrogation case brought by an insurance carrier against an alleged third party wrongdoer for the wrongful death of a decedent, to whose dependents the insurance carrier has paid compensation, the carrier must prosecute the action in its own name as the real party in interest. (Civ. Prac. Act, § 210; Phœnix Ind. Co. v. Staten Island R. T. Ry. Co., 251 N. Y. 127; Travelers Ins. Co. v. Padula Co., 224 N. Y. 397; Travelers Ins. Co. v. Brass Goods Mfg. Co., 239 N. Y. 273.)
   Pound, J.

Edward Streeter died as the result of an accident arising out of and during the course of his employment, alleged to be due to the negligence of another not in the same employ. He left a widow and six children. Five of the children were included in the group of dependents under the age of eighteen years, who with the widow, came under the protection of the Workmen’s Compensar tion Law (Cons. Laws, ch. 67). The sixth child, although belonging to the group of next of kin, did not come within the group of dependents protected by the Workmen’s Compensation Law.

The widow and the five dependent children, as was their right, elected to take compensation rather than to pursue the statutory remedy, through the appointment of an administrator, against the alleged wrongdoer for causing death by negligence or wrongful act. They received an award which has been paid. The result was an assignment to the insurance carrier of their beneficial interest in such cause of action. The insurance carrier thereupon brought this action in its own name and right against the alleged wrongdoer to recover the interest of the widow and dependent children only in such a recovery as an administrator might have secured had one been appointed and instituted Suit.

This court held in Matter of Zirpola v. Casselman, Inc. (237 N. Y. 367, 375), overruling in this respect much that was said, if not actually decided, in Travelers Ins. Co. v. Padula Co. (224 N. Y. 397) as follows: If dependents, electing to assign, are members of the class of next of kin * * * but not all the members of that class, their assignment will be effective to the extent of their beneficial interest and no farther, and the carrier, like any other beneficiary, must prosecute through the administrator as the statutory trustee, and may compromise or release its own interest, but no other.”

The court below was of the opinion that the rule thus definitely stated had. in effect been overruled by Phœnix Ind. Co. v. Staten Island R. T. Ry. Co. (251 N. Y. 127; affd., 281 U. S. 98).

The question in the Staten Island case considered in this connection was one of statutory construction. Workmen’s Compensation Law, section 15, subdivisions 8 and 9, provided that the insurance carrier shall pay to the State Treasurer for every case of injury causing death in which there are no persons entitled to compensation, two sums of $500 each.

Section 29 of the law provides that in case of the payment of such an award to the State in accordance with such subdivisions, “ such payment shall operate to give to the * * * insurance carrier hable for the award a cause of action for the amount of such payment together with the reasonable funeral expenses and the expense of medical treatment which shall be in addition to any cause of action by the legal representatives of the deceased.” The insurance carrier had paid the amount into the State Treasury. The legal representatives of the deceased had settled the death action. It was contended that the insurance carrier had therefor lost its right of recovery. The language quoted from section 29 was ambiguous. The court quoted with approval the following language in the Padula case: A civil liability and the right to recover damages for a wrongful act or neglect causing death are created solely by statute. At common law no civil action would lie for causing the death of a human being. Legislative enactment.is the exclusive source and boundary of the liability and the remedy. It may create the cause of action, define the period of its existence, and the party by whom and the method in which it shall be enforced and prescribe the measure of damages and the beneficiaries.”

The question arose whether the words in addition to ” added the insurance carrier to the group protected by the death statute or created an independent cause of action. The decision on this point was not intended to overrule the Zirpola case. The holding was that, the cause of action conferred on the insurance carrier by section 29 after payment into the State Treasury, was no part of the cause of action vested in the personal representatives of the deceased to recover damages for death by negligence for the benefit of enumerated beneficiaries, but was an independent cause of action based on the payment of a.penalty for the benefit of injured workmen generally, imposed by the Workmen’s Compensation Law, which was unaffected by the settlement of the death action by the personal representatives of the deceased.

The effect of the decision below is quite different. It results in the splitting of a single cause of action; i. e., the cause of action vested in the personal representatives to recover for the benefit of the widow and next of kin the damages sustained by them. The rule against splitting causes of action is a salutary one. In the absence of some statutory mandate to the contrary, the alleged wrongdoer should not be put twice to his defense on the same cause of action. The authority of the Zirpola case was not impaired by the later decision in the Staten Island case. The action should have been brought through an administrator as the statutory trustee of the entire group of beneficiaries.

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

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Fairview-Chase Corporation, Appellant and Respondent, v. Phillip Scharf, Appellant, and Alice McCoy, Respondent.
    (Argued March 25, 1930;
    decided May 15, 1930.)

      Frank C. Laughlin and Stewart W. Bowers for appellant.
    The recovery against the defendant Scharf cannot be sustained on the theory that it is for damages for fraud. (Reno v. Bull, 226 N. Y. 546.) The trial court having found that no misrepresentations were made to the plaintiff or relied upon by the plaintiff, and the plaintiff being a mere assignee of the lease it clearly has no right of action against the defendant Scharf. (Rosenwasser v. Blyn Shoes, 246 N. Y. 340; Ettar Realty Co. v. Cohen, 163 App. Div. 409; Fox v. Hirschfeld, 157 App. Div. 364.) The judgment in the dispossess proceedings is an adjudication against the plaintiff on all the material allegations of its complaint and is binding upon it as to the defendant Scharf. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Rich v. Cochran, 151 N. Y. 122; Hermitage Co. v. Levine, 248 N. Y. 333; Susquehanna S. S. Co. v. Anderson & Co., 239 N. Y. 285; First National Bank v. Chalmers, 134 N. Y. 43; Rector v. Teed, 120 N. Y. 583; Hamilton v. Hamilton, 127 App. Div. 871; Gifford v. Corrigan, 117 N. Y. 257; City of New York v. New York City Ry. Co., 193 N. Y. 543.)

      Abraham J. Halprin for plaintiff, respondent and appellant.
    The default judgment entered in the dispossess proceeding does not bar a recovery by the plaintiff. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Meyerhoffer v. Baker, 121 App. Div. 796; Prince v. Jacobs, 80 App. Div. 243; Folger v. Raczek, 167 App. Div. 167.) The plaintiff’s assignor did not receive the title it bargained for. (Schulman v. Cornman, 221 App. Div. 170; McCarter v. Crawford, 245 N. Y. 43; Flickinger v. Glass, 170 N. Y. Supp. 459; Paine v. Upton, 87 N. Y. 327; Paul v. Swears, 138 App. Div. 638; Rahen v. Risnikoff, 95 App. Div. 68.)

      Harold Nathan, Mortimer Brenner and Joseph Solomon for defendant, respondent.
    The judgment in the dispossess proceedings is an adjudication against the plaintiff on all of the material allegations of its complaint. (Last

      Chance Mining Co. v. Tyler Mining Co., 157 U. S. 683; Reich v. Cochran, 151 N. Y. 122; Nemetty v. Naylor, 100 N. Y. 562; Brown v. Mayor, 66 N. Y. 385; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Jacobson v. Miller, 41 Mich. 90; Townsend v. Read, 13 Daly, 198; Phipps v. Oprandy, 69 App. Div. 497; Zerega v. Will, 34 App. Div. 488; Hawkins v. Ringler & Co., 47 App. Div. 262; Pierson v. Hughes, 102 N. Y. Supp. 528; Drydock R. R. Co. v. North & East River Co., 3 Misc. Rep. 61; Hughes v. Goldstein, 124 Misc. Rep. 518; Hafner v. Collins, 177 N. Y. Supp. 868; Solomon v. Gleichenhaus, 131 N. Y. Supp. 599; Cromwell v. County of Sac, 94 U. S. 357; Bissell v. Spring Valley Township, 124 U. S. 225; New Orleans v. Citizens Bank, 167 U. S. 371; New York Life Ins. Co. v. Bangs, 103 U. S. 780.) The plaintiff’s assignor
    did not rely upon any alleged misrepresentation as to the demised property. (Long v. Warren, 68 N. Y. 426; Vandewalker v. Osmer, 65 Barb. 556; 56 N. Y. 658; De Milt v. Hill, 89 Hun, 56; Kaston v. Zimmerman, 192 App. Div. 511; Southern Dev. Co. v. Silva, 125 U. S. 247; Farrar v. Churchill, 135 U. S. 609; Kreshover v. Berger, 135 App. Div. 27; McCarter v. Crawford, 245 N. Y. 43; Nasha Holding Corp. v. Ridge Building Corp., 221 App. Div. 238.) Plaintiff’s assignor received exactly the title bargained for. (Nasha Holding Corp. v. Ridge Building Corp., 221 App. Div. 238; Schulman v. Cornman, 221 App. Div. 170; Wendell v. People, 8 Wend. 183; Jackson v. Frost, 5 Cow. 346; Brown v. Huger, 21 How. 305; Northern Pacific Ry. Co. v. United States, 191 Fed. Rep. 947 ; 227 U. S. 355.)

      Jay Leo Rothschild, amicus curice.

   Per Curiam.

The complaint was properly dismissed as against the defendant McCoy, the maker of the lease. The final order in the summary proceeding to dispossess the tenant is an adjudication, conclusive in favor of the landlord as against the other party to the proceeding, that there was a valid and subsisting tenancy (Reich v. Cochran, 151 N. Y. 122).

The complaint was properly upheld as against the defendant Scharf, though we relieve him of the imputation of any actual fraud. The default in the dispossess proceeding resulted in an affirmance of the lease as between the landlord and the tenant. It did not determine the effect of an independent contract between tenant and attorney. If resort be had to that contract to determine the attorney’s obligations, the conclusion, we think, follows that the deposit must be returned in so far as it includes the compensation which he was authorized to retain in specified contingencies. We think the title company did not give such a certificate of a marketable title to the leasehold as was within the contemplation of the parties to the escrow agreement (Paine v. Upton, 87 N. Y. 327; Higinbotham v. Stoddard, 72 N. Y. 94), and the condition has never been satisfied upon which the attorney was at liberty to pay the money to himself.

The judgment should be affirmed with costs to the plaintiff against the defendant Scharf, and with costs to the defendant McCoy against the plaintiff.

Cabdozo, Ch. J., Crane, Lehman and O’Brien, JJ., concur; Pound, Kellogg and Hubbs, JJ., dissent and vote for reversal as to the defendant Scharf.

Judgment accordingly.


author: Cardozo, Ch. J.

text:
    In the Matter of the Claim of Nicholas Glielmi, against Netherland Dairy Co., Inc., Respondent. State Industrial Board, Appellant.
    (Argued May 12, 1930;
    decided June 3, 1930.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for appellant.
    The arrangement between the claimant and the respondent made a relationship of master and servant and not of independent contractor. (Matter of Maher v. Commander Taxi Corp., 227 App. Div. 832; Singer Mfg. Co. v. Rahn, 132 U. S. 518; Terry Dairy Co. v. Parker, 223 S. W. Rep. 6.) Direction and control are the main elements which constitute the relation of master and servant. (Matter of Pierce v. Bowen, 247 N. Y. 305.)

      Roland Ford and Oscar J. Brown for respondent!
    The claimant is an independent contractor. (Engle v. Eureka Club, 137 N. Y. 100; Uppington v. City of New York, 165 N. Y. 222; Singer Mfg. Co. v. Rahn, 132 U. S. 518; Terry Dairy Co. v. Parker, 144 Ark. 401.)
   Cardozo, Ch. J.

The question to be determined is whether claimant was a servant within the meaning of the Workmen’s Compensation Act and so entitled to an award.

The Netherland Company, Incorporated, was the owner of a dairy in the city of Syracuse. Its business was divided into routes, and separate routes were allotted to separate salesmen. One of these routes, described as No. 43, went to the claimant Glielmi, who was employed under a written contract. By this contract, which describes him as a salesman, he is given the privilege of making sales of milk and cream along the route allotted to him and no other; he is to make daily payments of cash for any milk disposed of, retaining for himself four cents per quart for milk and three cents per half pint for cream, the percentage to be reduced if there is a reduction of the retail price; he is to sell the company’s products and not those of its competitors; he is to use the company’s horses and vehicles exclusively, paying a stated price per day for its wagon and its horses; he is to have the privilege of returning any milk or cream unsold; if cash is not received, he may require the company to assume and collect for a fee the monthly accounts of responsible customers; he is to obey the orders of the company as to the care of the horses and the wagon; he is to permit the company’s representative to ride with him at any time and supervise his handling of the route; he is to assume liability for loss or breakage, and is to make a deposit with the company as security for full performance; he is to be employed for a term of twelve months, but he may terminate the employment upon a notice of three weeks, and the company upon its side may put an end to it at will.

Claimant while driving a wagon in accordance with this contract was thrown out and injured. The State Industrial Board held him to be a servant, and made an award of compensation. The Appellate Division held that he was either a bailee or a joint adventurer or an independent contractor, but in no event a servant, and so dismissed the claim. An appeal by the State Industrial Board brings the case to this court.

We think there is evidence to sustain the finding of the Board that claimant was a servant, employed to sell the milk and cream of his employer in return for a commission. The contract is adroitly framed to suggest a different relation, but the difference is a semblance only, or so the triers of the facts might find. There is significance in the very description of the claimant; he is to be “a salesman,” not a jobber. He is to travel a prescribed route; to use an allotted horse and wagon; to submit to supervision at the pleasure of his employer, and to hold himself subject to discharge at will. The milk and cream that he vends does not belong to him. He vends it for the company. What he does not dispose of, he returns, and if he withholds the proceeds of a sale in excess of his commission, he takes something not his own. In the event of a sale on credit, or a failure to collect the cash, he is accountable at the end of the day as if cash had been received, but the company will relieve him of the guaranty and assume the collection of the accounts, if the customers are good. We may be sure that seldom, if ever, will he choose to give a term of credit unless satisfied that the favored customer is approved by his employer. Much of his apparent freedom is in truth apparent only. He may sell for a price in excess of the schedule made known to the public; but it is plain that if he tries to do so, the customers will refuse to buy. Indeed, the witnesses for the employer very frankly concede that a sale above the schedule was a contingency too improbable for them to have to reckon with it at all. He may sell for less than the retail price, and does so to the wholesale trade, but in that event the difference comes out of his commission, so that the profit to the company is unaffected by the change. If he does anything at variance with the will of his employer, its policy or preference, he knows that his contract of employment may be ended over night. He is bound hand and foot as long as he works the route at all, bis freedom an illusion and his independence but a name.

Problems not dissimilar have arisen in connection with the use of hackney coaches and taxicabs. In this State, the same Appellate Division that ruled against this claimant held the driver of a taxicab to be a-servant though paid by the day through a percentage of receipts (Matter of Maher v. Commander Taxi Corp., 227 App. Div. 832). In England there is a prima facie inference that the driver of a hackney cab, employed upon such terms, is a bailee as to the owner, though not as to the public (Doggett v. Waterloo Taxi-Cab Co., Ltd., [1910] 2 K. B. 336), but the inference even there is generally one of fact, and slight differences will suffice to put him in the category of a servant (Smith v. General Motor Cab Co., Ltd., [1911] A. C. 188; Labatt, Master & Servant, vol. 1, § 75). The thought back of the decisions enforcing the presumption has been summarized in a pithy line. “ The cab proprietor hands over the horse and cab to the charge of the driver, to be used by him for the purpose of plying for hire at his own discretion and not subject to the proprietor’s control ” (Cock-burn, C. J., in Venables v. Smith, L. R. 2 Q. B. D. 279). Here the situation is different altogether. The salesman has no discretion as to the manner of performance, or none that is substantial. He travels a prescribed route from which he may not deviate. If he fails to work it diligently, he knows that there will be an end of his employment as surely as if he were working for a stated wage. On the one side there is an intimacy of control and on the other a fullness of submission that imports the presence of a “ sovereign,” as the master, we are reminded, was sometimes called in the old books (Driscoll v. Towle, 181 Mass. 416, 418; Charles v. Barrett, 233 N. Y. 127, 129). The facts are near of kin to those in Singer Mfg. Co. v. Rahn (132 U. S. 518), where under mystifying words the relation of master and servant was discovered and exposed (cf. Terry Dairy Co. v. Parker, 144 Ark. 401). The existence of that relation, if it may not be adjudged as an inference of law, is, at least, upon this record, a legitimate inference of fact (Smith v. General Motor Cab Co., Ltd., supra). When conflicting inferences are possible, the finding of the Board prevails.

The order of the Appellate Division should be reversed, and the award confirmed, with costs in the Appellate Division and in this court.

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

Order reversed, etc.


author: Pound, J.

text:
    Peter Kilmer, Respondent, v. Mollie White, Appellant, Impleaded with Others.

      (Argued May 8, 1930;
    decided June 3, 1930.)

      William E. Woollard for appellant.
    The occasional use by workmen employed by the landlord of a scuttle in the ceiling of a piazza, for the purpose of reaching the roof to make repairs thereto, does not render the piazza a common passageway which the landlord is bound to keep in repair, in the absence of an express reservation in the lease of the right of passage. (Peil v. Reinhart, 127 N. Y. 381; Dollard v. Roberts, 130 N. Y. 269; O’Dwyer v. O’Brien, 13 App. Div. 570.) Defendant and her workmen passed through the premises leased to plaintiff as licensees, and their doing so did not have the effect of stamping the piazza over which they passed as a part of the premises, reserved by the landlord for common use. (Fargis v.
      Walton, 107 N. Y. 402.) The relation of landlord and tenant, as between the defendant White and the plaintiff was dissolved by the sale and transfer of the premises. (Matter of O’Donnell, 240 N. Y. 99; Stogop Realty Co., Inc., v. Marie Antoinette Hotel Co., 217 App. Div. 555; Proctor Troy Properties Co. v. Dugan Store, 191 App. Div. 685; Real Prop. Law, §§ 223, 248.) Liability of the defendant White for the injuries of the plaintiff can be predicated neither upon the relation of landlord and tenant nor upon contract. (Junkerman v. Tilyou Realty Co., 213 N. Y. 404; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245.) The sale and transfer of the premises by the defendant White relieved her from liability for an injury thereafter happening to a tenant predicable on neglect to make necessary repairs. (Jaffe v. Harteau, 56 N. Y. 398; Trustees of Canandaigua v. Foster, 156 N. Y. 354; Wilks v. New York Tel. Co., 243 N. Y. 351; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245; Franklin v. Brown, 118 N. Y. 110; Daly v. Wise, 132 N. Y. 306.) The sale and transfer of the premises by the defendant White relieved her from liability for an injury thereafter happening to a tenant predicable on nuisance. (Mayor v. Cunliff, 2 N. Y. 165; Blunt v. Aiken, 15 Wend. 522; Hanse v. Cowing, 1 Lans. 293; People v. Livingston, 27 Hun, 106; Waggoner v. Jermain, 3 Denio, 311; Swords v. Edgar, 59 N. Y. 34; Walsh v. Mead, 8 Hun, 391; Covert v. Cranford, 141 N. Y. 521; Wilks v. N. Y. Tel. Co., 243 N. Y. 360.)

      Henry J. Crawford for respondent.
    The owner of a three-story apartment building, with a piazza attached to the rear of each floor, connected with each other and to the ground by stairs, and each floor rented to and occupied by a separate tenant, may be held responsible to the tenant of the third floor for injuries caused by the giving way of the rotten and defective railing of said third floor piazza, where it appears that a scuttle hole in the ceiling of the third floor piazza is the only means that the owner has of access to his roof, and that he has reserved the use of the third floor piazza in connection with the other piazzas and stairways as a means of access to the roof of his building. (Shinberg v. Strauss, 211 App. Div. 827.) An owner of an apartment house, who had rented one of the apartments to a tenant, cannot escape liability for injuries caused to said tenant by defects in portions of the premises retained by him for his own use in common with the tenants, by parting with the title to the entire premises three days before the accident; before the termination of his lease with the injured tenant; and, without notice to the tenant; without informing the new owner of the defect; before the new owner has actual notice of the defects or reasonable time to discover same, and while the former owner is still enjoying the benefit of rent of the premises paid him by the injured tenant. (Junkerman v. Tilyou Realty Corp., 213 N. Y. 404; Mauro v. Alvino, 152 N. Y. Supp. 963; Grober v. Norton, 183 N. Y. Supp. 731; Neal v. Jefferson, 99 N. E. Rep. 334; Jones v. Parker, 40 N. E. Rep. 1044; Stuart v. Jay, [1904] 1 K. B. 362; Obermeier v. Mattison, 192 Pac. Rep. 283.)
   Pound, J.

Appellant had owned a three-story apartment house on Lexington avenue in the city of Albany. Each floor was leased to a separate tenant. She had leased the upper apartment to respondent from month to month without a written lease. His tenancy began on April 20, 1926. On October 28, 1927, appellant had conveyed the premises to Joseph and Jennie Rubin by deed dated that day and recorded on the following day. The Rubins entered into possession. Thereafter, on October 31, 1927, respondent leaned against the railing of the piazza in the rear of his apartment. The top rail, made of a piece of two by four laid flat, gave way and he lost his balance, falling to the ground below and sustaining injuries for which he has recovered judgment. His contention is that although the rail appeared to be sound, it was in fact rotten and insecurely fastened to the building and had been for some time before the accident and when respondent moved in. The evidence tended to show that appellant had notice of the defective condition in July or August, 1926, but that the respondent had not discovered it. The action was originally brought against the Rubins also, but a nonsuit was granted as to them. The case was submitted to the jury as one of negligence.

The trial justice submitted the case to the jury on the theory, first, that as respondent had paid the rent to the appellant to the end of the month and had received no notice of the transfer of ownership, he was still the tenant of the appellant and, secondly, that if the appellant had reserved to herself the common use of the piazza as a means of access to the roof, which she had undertaken to keep in repair (Dollard v. Roberts, 130 N. Y. 269, 273; Hirsch v. Radt, 228 N. Y. 100, 104), she was bound to exercise due diligence in keeping the railing in repair as a part of the common ways (Peil v. Reinhart, 127 N. Y. 381) although the landlord is under no general obligation to keep leased premises in repair (Doupe v. Genin, 45 N. Y. 119, 122) or to put the premises in repair before he leases them. (Campbell v. Holding Co., 251 N. Y. 446, 448.)

The second proposition has been determined by the jury in favor of respondent as a question of fact although it does not appear that appellant was more than a mere licensee. The rule as stated is applied only to passages, stairways and the Eke, used in common by the different tenants of one building, and not to cases where the tenant merely permits the landlord to pass through leased premises to reach the roof conveniently.

The trial justice erred in charging the jury that, so far as the tenants are concerned, notice of the change in possession and ownership was necessary to change the nature of their tenancy. Respondent had ceased to be the tenant of appellant when the accident occurred. “ The transfer of the reversion, whether with the consent of the tenant or -without it, is a transfer of the lease and of its rights and obligations.” (Matter of O’Donnell, 240 N. Y. 99, 105.) One’s liability in negligence for the condition of land ceases when the premises pass out of one’s control before injury results. Such is the general rule. (Trustees of Canandaigua v. Foster, 156 N. Y. 354, 359; Wilks v. New York Tel. Co., 243 N. Y. 351, 359.) To this rule, certain exceptions arise. The landlord is liable if he leases premises for the use of the public when he knows that they are unsuited therefor. The nature of the use creates the duty. (Junkermann v. Tillyou Realty Co., 213 N. Y. 404, 409.) Other conditions may give rise to other exceptions. If the landlord has been guilty of conscious deception or has covenanted to repair, he is not exempt from liability for dangerous conditions. (Jaffe v. Harteau, 56 N. Y. 398.) The 'lessor, in the absence of any agreement or fraud, is not liable to the private tenant for the present or future condition of the premises on any principles that would not be equally applicable to a similar liability imposed upon a grantor in fee after he had parted with possession. (Jaffe v. Harteau, supra, p. 401.)

Another exception for the benefit of third parties may be noted. “A person who has been in possession and control of premises on which a nuisance exists, and then leases or in other manner parts with control of the premises under circumstances from which inference may be drawn that he authorized its continuance or profited therefrom, may be held Hable for any damages suffered by reason of the continuance of the nuisance thereafter.” (Zolezzi v. Bruce-Brown, 243 N. Y. 490, 498; Timlin v. Standard Oil Co., 126 N. Y. 514; Wilks v. New York Tel. Co., supra; Klepper v. Seymour House Corp., 246 N. Y. 85.)

A nuisance may be a dangerous condition due to negHgence. (Klepper v. Seymour House Corp., supra; McFarlane v. City of Niagara Falls, 247 N. Y. 340.) But from the act of transfer of title and possession in itself no inference can arise that the vendor either authorized the continuance of the dangerous condition or intended to profit thereby. (Zolezzi v. Bruce-Brown, supra.)

The question thus arises as to the liability of the vendor for dangerous conditions existing at the time when he unqualifiedly transfers title and possession to the vendee. A proper rule applicable to such cases has been proposed in Tentative Draft No. 4 of the Restatement of the Law of Torts of the American Law Institute as follows:

“ Section 222. General Rule of Non-Liability for Dangerous Conditions Existing at Time Vendor Transfers Possession. Except as stated in Section 223, a vendor of land is not subject to liability for bodily harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.”

“ Section 223. Liability for Concealed Dangerous Conditions Known to Vendor. A vendor of land, who conceals or fails to disclose to his vendee any condition whether natural or artificial involving unreasonable risk to persons upon the land, is subject to liability for bodily harm caused thereby to the vendee and others upon the land in his right, after the vendee has taken possession, if

“ (a) the vendee does not know of the condition or the risk involved therein, and

(b) the vendor knows of the condition and the risk involved therein and has reason to believe that the vendee will not discover the condition or realize the risk.”

Under this rule a vendor, innocent of conscious deception, is entitled to expect that bis vendee will discover a condition which would be disclosed by such an inspection as the vendee should make before taldng possession. On the other hand, if the vendor conceals a dangerous condition known to him, as by painting it over, or by giving assurances that the premises are safe when he knows the contrary to be the fact, he is not entitled to assume that the vendee will discover the condition in time to prevent injury to others. The vendor desires to sell the property. Knowledge by the vendee of its true condition might prevent a sale. Therefore, the vendor’s conduct must be such that it will not prevent the vendee from learning of the concealed defects by making a proper inspection. Otherwise, the vendor remains subject to liability for harm caused to the licensees of the vendee until the vendee has discovered the true condition. The fault is his and the liability is bis. (See Comment on Sections 222, 223, Restatement,. Tentative Draft No. 4, pp. 189-191.)

The New York rule, so far as expressed by this court, does not cast on the vendee any duty of inspection before taking possession. It has been broadly stated, although by way of dictum merely, that the vendee is not responsible for the dangerous condition of the premises until he has had notice thereof and a reasonable time to repair it. (Ahern v. Steele, 115 N. Y. 203.) It was argued in support of the holding that to cast on the vendee responsibility for an accident which happened within an hour or a day after taking possession would be to punish him for another’s fault. This rule, if applicable generally, would carry the vendor’s responsibility somewhat further than the restatement does, for it would be abho.rent to our notions of justice to relieve the vendor before fixing liability on the vendee.

Such is the rule so far as it has been stated by this court. It should be noted, however, that Ahern v. Steele (supra) was decided by a closely divided court; that all that was essential to the decision was the holding that persons who acquire title to a pier under a will, upon the death of a prior owner, subject to an outstanding lease, the pier being out of repair at the time the lease was made and at the time of the accident for which they were sought to be held liable, are not responsible, without actual notice of the condition of the pier; that Danforth, J., dissenting, held that “ as soon as the defendants acquired the right to the possession of the pier, or to the rents, they were bound to know its condition and at once guard against the [obvious] danger to which the public had been before exposed ” (p. 238); and that what was said by way of dictum in reference to the liabilities of the parties would not, in the absence of such an outstanding lease at the time of the devolution of title, apply to a dangerous condition which proper inspection could reveal. The defendants in the Ahern case had neither the title to the property nor its possession nor any control over it when the dangerous condition was created or before they acquired title under the will. Such a rule of non-liability would not be extended to cover the case where the vendee took title from the possessor without actual knowledge but with notice, actual or presumptive, of the dangerous condition and the risk.

Earl, J., in the Ahern case himself in substance (at p. 213) says, the mere fact that the owner personally occupies the premises upon which the dangerous condition exists is enough to charge him with notice of its existence unless it is “ of such a character that he may not know of its harmful tendency.” This rule approximates the doctrine of the Law Institute "as above stated and leaves the general rule in New York in substantial accord with the Restatement.

The general tendency has been to look no further back than the last wrongdoer, especially when he has complete and intelligent control of the consequences of the earlier wrongful act.” (Holmes, J., in Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49; cf. Roberts v. Georgia Ry. & Power Co., 151 Ga. 241, and annotations, 14 A. L. R. 1089.)

What we have said in this connection does not imply that the new landlord was under any obligation to repair the premises for the benefit of the tenant. It is enough for the purposes of this case to hold that no liability on the part of the appellant has been established under the relation of landlord and tenant. Indeed it has been said with much force: The ground of liability upon the part of a landlord when he demises dangerous property, has nothing special to do with the relation of landlord and tenant. It is the ordinary case of liability for personal misfeasance, which runs through all the relations of individuals to each other.” (Willcox v. Hines, 100 Tenn. 538, 549). Respondent had ceased to be the tenant of the appellant and had become the tenant of the vendee. As such his relation to appellant was that of one on the premises as the licensee of the vendee. If respondent is to recover, he must rely on the rules which govern the liability of one who sells land with dangerous conditions existing thereon at the time of the transfer.

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

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

Judgments reversed, etc.


author: Crane, J.

text:
    Abraham Lapides, Respondent, v. Rose H. Lapides, Appellant.

      (Argued May 13, 1930;
    decided June 3, 1930.)

      Peter P. Smith, James J. McLoughlin, Dominic B. Griffin and Henry Simon for appellant.
    The finding of the Appellate Division that the defendant was suffering from epileptic fits at the time of her marriage is against the weight of evidence. (Exchange B. & R. v. Rifkin, 245 N. Y. 260; Boyd v. Boyd, 252 N. Y. 422.) Fraud must be established, not presumed. (McGill v. McGill, 179 App. Div. 343; Dorn. Rel. Law, § 7; Civ. Prac. Act, § 1139; Tucker v. United Life & A. A. Soc., 133 N. Y. 548; Gumbiner v. Gumbiner, 72 Misc. Rep. 211; di Lorenzo v. di Lorenzo, 174 N. Y. 467; Svenson v. Svenson, 178 N. Y. 54; Domschke v. Domschke, 138 App. Div. 454; Watkins v. Watkins, 197 App. Div. 489; O’Connell v. O’Connell, 201 App. Div. 338; Rutstein v. Rutstein, 221 App. Div. 70.) The fraud sufficient to annul a marriage after consummation must be material. (Griffin v. Griffin, 122 Misc. Rep. 837.)

      Guernsey Price and David Cohen for respondent.
    Fraudulent concealment of epilepsy is ground for annulment. (di Lorenzo v. di Lorenzo, 174 N. Y. 467; McGill v. McGill, 179 App. Div. 343; Elser v. Elser, 160 N. Y. Supp. 724; People ex rel. Plumley v. Higgins, 109 Misc. Rep. 328; Weill v. Weill, 104 Misc. Rep. 561; Gould v. Gould, 78 Conn. 242.) In matrimonial actions the court will realize that a husband alleging fraud on the part of his wife cannot bring that degree of proof which is often available in other types of actions. (Allen v. Allen, 101 N. Y. 658; Moller v. Moller, 115 N. Y. 466; Gregory v. Binghamton Trust Co., 168 App. Div. 805; Sommer v. Oppenheim, 19 Misc. Rep. 605.)
   Crane, J.

The maiden name of the defendant was Rose H. Dombroff, and she was thirty-five years of age at the time of her marriage to the plaintiff on the 27th day of June, 1926. Since the year 1911 she has been a teacher in the public schools of the city of New York. She taught in Public School No. 13, at Essex and East Hudson streets, Manhattan, and in Public School 146, at Eighteenth street between Sixth and Seventh avenues in the same borough. The official records of the Board of Education show that her attendance has been very regular, with few absences, and these accounted for either because of the Jewish holidays or because of slight indispositions resulting from the flu and a railroad accident. Her rating as a school teacher has been high, and she was never late in arriving at her work. The principal of Public School No. 13, the secretary of the Association of Retired Teachers, and the assistant principal of Public School No. 146 have supplemented these official records with their own testimony to Miss Dombroff’s ability and regularity as a teacher.

Those of us who have attended the public school, or know anything about the duties of a public school teacher, realize that the supervision and training of a large class of boys or girls, drawn from all sections and conditions ' in our great city, is no easy task, and makes heavy demands upon mental and nervous energy. Miss Dombroff continued her teaching for fifteen years up to October of 1926. She returned to her duties as a public school teacher in September of 1927, and since February 1, 1929, has been teaching at Public School No. 36, Bushwick avenue, Brooklyn.

During the interval between October, 1926, and September of 1927, things happened which have been the basis of this litigation. The plaintiff, Abraham Lapides, kept company ” with this school teacher for many months, seeing her frequently every week. He gave her an engagement ring, and in June of 1926 he married her. They lived together as man and wife, she fulfilling all the obligations, duties or privileges usually accompanying that position. She became pregnant, which caused her resignation as a school teacher in October of 1926, as above stated. One day that month she lost her engagement ring, and sent for her husband. Much excitement followed. He describes it in these words: “ You know there should be excitement, a man of your ability should know there should be excitement when a person loses an engagement ring, the first ring she got.” The wife became unconscious, fell to the floor, was put to bed, neighbors came in, relatives were sent for, even the policeman. It is said that she had a fit of some kind, that her eyes rolled, that she foamed at the mouth. Apparently there was no privacy. Dr. Washnitzer had been treating the wife, or consulting with her during the previous months of pregnancy. He was sent for. Another doctor, Dr. Mendelevitz, came in. The husband again describes the scene: When I came back I found Dr. Mendelevitz attending to her, and just as soon as I entered the apartment, Dr. Washnitzer came running in from the outside, and he said to Dr. Mendelevitz, ‘ She is my patient.’ And during that time they pulled her into the bedroom — here was the kitchen and there was the bedroom, and they pulled her right on, and Dr. Washnitzer said, ' She is my patient, leave her alone, and I am taking care of her.’ Dr. Mendelevitz went away, and Dr. Washnitzer went into the bedroom, took her mother and sister Mollie into the bedroom, shut the bedroom door, put a curtain on top of the bedroom and he kept — he said nobody should enter the bedroom, and he kept everybody out. Then a little later — pardon me, then a little later, Dr. Washnitzer came out from the bedroom, and he rushed right out. I gave him $10 for the fee. I have a check there. Would you mind showing the check?

Shortly after this, the wife had double pneumonia, and in the latter part of February, 1927, gave premature birth to the child, which lived only twenty-two to twenty-six days. In April the husband says that while they were eating breakfast she got up from the table, went out of the room into her bedroom, where she fell on the floor, blood coming from her mouth, her eyes bulging. She was unconscious. Dr. Washnitzer says that the husband, with his lawyer, a Mr. Goldman, called upon him, and that he told them he thought the attacks were epilepsy. Thereupon the husband left the wife and brought this action to annul the marriage on the ground that the defendant was incapable of entering into the marriage state, as she was suffering from epilepsy, and that she fraudulently concealed the fact. The Special Term, after hearing all the evidence, dismissed the case, but the Appellate Division, on appeal, reversed the judgment and decided in favor of the plaintiff, annulling the marriage on the ground stated, one of the justices dissenting and one voting for a new trial. Rose Lapides, who has thus been found incapable of being a wife because of epilepsy, has proved to be an efficient teacher of our children in the public schools for over twenty years.

There is no evidence to justify this finding of the Appellate Division. Conceding that the spells in November of 1926 and April of 1927 were epileptic seizures, there is no probative evidence to show that the wife ever had such attacks before. Two school children were called by the plaintiff to prove that as a teacher she occasionally held her head in her hand as though she were tired, and a workman said that once when hanging curtains, the defendant fell to the floor. Hypothetical questions based upon the testimony of the husband and the neighbors were asked of experts who gave it as their opinion that the attacks in November and in April must have been epileptic spells. Upon a physical examination these same doctors could find nothing the matter with the defendant. A gynecologist from the Williamsburg Hospital, consulting obstetrician, said that the attacks were due to a toxemia frequently occurring during pregnancy and for several weeks thereafter. There is no evidence in the case sufficient to support a finding that the defendant had epilepsy prior to June, 1926. Neither does the proof show that a person having an epileptic fit must always have suffered from epilepsy. On the contrary, there is evidence from the plaintiff’s expert that it may start at thirty-five years of age. Assuming, therefore, that Mrs. Lapides had epileptic seizures in October and in April, as above related, six months and more after she was married, there is no credible evidence to show that she had any such attacks prior to marriage or knew that she had epilepsy. A Mr. Kanterman, a stranger whom the defendant had never met, testified that after the defendant was put to bed on the November occasion, he asked her how she felt and how long she had been sick “with the sickness,” and that she replied quite a time — from childhood.” Such a statement from such a source without any corroborating background was at most insufficient to justify the reversal of the Special Term. Judgment in favor of the plaintiff on the ground of the defendant’s fraudulent concealment was, therefore, without evidential support, and must be reversed.

But even if we go a step further and assume that Miss Dombroff before her marriage had epilepsy in some form, would this in and of itself justify the annulment of the -marriage? Section 7 of the Domestic Relations Law (Cons. Laws, ch. 14) provides that a marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto is incapable of entering into the marriage state from physical cause, or if either party consents to such marriage by reason of fraud. To the same effect, see section 1139 of the Civil Practice Act.

This court has held that a person, suffering from a venereal disease, is incapable of entering into the marriage state. (Svenson v. Svenson, 178 N. Y. 54.) The reason is apparent.

Epilepsy, however, is not to be classed with any such loathsome contagious disease. The record in this case is barren of any evidence as to the nature of epilepsy or its general effect upon the physical or mental capacity of the person afflicted. Medical treatises inform us that it is a term applied generally to a nervous disorder characterized by a fit of sudden loss of consciousness attended with convulsions. There may, however, exist manifestations of epilepsy much less marked than this, equally characteristic of the disease, while on the other hand, many other attacks of a convulsive nature have the term epileptic ” applied to them. In some -persons the epileptic fit may only occur once in a lifetime or once in the course of many years. (Encyclopaedia Britannica, “ Epilepsy.”) No incapacity from becoming a wife or performing the functions of the married state necessarily results from epilepsy. The general health and bodily vigor may remain unimpaired.

Epilepsy, in and of itself, is no ground for the annulment of a marriage in this State. There must be something more than a mere fit or a spell of epilepsy.” The nature of the disorder may have progressed to such a degree as to be extremely dangerous for the person to marry or to have sexual relations. Concealment of such a condition might amount to a fraud, as it is almost impossible to conceive of its success without some intentional deception or disguise.

Shall we say, however, that any person subject to epilepsy, or to fainting spells, or to bad temper, bordering on insanity, is incapable of marrying? While the law books may treat marriage as a civil contract, yet it is a contract which the public is interested in preserving. The fraud which may dissolve the marriage tie must relate to something vital. Mere non-disclosure as to birth, social position, fortune, good health and temperament cannot vitiate the marriage contract. The man and woman who marry take each other for better or worse, richer or poorer, to cherish in sickness or in health. If this be old-fashioned according to some moderns, it is still the hope and joy of the pledged loyalty. The law of this State affords no relief to subsequent disappointment. Sickness and misfortune are common to mankind and must be borne with courage and resignation. Most people have something to contend with. (See McGill v. McGill, 179 App. Div. 343.)

Even insanity existing at the time of marriage was not ground for annulment prior to 1928. (Hoadley v. Hoadley, 244 N. Y. 424; see, also, Sleicher v. Sleicher, 251 N. Y. 366.)

The inability to bear children is not such a physical incapacity as justifies an annulment. (Schroter v. Schroter, 56 Misc. Rep. 69; Wendel v. Wendel, 30 App. Div. 447; Paley’s Cases on Domestic Relations, p. 47.)

Until our Legislature extends physical incapacity to cover specific diseases, we must hold that the words of the Domestic Relations Law relate to that condition of mind or body which prevents a spouse from entering into the marriage state and performing the functions of a wife or a husband. Some States have provided by statute that no man or woman, either of whom is epileptic, imbecile or feeble-minded, shall intermarry or five together as husband and wife when the woman is under forty-five years of age. (See Gould v. Gould, 78 Conn. 242, and collected cases.) Other States have provided for sexual sterilization of inmates of institutions supported by the State, who shall be found to be afflicted with an hereditary form of insanity or imbecility. Virginia has such a law. (Buck v. Bell, 274 U. S. 200.) In the absence of some such legislation in this State, the courts are not justified in establishing a system of eugenics. We would be trespassing upon very delicate and dangerous ground indeed, should we judges, fallible like other men, undertake to say who should and should not marry. It is time enough for the courts to act when it is proved that one of the parties to a marriage was at the time incapacitated from entering into the marriage state by reason of physical deformities or diseases.

As stated before, the concealment of a disease or disorder, especially after inquiry or investigation, may be so marked as to amount to a fraud (di Lorenzo v. di Lorenzo, 174 N. Y. 467), but the evidence in this case does not justify a further consideration of the subject.

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

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

Judgment accordingly.


text:
    Ida Silverstein, Respondent, v. Metropolitan Life Insurance Company, Appellant.

      (Argued May 14, 1930;
    decided June 3, 1930.)

      Dean Potter, Charles B. LaVoe, Edward M. Grout and Paul Grout for appellant.
    Assuming that the insured did slip and that he was struck by the can there can be no recovery under the terms of the policy because his death was caused or contributed to by a disease or a bodily infirmity. (Smith v. Mass. B. & I. Co., 207 App. Div. 682; 241 N. Y. 558; Penn v. Standard L. I. Co., 160 N. C. 399.)

      B. B. Fensterstock, Bernard Gordon and Isidor Block for respondent.
    The jury’s finding that the insured’s death was not caused in whole or in part by disease or bodily infirmity, but was caused directly and independently of all other causes by violent or accidental means is amply supported by the evidence. (Lewis v. Ocean Acc. & G. Corp., 224 N. Y. 20; Mutual Acc. Assn. v. Barry, 131 U. S. 100; Schwartz v. Comm. Trav., Mut. Assn., 132 Misc. Rep. 200; 227 App. Div. 711; Paul v. T. Ins. Co., 112 N. Y. 472; N. A. L. & A. Ins. Co. v. Burroughs, 69 Penn. St. 43; A. Ins. Co. v. Crandal, 120 U. S. 527; Winspear v. A. Ins. Co., [L. R.] 6 Q. B. Div. 42; McGlinchy v. F. & C. Co., 80 Me. 251; Hiers v. Hull & Co., 178 App. Div. 350; Marchi v. Ætna L. Ins. Co., 140 App. Div. 901; 205 N. Y. 606.) Causation was submitted to the jury as a question of fact and resolved against the defendant. (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47; Van Vechten v. American Eagle Fire Ins. Co., 239 N. Y. 363; Bailey v. Interstate Cas. Co., 8 App. Div. 127; 158 N. Y. 723; Ætna L. Ins. Co. v. Brand, 265 Fed. Rep. 6; N. A. Cas. Co. v. Shields, 155 Fed. Rep. 54; Freeman v. Merc. Acc. Ins. Co., 156 Mass. 351; Lewis v. Iowa Assn., 248 Fed. Rep. 602; Interstate v. Lewis, 257 Fed. Rep. 241; Schwartz v. Comm. Trav. Mut Assn., 132 Misc. Rep. 200; 227 App. Div. 711; Townsend v. Comm. Trav., 231 N. Y. 148; Mulvihill v. Commercial Casualty Ins. Co., 221 App. Div. 494; 248 N. Y. 524.)
   Cardozo, Ch. J.

Defendant issued its policy of insurance whereby it insured plaintiff’s husband against the results of bodily injuries caused directly and independently of all other causes by accidental means,” the insurance in the event of his death to be payable to his wife. The policy was not to cover accident, injury, disability, death or other loss caused wholly or partly by disease or bodily or mental infirmity or medical or surgical treatment therefor.”

The insured, while lifting a milk can into an ice box, slipped and fell, the can striking him on the abdomen and causing such pain that he was unable to get up. A surgeon, opening the abdomen, found a perforation at the junction of the stomach and the duodenum, through which the contents of the stomach escaped into the peritoneum, causing peritonitis and, later, death. At the point of perforation there had been a duodenal ulcer, about the size of a pea. The existence of this ulcer was unknown to the insured, and were it not for the blow, would have had no effect upon his health, for it was dormant, and not progressive, or so the triers of the facts might find. Even so, there had been a weakening of the wall in some degree, with the result that the impact of the blow was followed by perforation at the point of least resistance. The question is whether death was the result of an accident to the exclusion of other causes.

We think the evidence sustains a finding that the ulcer was not a disease or an infirmity within the meaning of the policy. Left to itself, it would have been as harmless as a pimple or a tiny scratch. Only in the event that it was progressive would it become a source of pain or trouble. If dormant, as it was found to be, it was not only harmless in itself, but incapable of becoming harmful except through catastrophic causes, not commonly to be expected. In a strict or literal sense, any departure from an ideal or perfect norm of health is a disease or an infirmity. Something more, however, must be shown to exclude the effects of accident from the coverage of a policy. The disease or the infirmity must be so considerable or significant that it would be characterized as disease or infirmity in the common speech of men (Eastern Dist. Piece Dye Works v. Travelers Ins. Co., 234 N. Y. 441, 453). Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract ” (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 51; Goldstein v. Standard Acc. Ins. Co., 236 N. Y. 178, 183; Van Vechten v. American Eagle Fire Ins. Co., 239 N. Y. 303). A policy of insurance is not accepted with the thought that its coverage is to be restricted to an Apollo or a Hercules.

A distinction, then, is to be drawn between a morbid or abnormal condition of such quality or degree that in its natural and probable development it may be expected to be a source of mischief, in which event it may fairly be described as a disease or an infirmity, and a condition abnormal or unsound when tested by a standard of perfection, yet so remote in its potential mischief that common speech would call it not disease or infirmity, but at most a predisposing tendency (Leland v. Order of U. C. Travelers, 233 Mass. 558, 564; Collins v. Casualty Co., 224 Mass. 327; Mutual Life Ins. Co. v. Dodge, 11 Fed. Rep. [2d] 486; cert. denied, 271 U. S. 677; Taylor v. N. Y. Life Ins. Co., 176 Minn. 171, 174). There will be no recovery under a policy so written where an everyday act, involving ordinary exertion, brings death to an insured because he is a sufferer from heart disease (Allendorf v. Fid. & Cas. Co., 250 N. Y. 529; Leland v. Order of U. C. Travelers, supra). On the other hand, a recovery will not be denied to the sufferer from hernia who has had a predisposition to rupture because the inguinal canal was not closed as it ought to have been (Collins v. Cas. Co., supra), or to one whose hip has been fractured because his bones have become brittle with the advent of old age (cf. Taylor v. N. Y. Life Ins. Co., supra). “ If a man with an abnormally thin skull be struck a blow which would not seriously injure a normal man, but which causes' his death, it is perfectly plain that the cause of death is not the thinness of the skull, but the receipt of the blow ” (Mutual Life Ins. Co. v. Dodge, supra, p. 489). An appendix already gangrenous is one thing (Stanton v. Travelers Ins. Co., 83 Conn. 708), and quite another is an appendix, not presently malignant, though a potential source of infection in the future if left within the body. The governing principle has been stated by Rugg, C. J., with clearness and precision: If there is no active disease, but merely a frail general condition, so that powers of resistance are easily overcome, or merely a tendency to disease which is started up and made operative, whereby death results, then there may be recovery even though the accident would not have caused that effect upon a healthy person in a normal state” (Leland v. U. C. Travelers supra, at p. 564). An ulcer as trivial and benign as an uninfected pimple, is at most a tendency to an infirmity, and not an infirmity itself.

Any different construction would reduce the policy and its coverage to contradiction and absurdity. The infinite interplay of causes makes it impossible to segregate any single cause as operative at any time and place to the exclusion of all others, if cause is to be viewed as a concept of science or philosophy (Schwarz v. Commercial Travelers Mut. Acc. Assn., 254 N. Y. 523, affg. 227 App. Div. 711; 132 Misc. Rep. 200; Lewis v. Ocean Acc. & G. Corp., 224 N. Y. 18, 20). The courts have set their faces against a view so doctrinaire, an estimate of intention so headed toward futility. “ We are to follow the chain of causation so far, and so far only, as the parties meant that we should follow it. ' The causes within their contemplation are the only causes that concern us ’ ” (Goldstein v. Standard Acc. Ins. Co., supra).

The judgment should be affirmed with costs.

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

Judgment affirmed.


author: Hubbs, J.

text:
    Julius Reichel, Appellant, v. Standard Rice Company, Inc., Respondent.

      (Submitted May 15, 1930;
    decided June 3, 1930.)

      Abraham P. Wilkes and John Bogart for appellant.
    Upon delivery of the merchandise at the place of business of the defendant, title to the entire shipment passed to the defendant, subject to its right to rescind and reject if upon subsequent examination the goods were found not in accord with the sample. (Glass & Co. v. Misroch, 239 N. Y. 475; Delaware, L. & W. R. R. Co. v. U. S., 231 U. S. 363.) Defendant failed to offer the unconditional return of the goods to the plaintiffs. On the contrary, defendant retained the goods and refused to return same unless upon condition that plaintiffs first replace the goods by other merchandise satisfactory to it or pay damages claimed to have been sustained by the defendant. Defendant, therefore, must be deemed to have accepted the goods both as to title and quality, notwithstanding the attempt to reject. (Pers. Prop. Law, §§ 129, 131; Reed v. Dandall, 29 N. Y. 358; Mason v. Smith, 130 N. Y. 474; White v. Schwertzer, 221 N. Y. 461; Fillmore v. Garvan, Inc., 97 Conn. 207.) Defendant must be deemed to have accepted the goods which it sought to reject, not only because of its refusal to unconditionally return the goods, but also because of its failure to examine the goods within a reasonable time, failure to give notice to the plaintiff within a reasonable time as to the number of or which of the bags it accepts and which it rejects, and because of its entire failure to examine a large portion of the shipment, almost ten thousand bags, and because of its improper retention of the bags. (Chapman v. Ry. Co., 146 Mo. 481; Primme v. Haren, 27 Mo. 205; Carp v. Queen Ins. Co., 105 Mo. App. 502; Schoellkopf v. Coatsworth, 55 App. Div. 329; Paige v. Faure, 229 N. Y. 114; Frankfurt-Barnett Co. v. Prym Co., 237 Fed. Rep. 21; Harmony v. Bingham, 12 N. Y. 99; Kilpatrick v. Germania Life Ins. Co., 183 N. Y. 163; Neilson v. McDougal, 6 Johns. Ch. 201; Cowley v. Fabien, 204 N. Y. 566.) The Court of Appeals has jurisdiction of this appeal and the plaintiff was entitled as of right to take his appeal from the judgment entered upon the decision of the Appellate Division, and was not required to give a stipulation for judgment absolute. (Civ. Prac. Act, § 588, subds. 1, 2; Junkerman v. Tilyou Realty Co., 213 N. Y. 404; Brown v. Feek, 204 N. Y. 238; Breed v. Ruoff, 173 N. Y. 340; Moulton v. Cornish, 138 N. Y. 133.)

      Eli J. Blair for respondent.
    The judgment should be affirmed for failure of the appellant to stipulate for judgment absolute, as required by section 588, subdivision 2, of the Civil Practice Act. (Gross & Son v. State of New York, 243 N. Y. 629; Hiscock v. Harris, 80 N. Y. 402; Livingston v. City of Albany, 161 N. Y. 602; Tousey v. Hastings, 194 N. Y. 79; Van Slyck v. Woodruff, 192 N. Y. 547; Bates v. Holbrook, 171 N. Y. 688; Boyle v. N. Y., L. E. & W. R. R., 115 N. Y. 636;
      Matter of Mosher, 185 N. Y. 435.) Plaintiff failed to prove a cause of action for purchase price. The sale was by sample. The goods delivered undeniably failed to correspond to the sample and were never accepted. (Glass & Co. v. Misroch, 239 N. Y. 475; Phelps v. Willard, 16 Pick. 29; Carter, Macy Co. v. Matthews, 220 App. Div. 679; 247 N. Y. 532; Reichbart v. Smith-Eisemann Corp., 213 App. Div. 178; Eagle Mfg. Co. v. Arkell & Douglas, 197 App. Div. 788; 234 N. Y. 573; Richardson v. Levy, 69 Hun, 432; Kaienle v. Klingman, 24 Misc. Rep. 708; Strauss v. Herr Drygoods Co., 164 N. Y. Supp. 77; Central Mercantile Co. v. Graves, 74 Kan. 718; Rock Id. Plow Co. v. Meredith, 107 Iowa, 498; Perkins v. Bell, 1 Q. B. 193; Watkins v. Guthrie, 38 So. Rep. 370; Hardy v. Hillers, 129 L. T. Rep. 674.)
   Hubbs, J.

The plaintiff’s assignor, located at Newark, N. J., sold to the defendant, a corporation located at Houston, Tex., a quantity of rice bags. The sale was by sample. The order of the buyer which was accepted by the seller read as follows: Beplying accept sixty thousand twelve ounce rice pockets all to be bright clean free from holes, mends or patches at sixty seven dollars per thousand delivered Houston payment after receipt and examination.”

The bags were shipped and when they reached the buyer’s place of business it examined a part of them and then wrote the seller that they were not according to the sample, and stated “ we would much prefer not to use the bags,” and asked the seller to ship 60,000 of the quality sold. Thereafter, considerable correspondence took place, the seller insisting that the bags corresponded to the sample and the buyer insisting that they did not. Finally the seller wrote the buyer to sort the bags and to select those satisfactory to it and to pay for those selected and that shipping instructions would be given for those rejected. The buyer sorted 40,215 of the 49,600 bags shipped and selected 14,215 as satisfactory and sent its check to the seller who accepted it. The buyer never sorted the balance of 9,446 bags.

This action is under snbd"vision 1 of section 144 of the Personal Property Law (Cons. Laws, ch. 41) to recover the purchase price of all the bags shipped less the sum of $791.90 paid for the sorted bags which the buyer paid for. The plaintiff as assignee of the seder has mistaken his remedy. The original contract was one of purchase and sale subject to the right of examination by the buyer. Under that contract the title to the bags passed to the buyer subject to a condition, the right of “ receipt and examination as provided in the contract. (Glass & Co. v. Misroch, 239 N. Y. 475.)

After examining a part of the bags the buyer objected to the quality of the goods. Whether its objection constituted a vadd rescission is immaterial in the view of the case which we take. The seder acquiesced in the position taken by the buyer and the parties entered into a new agreement to the effect that the buyer should examine ad of the bags, accept and pay for such as it selected and hold the balance for the seder. Pursuant to such new agreement the buyer selected and paid for part of the goods and the seder attempted to sell the balance to third parties. The effect of the agreement and the conduct of the seder was to vest the title of the goods in the seder. The fact that the buyer faded to examine the balance of the goods and select and pay for those which it considered equal to the sample did not have the effect of transferring the title of the goods to the buyer. An action cannot, therefore, be maintained for the purchase price under subdivision 1 of section 144 of the Personal Property Law.

Appedant has appealed from the whole judgment. A stipulation for judgment absolute in the event that this court should affirm the judgment which granted a new trial of the counterclaim was not given by the appellant as required by subdivision 2 of section 588 of the Civil Practice Act. The appeal having been taken as a matter of right, such a stipulation was necessary in order to give this court jurisdiction. (Gross & Son v. State of New York, 243 N. Y. 629.)

The judgment of the Appellate Division in so far as it dismisses the complaint should be affirmed, with costs, and the appeal from the order granting a new trial of the issues arising on the counterclaim dismissed.

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

Judgment accordingly.


text:
    Agnes Ponsrok, Appellant, v. City of Yonkers, Respondent.
    (Submitted May 5, 1930;
    decided June 3, 1930.)

      Stephen R. J. Roach for appellant.
    The verification is sufficient. (Kingston v. M. S. Construction Co., 249 N. Y. 533; People ex rel. Kenyon v. Sutherland, 81 N. Y. 1; Dean v. M. E. R. Co., 119 N. Y. 540; Sheehy v. City of New York, 160 N. Y. 139.)

      Harry J. Laragh, Corporation Counsel (Vincent C. De Carlo of counsel), for respondent.
    Plaintiff’s written claim is improperly verified and a nullity. (People ex rel. Kenyon v. Sutherland, 81 N. Y. 1; Haff v. Spicer, 3 Caines, 190; Jackson v. Virgil, 3 Johns. 540; Millins v. Shafer, 3 Denio, 60; Hathaway v. Scott, 11 Paige, 173; Laimbeer v. Allen, 4 N. Y. Super. Ct. 648; Kingston v. M. S. Construction Co., 249 N. Y. 533; Sheehy v. City of New York, 160 N. Y. 139; Curry v. City of Buffalo, 135 N. Y. 366; Winter v. City of Niagara Falls, 190 N. Y. 198.)
   Pound, J.

The case comes up on a motion for judgment on the pleadings. The complaint alleges that the defendant negligently constructed a city sewer so that the same became obstructed, causing its contents to back up and flood the lower floor of plaintiff’s premises to plaintiff’s damage $2,000, and that notice of claim and notice of intention to commence an action thereon were given in accordance with the provisions of section 244 of the Second Class Cities Law (Cons. Laws, ch. 53).

It is stipulated that the notice of claim shall be considered part of the complaint. The notice is in proper form except as to its verification. It is signed by the claimant. The affidavit of verification begins: “Agnes Ponsrok, being duly sworn, deposes and says: ” Then follows the usual affidavit of verification, which is not signed by the claimant but is subscribed by William F. Fennell, who attaches alongside the jurat his seal as notary public. The question is whether the claim is properly verified.

Second Class Cities Law, section 244, provides that the. city shall not be liable in a civil action for damages to person or property unless a claim therefor in writing, verified by the oath of the claimant, shall be presented as therein indicated. Municipal liability for injuries is a matter which is within the control of the Legislature and when it declares upon what such liability shall be predicated, the statutory provisions are controlling. (Winter v. City of Niagara Falls, 190 N. Y. 198, 203; Rogers v. Village of Port Chester, 234 N. Y. 182, 185.) If the notice of claim does not comply with the statutory requirements, if it is not a verified notice of claim, the complaint was properly dismissed. No other form of notice is sufficient.

While the constitutional classification of cities into cities of the first, second and third class in accordance with their, population (Art. XII, § 2) no longer exists, under the Home Rule Amendments adopted November 6, 1923, the Second Class Cities Law is continued in force (Art. XII, § 7). The city of Yonkers comes under the act. The court must, therefore, construe the words “ verified by the oath of the claimant ” in order to determine whether the action may be maintained. If the ignorance and incompetency of the notary in failing to have the affidavit of verification subscribed by the claimant has resulted in a mere technical deviation from the classic form of an affidavit, the irregularity might be overlooked. The defect is, however, one of substance. The words verified by the oath of the claimant import the usual affidavit of verification, such as is prescribed by rules 99-100 of the Rules of Civil Practice for the verification of pleadings. Such an affidavit should be subscribed by the affiant. No statute requires it but established practice compels it. True, the great authority of Chief Justice Shaw is on the other side. In Farrer v. Parker (7 Metc. 43) it was held that as the statute does not require the oath to be subscribed, subscription is not necessary to its validity. Abundant authority may be found in other jurisdictions for this holding. (2 Corpus Juris, 357, § 90, note 33.)

In New York the rule is otherwise. It was held in the Supreme Court of this State in the early days, without giving reasons for the ruling, that the writing is an affidavit in law, though not signed by the deponent, if his name appears in the body of it and it is duly sworn to. In equity the rule was different. Chancellor Walwobth pointed out the difficulties of sustaining a prosecution for perjury on an unsigned affidavit. His reasoning has since prevailed. In People ex rel. Kenyon v. Sutherland (81 N. Y. 1) the authorities were reviewed. It was held that an affidavit which was signed by the deponent would be regarded as sufficient although his name did not appear in the body of it. Subscription gave validity to the document. The purpose of the signature is the sure identification of the person who took the oath. Since then the decisions have been exacting that the affidavit should be signed by the party deposing. In Kingston v. M. S. Construction Corp. (249 N. Y. 533) a notice of mechanics’ lien was held to be insufficiently verified under the provisions of the Lien Law, (Cons. Laws ch. 33), section 9, which requires the notice to be “ verified by the lienor.” The affidavit contained no signature nor was the lienor, although named, adequately identified in the body thereof as the person who took the oath before the notary. An unsubstantial distinction might be drawn between that case and this, but to draw such distinctions would lead to loose practice. Unsigned verifications to pleadings and notices of mechanics’ hens and other documents would be upheld. Confusion would be the result. It is better to have certainty in this respect than to indulge the carelessness or incompetency of notaries in order to uphold the rights of claimants who have, perhaps through no fault of their own, failed to comply with the statute. This ruling is no harsher than the rules which have been applied in such cases as Cotriss v. Village of Medina (139 App. Div. 872; affd., 206 N. Y. 713).

The fact that the city has not been prejudiced is immaterial. The court may not exercise a dispensing power based on the principles of abstract justice fitting the particular case. It may only see that the requirements of the law are complied with. A notice of claim is not “ verified by the oath of the claimant ” when the affidavit is subscribed not by the. claimant but by the notary and the jurat is not subscribed by the notary and is attested only by his official seal.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    Karl Hoeppner, Respondent, v. The Dunkirk Printing Company, Appellant. (Actions 1 and 2.)

      (Argued May 9, 1930;
    decided June 3, 1930.)

      Glenn W. Woodin for appellant.
    The articles are clearly not libelous per se; on the contrary, they are only fair and honest comments upon matters of public interest. (Morrison v. Smith, 177 N. Y. 366; Triggs v. Sun Assn., 179 N. Y. 144; Fleischmann v. Bennett, 87 N. Y. 231; Siegel v. Sun Assn., 130 Misc. Rep. 18; Hills v. Press Co., 122 Misc. Rep. 212; Keating v. Conviser, 127 Misc. Rep. 531; Baumann v. Baumann, 250 N. Y. 382; Atkinson v. Doherty & Co., 121 Mich. 372; Church v. Tribune Assn., 135 App. Div. 30; Tower v. Crosby, 214 App. Div. 392; Thorner v. Samuels, 122 Misc. Rep. 139; Cohen v. N. Y. Times Co., 153 App. Div. 242; Mattice v. Wilcox, 147 N. Y. 624; Krug v. Pitass, 162 N. Y. 154; Moore v. Francis, 121 N. Y. 199; Cruikshank v. Gordon, 118 N. Y.

      178.) No personal attack of any character has been made upon the plaintiff himself. (Hayes v. American Defense Society, 252 N. Y. 266; O’Connell v. Press Pub. Co., 214 N. Y. 352; Reporters Assn. v. Sun Printing & Pub. Assn., 186 N. Y. 437; Crashley v. Press Pub. Co., 179 N. Y. 27; Marlin v. Shields, 171 N. Y. 384; Hemmens v. Nelson, 138 N. Y. 517; Fleischmann v. Bennett, 87 N. Y. 231; Kloor v. N. Y. Herald Co., 200 App. Div. 90; Rossiter v. N. Y. Press Co., 141 App. Div. 339; Tower v. Crosby, 214 App. Div. 392; Twiggar v. Ossining Printing & Pub. Co., 161 App. Div. 718; Barringer v. Sun Printing & Pub. Assn., 160 App. Div. 691; Perley v. Morning Telegraph Co., 131 App. Div. 599; Outcault v. New York Herald Co., 117 App. Div. 534; Walker v. Best, 107 App. Div. 304; Ratzel v. New York News Pub. Co., 67 App. Div. 599; Battersby v. Collier, 34 App. Div. 347.) Publication of the articles
    in question is fully protected as fair comment and criticism of matters of public concern. (Beardsley v. Kilmer, 236 N. Y. 80; Marlin Fire Ins. Co. v. Shields, 171 N. Y. 384; Corrigan v. Bobbs-Merrill Co., 228 N. Y. 58; Carroll Corp. v. Greenberg, Inc., 216 App. Div. 268; Keating v. Conviser, 127 Misc. Rep. 531; Schwimmer v. Commercial Newspaper Co., 131 Misc. Rep. 552; Foley v. Press Pub. Co., 226 App. Div. 535; Cortright v. Anderson, 208 App. Div. 1; Philipp Co. v. New Yorker Staats-Zeitung, 165 App. Div. 377; Outcault v. N. Y. Herald Co., 117 App. Div. 534; Battersby v. Collier, 34 App. Div. 347.)

      Anthony Johnson for respondent.
    The defense of privilege cannot prevail. (Richardson v. Gunby, 42 L. R. A. 520; Mattice v. Wilcox, 24 N. Y. Supp. 1060; 147 N. Y. 624; Sherman v. International Publications, 212 N. Y. Supp. 484; Bingham v. Zaynor, 126 N. Y. Supp. 312; Houston Press Co. v. Smith, 3 S. W. Rep. [2d] 900; Jenkens v. Taylor, 4 S. W. Rep. [2d] 656; Eisenberg v. Reasenberg, 133 Misc. Rep. 190; Foley v. Press Pub. Co., 226 App. Div. 535; Foley v. New York Evening Journal, 226 App. Div. 550.) The articles in both actions are libelous per se. (Vial v. Larson, 109 N. W. Rep. 1007; Montgomery v. New Era Printing Co., 229 Penn. St. 165; Moore v. Francis, 121 N. Y. 199; Cruikshank v. Gordon, 118 N. Y. 178; Krug v. Pitass, 162 N. Y. 154; Triggs v. Sun Printing & Publishing Assn., 179 N. Y. 144; d’Altomonte v. New York Herald Co., 154 App. Div. 453; 208 N. Y. 596; Sanderson v. Caldwell, 45 N. Y. 398.) Criticism of a public or professional man is not privileged where actual malice is shown or charge is ground for removal. (Houston Press Co. v. Smith, 3 S. W. Rep. 900; Schlesinger v. Schultz, 96 N. Y. Supp. 30; Triggs v. Sun Printing & Publishing Assn., 179 N. Y. 144; Phelan v. Rheinstein, 133 Misc. Rep. 853; Ben-Oliel v. Press Pub. Co., 217 App. Div. 743; 251 N. Y. 250.)
   Crane, J.

The Dunkirk High School of the city of Dunkirk, county of Chautauqua, has a football team which during the football season plays in competition with the teams of other, high schools and preparatory institutions. In 1928 the team met with certain reverses which touched the pride of local admirers. The playing ■of the team was severely criticized by the Dunkirk Evening Observer, published by the defendant, a paper having considerable circulation throughout the State. Plaintiff was the teacher in physical education in the Dunkirk High School, and the head coach of the team. What the Observer said about the team was taken by the plaintiff as a reflection upon his ability as a coach, and he thereupon brought actions for libel.

The number of pages devoted to sports in the daily issues of all our newspapers gives some idea of the keen interest which the public takes in these affairs. Any one who has attended a college baseball or football game has experienced the keen enjoyment and satisfaction which the spectators take in shouting advice and criticism to the players. It is impossible to disassociate a sport contest of any magnitude from public criticism, hero worship and excuses for defeat. The chief reason why sports make an appeal to the American public is because they afford an outlet for pent-up feelings and enthusiasm. Sport is the safety valve which prevents us from blowing up through other and more dangerous forms of excitement. It does much to keep the body politic in a healthy and happy frame of mind.

When the plaintiff assumed the position of physical instructor and coach to the football team of the Dunkirk High School, he was no exception to the habits and customs which have become a part of the game. His work and the play of his team were matters of keen pul lie interest; victories would be heralded, defeats condemned. The same enthusiasm which welcomed the home-coming of the Roman conqueror now finds expression in the plaudits of the bleachers and the grandstand. The conquered now appear, not in chains, but what may be far worse, amidst ridicule and derision,-—■ the boo-hoos of the crowd.

The Dunkirk High School football team and its coach were, therefore, the subjects of fair comment and criticism in the public press and in sporting circles, and no matter how severe, caustic or ridiculous this criticism was, it afforded no occasion for an action of libel or slander. Every one has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose. Such comments or criticisms are not libelous, however severe in their terms, unless they are written maliciously. Thus, it has been held that books, prints, pictures and statuary publicly exhibited, and the architecture of public buildings, and actors and exhibitors are all the legitimate subjects of newspaper criticism, and such criticism fairly and honestly made is not libelous, however strong the terms of censure may be. (Hamilton v. Eno, 81 N. Y. 116; Triggs v. Sun Printing & Pub. Assn., 179 N. Y. 144; Bingham v. Gaynor, 203 N. Y. 27, 32; Cherry v. Des Moines Leader, 114 Iowa, 298; Gandia v. Pettingill, 222 U. S. 452; Bearce v. Bass, 88 Me. 521; Newell, Slander & Libel [4th ed.], p. 519.)

For the present it makes no difference whether we call this right of criticism, which is free for all, and not the special privilege of the press, a qualified privilege (Gott v. Pulsifer, 122 Mass. 235), or consider it as no libel (Van Lonkhuyzen v. Daily News Co., 203 Mich. 571; Schwarz Bros. Co. v. Evening News Pub. Co., 84 N. J. L. 486, 491; Burt v. Advertiser Newspaper Co., 154 Mass. 238, 242.) The difference in terminology is probably due to the form of pleading. If the public occasion, a matter of public interest, appears upon the face of the complaint, the law of fair comment applies, whereas, if the libelous words (and of course they must be libelous) are alleged in the complaint without the setting or occasion for their utterance, then the fact that they were written as criticism and comment on a matter of public interest must be set forth in the answer as a defense — in the nature of a special privilege. (Thomas v. Bradbury, Agnew & Co., Ltd., [1906] 2 K. B. [C. A.] p. 627, at p. 640.)

The articles appearing in the Dunkirk Evening Observer are set out in the complaint as follows:

(Action No. 1)

“ Coaching System Condemned

For Terrific Lacings Given

“ Dunkirk High Football Team

Squad Has Abundance of Latent Ability Which

Has Not Been Brought Out by Proper Drilling —

Lack Fundamental Knowledge of Game — Plays

“ and Formations Are Antique.

The terrific drubbing handed the Dunkirk High School football team by Warren on last Saturday afternoon, following hard on the North East setback of the previous week, has swung the vast group of local £ bleacher coaches ’ into vocal activity and innumerable remedies have been suggested as a means of eradicating or at least subjugating some of the more apparent faults displayed by the Maroon eleven.

“ Lack of knowledge of the fundamentals of the game, low morale particularly when the ‘ breaks ’ are going against them, paucity of plays furnished, antiqueness of plays and formations being used, the lack of a modern coaching system and other causes too numerous to mention have been enumerated by the dopesters in their indignant discussions following last Saturday’s slaughter.

“It is interesting to note here that no one offered ‘ lack of material ’ as the reason for Dunkirk’s dismal showings thus far this season, the concensus of opinion being that the squad this year is the best since the days of Hub Henning, ' Ollie ’ Weigle and Leo Kornprobst.

“ Squad Needs Good Drill

“ That the Hoeppner-coached squad is in dire need of a good drill in the rudiments of the game was apparent to even the casual spectator at last Saturday’s contest. The work of the local youngsters in catching punts, blocking and charging, and particularly in tackling was slip-shod and demonstrated a lack of knowledge. On an astonishing number of plays the Warren balltoter would be ' tackled ’ by three or four Dunkirk players before he was finally brought to earth after gaining 10 to 15 yards more than he should have. This dainty manner of tackling was also displayed in the North East game. Three Warren punts were fumbled about by Dunkirk receivers and other kicks were juggled and almost lost. As for the line charging and interference for the ball carrier — nothing much can be said for that.

“ No Diversity oe Plays

“ The fact that the same five or six plays are used constantly throughout the game by Dunkirk makes things much easier for the Maroon’s opponents and after the first few minutes the visitors know in exactly what direction to look for the action. On some occasions when the team has played Dunkirk several preceding years even the above mentioned few minutes are not necessary. A local quarterback of quite a few seasons back recently made the remark that he believed he could run this ye r’s team, as the plays this season looked to be the same ones bis outfit used at the high school in the dim and dusky past.

“ Perhaps some one will claim that the old plays and formations still work. They do sometimes — North East used the old Statue of Liberty play here successfully and Warren dug the shoe string play out of its grave and failed only because of a poor pass to the sleeper ’ near the sidelines. However, an alert, well-coachéd team would smother plays of this sort before they were well started.

“ Team Has Latent Ability;

“ Must Be Brought Out

“ The 1928 Dunkirk High School football team has the latent ability to play a brilliant game as they conclusively showed during the first period of the North East game. A flashy, speedy backfield behind a heavy, fast line ripped the opposition to pieces during the first few minutes. When the tide turned and North East scored, the local team’s play gradually crumpled into a mere shadow of what it had been. They just didn’t seem to know what to do next.

“Against Warren the Maroon team showed its hidden power but only for very brief spurts.

■ “ The local followers of the game — and there are many — are wondering why the wealth of material on this year’s team is not used to the greatest possible advantage; why the natural ability of many members of the Maroon squad is not polished up and improved upon through a thorough, intelligent and modern coaching system so that when out-of-town schools book the local high, they will be scheduling a game with a feared and worthy adversary rather than merely arranging a practice workout as has been the case in recent years.”

(Action No. 2.)

“ Dunkirk High Trounces

“ Falconer 37-0 In Setup

Second Weak Team to Face Maroon In Two Weeks

“ Morrissey, Milner, Domenico Feature.

“ Smashing their way through a tissue paper line which the second string penetrated with nearly as great ease as the varsity, Dunkirk High trounced Falconer on the local gridiron Saturday afternoon by a score of 37 to 0.

The game proved to be the second setup in which the Maroon has engaged for two successive Saturdays. A week ago they took on Westfield and massacred the villagers 52 to 7.

Were it not for the fact that the local grid season will come to a close Thanksgiving Day it is quite likely to assume that Laona or Arkwright would be scheduled to play the D. H. S. as setups seem to be the Maroon’s meat this year. But after the three stinging defeats Coach Hoeppner’s charges sustained in their three initial starts, it is fortunate that setups were on the schedule.

Thanksgiving Day the Maroon engages Jamestown at Jamestown and as the Red and Green has bested several worthy foes this season, one of which, Olean, took Dunkirk’s measure, the Maroon will be forced to battle its best if victory is hoped for.

Team Has Scrappy Spirit

Regardless of the outcome of the Dunkirk-Jamestown Turkey Day game the Maroon eleven will be in their fighting. In recent games they have developed a scrappy spirit and if a scrappy spirit was all that is needed to win football games Dunkirk High would come off with colors flying. There is one consolation to the bleacher fans concerning Dunkirk’s plays, however. The majority of the plays are so ancient that an up-and-coming coaching staff like Jamestown’s. may have never even heard of them and the Red and Green eleven will not be on its guard for antiques. With their scrappy spirit, which from gun to gun is fighting for the glory of the D. H. S., only the fact that Jamestown has a heavier and better drilled team keeps the Maroon from being an even choice in the betting.

The Falconer Game

Against Falconer, Morrissey, Milner and Domenico were the local satélites and their ability to go through the fine or around the ends gained considerable yardage each time they carried the ball.”

Considering first the publication set forth in action No. 2, we find nothing in it of a libelous nature. The words are not defamatory of the plaintiff and are at fnost a comment that the team badly beat its opponents because they were no match for it. In fact the team was complimented as having developed a scrappy spirit. While the majority of Dunkirk’s plays.are referred to as being ancient, this is stated as a possible advantage. There may be sarcasm, and perhaps some criticism in this article, but we can find nothing that reflects upon the plaintiff in any way or upon his ability as a coach. The plaintiff has inserted innuendoes, stating that these matters were intended to reflect upon his professional capacity, but an innuendo cannot alter or extend the meaning of the words used. (Fleischmann v. Bennett, 87 N. Y. 231; Van Heusen v. Argenteau, 194 N. Y. 309; Barringer v. Sun Printing & Publishing Assn., 160 App. Div. 691; Bearce v. Bass, 88 Me. 521.) The second cause of action should, therefore, have been dismissed, and we answer the question certified to us in the negative — the complaint does not state a cause of action.

A different conclusion has been reached regarding the publication in action No. 1. Some of us are of the opinion that the whole article is a comment upon the playing and the makeup of the football team, and in no way reflects upon the plaintiff or his ability as a coach. The newspaper was expressing a general feeling of mortification which comes with the defeat of a local football team, and giving vent to those criticisms which attempted to explain the result.

The majority of the court, however, are of the opinion that the article goes further, and may be interpreted or taken as a criticism of the plaintiff’s work as physical instructor and coach of the football team and of his professional capacity and intelligence to properly train the players. If the words are susceptible of this meaning, it then becomes a question for the jury to say whether they were used in any such sense. Here again, however, the action and conduct of the plaintiff in drilling his team and his capacity to fill his position are matters of public interest and are subject to fair comment. He is paid out of the public treasury, holds a semi-official position, and trains the boys for public exhibition and contest. Any honest comment or criticism on his ability in these particulars is not libelous. If the facts be truly stated, an opinion of his capacity drawn from these facts, if it be fair and honest, may be given by the newspaper to the public without fear of a damage suit. (Odgers, Libel & Slander [6th ed.], 159; Hunt v. Star Newspaper Co., Ltd., [1908] 2 K. B. 309, 317; Dakhyl v. Labouchere, L. R. [1908] 2 K. B. 325, 329; Foley v. Press Publishing Co., 226 App. Div. 535, at p. 546.)

The question arising out of personal attacks or criticism upon the acts and conduct of a public character has been stated by Gatley on Libel and Slander ([2d ed.], p. 387), as follows: “Is the inference the honest expression of the opinion which the defendant held upon the facts truly stated, and warranted by the facts in the sense that a fair-minded man might reasonably draw from them that inference? ” (See Walker & Son, Ltd., v. Hodgson, [1909] 1 K. B. 239, at p. 253.) If the facts stated by the Observer were correct, such, for instance, as the antiquated plays, ignorance of the game upon the part of the players, lack of discipline and the like, would it not be reasonable to draw the inference that the coach was not thorough and up to date in his work? A criticism or comment of this nature, if fairly and honestly made, even if it reflects upon the plaintiff personally, is not libel.

The complaint, however, goes one step further. We are dealing with the allegations of a complaint, and not with proof after a trial. The plaintiff alleges that this criticism of him and of his work was not fair and was not honest; it was published with actual malice, ill will and spite. If he establishes this allegation, he has made out a cause of action. No comment or criticism, otherwise libelous, is fair or just comment on a matter of public interest if it be made through actual ill will and malice. (Thomas v. Bradbury, Agnew & Co., Ltd., supra; Gatley on Libel and Slander [2d ed.], p. 370, and cases heretofore cited.) By actual malice is meant personal spite or ill will, or culpable recklessness or negligence.” (Cherry v. Des Moines Leader, 114 Iowa, 298, 300; Gott v. Pulsifer, 122 Mass. 235; Hamilton v. Eno, 81 N. Y. 116.)

Our holding, therefore, upon the publication as alleged in action No. 1 is that if it criticizes or attacks the plaintiff in his competency and capacity as a teacher, and the criticism is reasonably based upon facts truly stated, the article is not libelous unless the plaintiff proves actual malice. The burden is upon him to prove this element of the case.

The order of the Appellate Division in action No. 2 should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, and the question certified answered in the negative. The order in action No. 1 should be affirmed, with costs, and the question certified answered in the affirmative.

Cardozo, Ch. J., Pound, . Kellogg and O’Brien, JJ., concur; Hubbs, J., dissents in action No. 1; Lehman, J., not sitting.

Ordered accordingly.


text:
    Lydia A. McCann, Appellant and Respondent, v. Paul C. Schnitzler et al., as Administrators of the Estate of Emma C. Leopold, Deceased, Respondents and Appellants.
    (Argued May 5, 1930;
    decided June 3, 1930.)

      Sydney A. Syme for plaintiff, appellant and respondent.
    The motion to be permitted to voluntarily vacate the warrant of attachment, so as to be relieved from the necessity of furnishing additional security to retain the benefit of the warrant, was properly granted by the Special Term and was within its power. (Civ. Prac. Act, § 907; Straus v. Guilhon, 80 App. Div. 50; Olsen v. U. S. Fidelity & Guaranty Co., 230 N. Y. 31; Newton v. Russell, 87 N. Y. 527; Tyng v. American Surety Co., 69 App. Div. 137; 174 N. Y. 166; North Hampton Nat. Bank v. Wylie, 52 Hun, 146; 123 N. Y. 663.)

      Thomas G. Prioleau and Charles E. Thorn for defendants, respondents and appellants.
    There is no authority for permitting plaintiff to withdraw her attachment against the objection of defendants. (Penoyar v. Kelsey, 150 N. Y. 77; Prentiss v. Greene, 193 App. Div. 672; Wait’s Pr. [8th ed.] 2398; Bradner on Attachments, 191; Majarrietta v. Saenz, 80 N. Y. 547; Gentilala v. Fay Taxicabs, 243 N. Y. 397; Matter of Butler, 101 N. Y. 307.) The failure of the plaintiff to give the additional security ordered by the Appellate Division entitled the defendants to a dismissal of the complaint. (Fuerstenberg v. American Soda Fountain Co., 21 App. Div. 501; Civ. Prac. Act, § 1529; Jones v. Sabin, 122 App. Div. 666; Schroeder v. Page, 124 App. Div. 253; Hinman v. Pierce, 50 Hun, 209;
      Penoyar v. Kelsey, 150 N. Y. 77; Courtney v. Eighth Ward Bank, 154 N. Y. 688.)
   Per Curiam.

In an action begun in 1926, plaintiff procured a warrant of attachment, giving an undertaking for $250, a sum accepted as sufficient by the judge issuing the warrant (Civ. Prac. Act, §§ 819, 907). Upon the death of the defendant named in the summons, her administrators, the present defendants, became parties in her place. They moved in 1928 that the plaintiff be required to give additional security (Civ. Prac. Act, § 948). Their motion, denied by the Supreme Court at Special Term, was granted at the Appellate Division, and a new undertaking in the sum of $3,750 was ordered to be given.

The plaintiff was unable to comply with that direction. She moved accordingly at Special Term that she be permitted to withdraw the attachment and that it be vacated with the same effect as if set aside at the defendants’ instance. The defendants made a counter-motion for the dismissal of the complaint. The Special Term granted the plaintiff’s motion to vacate, and denied the defendants’ motion to dismiss. There were cross-appeals to the Appellate Division where the one order was reversed, and the other modified by perpetually staying the prosecution of the action unless within five days additional security was filed as previously directed.

We think the only penalty adhering to the failure to give security is the loss of the attachment. We find no basis in the statute for the imposition of an additional penalty in the form of a perpetual stay of the prosecution of the action. An undertaking on attachment under article 54, section 907, of the Civil Practice Act is not an undertaking for costs within the meaning of article 87, section 1529. If the plaintiff persists in her failure to give the additional security, the defendants’ only remedy will be a motion to vacate the warrant. This being so, they have not suffered any prejudice by reason of the plaintiff’s readiness to anticipate then action, and make the motion for herself.

The orders of the Appellate Division should be reversed and those of the Special Term affirmed, with costs to the plaintiff in the Appellate Division and in this court. The questions certified should be answered as follows: On the plaintiff’s appeal, the first and third in the affirmative and the second in the negative; on the defendant’s appeal, the first, second, third and fifth in the negative and the fourth in the affirmative.

Caedozo, Ch. J., Pound, Cbane, Kellogg, O’Bkien and Hubbs, JJ., concur; Lehman, J., not sitting.

Ordered accordingly.