author: Finch, J. Crane, Ch. J.

text:
    In the Matter of Sara G. Kearns et al., Appellants, against Board of Education of the City of New York, Respondent.
    Argued October 7, 1938;
    decided November 29, 1938.

      I. Maurice Wormser and Jules Jacobs for appellants.
    Petitioners are entitled to designation as clerical assistants in continuation schools by virtue of their appointment to that position. (Matter of Meagher, 41 St. Dept. Rep. 542; Matter of King, 49 St. Dept. Rep. 388.) Petitioners are not guilty of loches. (Neil v. Hodges, 13 Fed. Supp. 916; Callahan Estate v. I. R. T. Co., 90 Misc. Rep. 79; Lonsdale v. Woonsocket, 21 R. I. 498; Matter of Lord, 78 N. Y. 109; Matter of Casey, 195 Fed. Rep. 322; Matter of Williams v. Pyrke, 233 App. Div. 345.) Petitioners are entitled to the difference in salaries paid to them as teacher clerks and the sum they should have received as clerical assistants in continuation schools. (Matter of Barmonde v. Kaplan, 266 N. Y. 214; Williams v. Pyrke, 233 App. Div. 345.)

      William C. Chanler, Corporation Counsel (Arthur Bainbridge Hoff, Jr., and Paxton Blair of counsel), for respondent.
    Since the petitioners had never been appointed to the position of clerical assistant they had no right to the title and salary of that position. An employee has no right to be “ designated ” as the holder of a position to which he has no right to be appointed. (Hurley v. Board of Education, 270 N. Y. 275; Ciaccia v. Board of Education, 271 N. Y. 336; Wood v. City of New York,
      274 N. Y. 155; Matter of Becker v. Eisner, 277 N. Y. 143; Matter of Aronson v. Finegan, 253 App. Div. 713; People ex rel. Barry v. Keller, 30 Misc. Rep. 52; McCunney v. City of New York, 40 App. Div. 482; Stenson v. City of New York, 40 Misc. Rep. 533; Manning v. City of New York, 150 Misc. Rep. 292; Matter of Jaffe v. Board of Education, 265 N. Y. 160; Matter of Vandewoude, 50 St. Dept. Rep. 199.) Because of their loches and because they are in the unclassified civil service the petitioners were rightly denied back salary. (Matter of Phillips v. Kaplan, 266 N. Y. 514; Matter of Williams v. Pyrke, 233 App. Div. 345; People ex rel. Collins v. Ahearn, 120 App. Div. 95; People ex rel. City of Tonawanda v. Fitzhenry, 170 App. Div. 227; Matter of Pickett v. Board of Education, 251 App. Div. 798; Matter of Barmonde v. Kaplan, 266 N. Y. 214.)
   Finch, J.

The petitioners were licensed for the position of teacher clerk ” in New York city elementary schools. In or about 1921 they were appointed as teacher clerks and assigned to continuation schools. One of them, who was serving in the public schools, was transferred to a continuation school. In 1927, the Commissioner of Education issued a ruling that continuation schools were to be deemed secondary schools and of the same grade as high schools. Thereupon, a regular continuation school organization was set up by the Board of Education in its by-laws. These by-laws specifically provided for the position of “ clerical assistant ” in continuation schools, but omitted the position of “ teacher clerk.” The petitioners were then informed that in order to qualify for the position of clerical assistant in continuation schools, they would have to comply with the requirements set up and take an examination. By reason of their past service in the continuation schools, the written examination was waived as.to them, and they took an interview examination and a performance test. They were informed that this would entitle them to have their names placed on the eligible list with the names of those derived from the open competitive examination, but that it would not entitle them to an appointment as clerical assistant in any but a continuation school. “ Therefore, persons entitled to exemption from the written examination for license as clerical assistant in continuation schools by virtue of continuation school service, should take the written examination if they desire to obtain a license as clerical assistant in day high schools, or in evening high, trade or industrial art schools, or if they believe that they can improve their prospective eligible list standing by taking the written examination.”

After they had taken the interview examination and the performance test, the names of the petitioners were placed upon an eligible list for the position of clerical assistant along with the names of those who had taken the open competitive examination. Thereafter, the petitioners continued to perform the clerical work in the continuation schools where they had been prior to the examination. They were not, however, designated as clerical assistants on the payroll of the Board of Education, and did not receive the salary provided for clerical assistants.

The eligible list for clerical assistants upon which their names appeared expired on January 30,1933, and the statute (L. 1933, ch. 146) purporting to revive this list was enacted in April, 1933. On April 5, 1935, the petitioners began a proceeding before the Commissioner of Education to require the Board of Education to make appointments from the eligible list of clerical assistants to the positions occupied by the petitioners. The Commissioner held that since continuation schools were to be considered as of high school grade, the positions should be filled by clerical assistants, and he directed that appointments be made from the eligible list. Shortly thereafter this Court held that the attempted revival of an expired eligible fist was unconstitutional. (Hurley v. Board of Education, 270 N. Y. 275.) Because of this decision the Board of Education made no appointments from the expired eligible list upon which the petitioners’ names appeared. The petitioners then amended their petition and substituted a prayer for an order commanding the Board of Education to designate them as clerical assistants in continuation schools as of September 9, 1929, with all the emoluments and benefits thereof. The Special Term, by its resettled order, directed the Board of Education to designate the petitioners on all licenses, records and payrolls of the Board as clerical assistants in continuation schools as of April 5, 1935, with all the emoluments and benefits thereof, and to pay each of them a sum equivalent to the difference between the salary each should have received for the period commencing April 5, 1935, based upon the appointment of each of them as clerical assistants in continuation schools as of April 5, 1935, and the salary received by each of them in such employment since April 5,1935, with appropriate interest. ■ The Appellate Division reversed, holding that the petitioners were never appointed to the position of clerical assistant, and that, in the absence of a valid appointment, they could not be designated as incumbents even.though they performed the duties of the position.

There can be no doubt that the petitioners were never appointed formally or otherwise to the position of clerical assistant. Nor can it be said that this was a mere technical omission which can be overlooked. That there was no intention to appoint them as clerical assistants is shown by the fact that they were never paid the salary provided for that position, and there was no provision for them as clerical assistants on the payroll of the Board of Education. To hold, despite this, that they should be deemed to have been appointed since they continued in the position and did the clerical work in the continuation schools, would amount to an evasion of the civil service laws. These statutes provided that appointments in the competitive class are to be made from among those graded highest in- open competitive examinations, and that the appointment shall be from the first three persons on the appropriate eligible list. (Education Law, § 872 (5) [Cons. Laws, ch. 16]; see Civil Service Law, § 14 [Cons. Laws, ch. 7].) The petitioners’ delay in acting has created this situation and there is no escape from the statutory requirements. The petitioners were not the only ones on the eligible list. Among the seventeen at the head of the list there were eight names besides those of the petitioners. One of the petitioners headed the fist. But there are three other names before we come to the name of another petitioner.

The petitioners now ask the court to designate them nunc pro tune to the title and salary to which they have never been appointed. Under these circumstances, to hold that the petitioners are deemed to have been appointed when they were in fact not so appointed, merely because they continued to do the work, would constitute a direct violation of the law.

The order appealed from should be affirmed, with costs.

Crane, Ch. J.

(dissenting). In 1921 the petitioners were teacher clerks in elementary schools, duly licensed and appointed. That year they were transferred to continuation schools. They had been serving in the public schools, and, upon the establishment of the continuation school, they were shifted. The continuation schools were not classified either as primary or secondary schools. The petitioners thus assigned and transferred as teacher clerks to the continuation schools, continued until the present day, doing the same work in the same occupation and in the same position, and when thereafter and in October 21, 1927, the Commissioner of Education issued a ruling to the effect that continuation schools were to be deemed secondary schools and as of the same grade as high schools, there was no change whatever made in the work or the position of these petitioners.

The reality which faces us in this case is this fact — the petitioners have never ceased to do the same work as they did when they were transferred to continuation schools in 1921. Whatever change has come about has merely been on paper and in titles, and not in the positions or the nature of the work. With the change made in 1927, by classifying the continuation schools as secondary schools, a change was made in the name of the position held by these petitioners, and they were thereafter called clerical assistant.” Thereafter these petitioners were addressed as “ clerical assistant.” They made out their reports on blanks furnished by the Board of Education, naming them “ clerical assistant,” and from 1927 to the present day — eleven years — the Board of Education has kept them in their positions doing the same work, and paid them with public moneys.

It is now claimed in behalf of the Board of Education, if not by that body, that since 1927 there have been no teacher clerks ” in the continuation schools and that these petitioners have therefore been serving illegally. We cannot escape the conclusion that if clerical assistants ” only were provided for continuation schools, and their appointment could only be taken from civil service lists for “ clerical assistant,” then these petitioners have been illegally continued and illegally paid, all in violation of the Civil Service Law, for it is axiomatic that one cannot be employed in a position which must be filled from a civil service list; and a certification monthly to get the salary of the place is contrary to law if such person has not been taken from the list. We and the Board of Education cannot escape this situation.

The fact is, the Board did just what it should have done, in all fairness and justice. It re-graded the continuation schools, making them high schools, but it in no way changed the positions of these petitioners. Why should the Board make any change? They were competent; they had been doing the work for over six years, and the Board continued them in the same place, doing the same work, and merely changed the name of the position from teacher clerk ” to clerical assistant.” In fact thereafter, as I have already stated, in all official reports, they were designated “ clerical assistants.” While the Board for the future appointments created a list by examinations for appointments thereafter to be made to clerical assistant positions, it did not require these petitioners to take any written examination for such a place, but held a qualifying examination, which has been recognized in the law both by us and by the Legislature as required in all fairness when changes have been made in the civil service alignments. This we said could be done regarding clerks in courts (Matter of Sandford v. Finegan, 276 N. Y. 70), also regarding the State troopers (Matter of Andresen v. Rice, 277 N. Y. 271). When we decided that the civil service applied to State troopers, we said regarding the old and tried employees: This decision does not affect or disturb the officers in the positions they are now holding, as time must be given to the Superintendent to carry out the purposes of the Civil Service Law, as we have expressed it, without disrupting and disorganizing his staff. At such time and under such rules and regulations as he may adopt pursuant to this Executive Law, he can and will provide for examinations, giving due regard to experience and service in his ratings. (See Matter of Kraus v. Singstad, 275 N. Y. 302, 310.) ” (p. 282.)

The Board of Education apparently complied with this law, giving to these petitioners a qualified examination and continuing them in their positions. We have recognized this as the only fair and reasonable thing to do and, to have turned these teacher clerks out and appointed others to do exactly the same work simply because the name of the position was changed, would not only have shocked our sense of fair play but would be contrary to the very spirit and purpose of the Civil Service Law. Employees in the civil service of the State are to be protected by the Civil Service Law, and not trapped or tricked into removals through mere readjustment in names and grade. The record in this case shows that application has been made to the Commissioner of Education to declare these petitioners interlopers and to have them removed from the positions and work they are doing; in other words, to have it determined that for the past eleven years the Board of Education has proceeded illegally. Neither sense nor law leads to such a conclusion.

The application of these petitioners should be granted in so far as to require the Board of Education to designate them clerical assistant,” and to pay them accordingly from the date of this application. The back pay they are not entitled to, as they have waived their right to it.

Lehman, O’Brien, Hubbs, Loughran and Rippey, JJ., concur with Finch, J.; Crane, Ch. J., dissents in opinion.

Order affirmed. (See 279 N. Y. 794.)


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Fanny S. Sweeney, Appellant, against William G. Rice et al., as Commissioners of the Department of Civil Service of the State of New York, Respondents.
    Argued October 5, 1938;
    decided November 29, 1938.

      John McKim Minton, Jr., John W. Jordan and Robert M. Davis for appellant.
    In the light of the prima facie showing of unreasonableness and prejudice- to petitioner in the establishment of two lists for the position of court stenographer, and in the total absence from the record of any reason or basis for the Commissioners’ action in so doing, the Appellate Division was not warranted in making the order appealed from. (Matter of Barthelmess v. Cukor, 231 N. Y. 435; People ex rel. Moriarty v. Creelman, 206 N. Y. 570.)

      H. Eliot Kaplan and Samuel D. Smoleff for H. Eliot Kaplan, amicus curios.

    The distinction made by the Commission between stenographers and stenotypists is wholly arbitrary, capricious and unreasonable. (People ex rel. E. C. T. Club v. State R. Comm., 190 N. Y. 31; Ryan v. Finegan, 166 Misc. Rep. 548; 253 App. Div. 713; Barlow v. Berry, 245 N. Y. 500; Matter of Sloat v. Board of Examiners, 274 N. Y. 367.)

      John J. Bennett, Jr., Attorney-General (Patrick H. Clune and Henry Epstein of counsel), for respondents.
    The action of the Civil Service Commission in determining that two eligible lists should be established, one for stenographers and one for stenotypists, was proper and legal. (People ex rel. Moriarty v. Creelman, 209 N. Y. 570; People ex rel. Schau v. McWilliams, 185 N. Y. 92;
      Matter of Simmons v. McGuire, 204 N. Y. 233; People ex rel. New York & Queens Gas Co., v. McCall, 219 N. Y. 84; 245 U. S. 345; People ex rel. Apfel v. Casey, 66 App. Div. 211; People ex rel. Braisted v. McCooey, 100 App. Div. 240; People ex rel. Caridi v. Creelman, 150 App. Div. 746; Matter of Allaire v. Knox, 62 App. Div. 29; 168 N. Y. 642; Matter of Friedman v. Finegan, 268 N. Y. 93; Matter of Volgenau v. Finegan, 163 Misc. Rep. 554; 250 App. Div. 757; Matter of Woods v. Finegan, 246 App. Div. 271; Bridgman v. Cosse, 157 Misc. Rep. 8; 246 App. Div. 632; 271 N. Y. 535; People ex rel. Merritt v. Kraft, 145 App. Div. 662; 204 N. Y. 626; People ex rel. Bartholomew v. Municipal Civil Service Comm., 171 App. Div. 916.)
   Finch, J.

An examination for the position of court stenographer in the Supreme and County Courts of the first and second judicial departments was announced by the State Department of Civil Service in July, 1935. The announcement stated that separate eligible lists would be established for shorthand reporters and for stenotypists, and requested candidates to indicate for which list they were applying. The petitioner attached to her application a statement informing the Commission that she intended to take the examination on a stenotype machine but that she protested against more than one list and was applying with the understanding that this would not prejudice her position if it were determined finally that it was proper to have a single list rather than two lists for the position.

As a result of the examination petitioner obtained the highest grade for either list. The Commission, in accordance with its announcement, established two lists, and the petitioner’s name, although it heads the stenotype list, is not included in the shorthand eligible list, which is headed by a candidate with a lower grade than hers. Petitioner instituted this proceeding for a peremptory order of mandamus or an alternative order of mandamus directing the Civil Service Commission to establish a single eligible list for the position. Special Term granted an alternative order of mandamus but denied the peremptory order. On cross appeals, the Appellate Division affirmed the denial of the peremptory order and reversed the alternative order. This appeal is taken from the reversal of the order granting the alternative order of mandamus.

Ordinarily one list and only one list should be established from which appointments to the same position are to be made. This relator, although she obtained the highest rating, may be deprived of an opportunity of being appointed to the position. She and the other stenotypists have been placed on a list separate from the regular shorthand reporters, although the former use a system which apparently lends itself more readily to transcription and may be better in other ways.

The question of the reasonableness of establishing separate eligible lists of those who took notes in shorthand with a pen or pencil and those who employed a stenotype machine, is, under all the circumstances, one of fact. No valid reason has been advanced for holding such action reasonable as a matter of law. The Civil Service Commission has broad discretionary powers, but it cannot act arbitrarily.

The orders should be reversed, and the motion for a peremptory order of mandamus granted, with costs.

Crane, Ch. J., O’Brien, Htjbbs, Loughran and Rippey, JJ., concur; Lehman, J., taking no part.

Ordered accordingly.


author: Rippey, J.

text:
    In the Matter of the Claim of Harry Miller, Respondent, against State of New York, Respondent, and State Insurance Fund, Appellant. State Industrial Board, Respondent.
    Submitted October 6, 1938;
    decided November 29, 1938.

      George J. Hayes and Patrick S. Mason for appellant.
    The record and the law clearly establish that claimant was an employee of the Register of New York county and as such was a county employee. (Cons. Laws, ch. 11, §§ 256, 256-b, 257-c, 257-d.)

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin and Roy Wiedersum, of counsel), for State Industrial Board, respondent.
    The claimant was an employee of the State and was not employed by the city of New York. (Matter of McKinney v. McGoldrick, 243 App. Div. 210; Muller. v. City of New York, 189 App. Div. 363; Archer v. State, 32 St. Dept. Rep. 231; Gubner v. McClennan, 130 App. Div. 716; Matter of Goss v. Rice, 160 Misc. Rep. 698; Matter of Bryant, 152 N. Y. 412; Matter of McCaffrey v. Howland, 241 App. Div. 624; Matter of Stoerzer v. City of New York, 267 N. Y. 339.)

      William, C. Chanter, Corporation Counsel (Paxton Blair and Samuel A. Bloom of counsel), for City of New York, amicus curice.

    Section 256 of the County Law expressly declares that claimant is a State employee. (Hughes v. County of Monroe, 147 N. Y. 49.) Payment of salary by the city is in the nature of a tax imposed upon the city by the Legislature and does not create a status of master and servant between the city and the, claimant. (Muller v. City of New York, 189 App. Div. 363; Matter of Bryant, 152 N. Y. 412.)
   Rippey, J.

The claimant, at the time of his injury on November 7, 1934, was employed as recording clerk in the office of the Register of the county of New York. He received accidental injuries resulting in total temporary disability while lifting and cleaning a typewriter. It was correctly found by the Industrial Board that his injuries arose out of and in the course of his employment. Solely a question of law is presented upon this appeal as to whether claimant was, at the time of the injuries, a State or a county employee.

The Industrial Board held that claimant was a State employee so as to be entitled to workmen’s compensation under group 16 of section 3 of the Workmen’s Compensation Law (Cons. Laws. ch. 67). That conclusion was based upon the assertion that the county register was a State agency and that subdivision 4 of section 2 of the Civil Service Law (Cons. Laws, ch. 7) provided, before the amendment to that section by chapter 603 of the Laws of 1938, that when used in that chapter, “ the ‘ state service ’ shall include all such offices and positions in the service of the state or of any of its civil divisions except a city.” The Appellate Division, in sustaining the conclusion of the Industrial Board, not only relied upon those grounds but leaned upon the fact that the county register was a constitutional officer and upon section 256 of the County Law (Cons. Laws, ch. 11) which provides that the employees in the office of the Register of the county of New York “ shall be and remain in the competitive classified civil service of the state. ” and upon section 10 of the Civil Service Law, which makes provision for the inclusion in the classified State service of those working in the service of the state, and * * * [the] civil divisions thereof, except cities.” We think that neither the facts nor the applicable law sustains the conclusion reached below.

The office of Register of the county of New York, a political subdivision of the State, is created and the duties and functions of the Register are defined and limited by article XV-A of the County Law (Laws of 1921, ch. 227, as amd.). Although the occupant of the office is a constitutional officer within - the provisions of article X, section 1, of the State Constitution and his salary cannot be reduced during his term of office under article X, section 9, of the Constitution (Cf. Albert v. City of New York, 275 N. Y. 484), he is, nevertheless, a “ local officer ” and not a “ state officer ” and his office is a “ local office ” and not a state office ” (Public Officers Law, § 2 [Cons. Laws, eh. 47]). The Register must be a resident of the county of New York (County Law, § 251-a). He must be chosen solely by the electors of that county (§ 251-b) and not by the electors of the State at large. The exercise of his official functions is limited to the territorial limits of the county of New York (§ 251). The fees of the office and all other perquisites and emoluments to which the Register may be entitled by virtue of his office or which he may receive for official services rendered by him or by any of his employees belong to and are for the benefit of the county of New York and the expense of conducting his office is a charge upon that county (§ 251-f). The duties which he is assigned to perform are a part of the duties which County Clerks in counties outside of counties embraced within the limits of the city of New York are required to perform. They are entirely local in character and the Register, in the performance of those duties, is a county officer (Olmsted v. Meahl, 219 N. Y. 270, 275).

Claimant was not an officer but a mere county employee in the office of the Register (Sullivan v. Mayor, 48 How. Pr. 238). The statute creates a distinction between the deputies and assistant deputies in the office, who, under certain conditions, are authorized to perform the duties of the Register’s office (§§ 251-h, 257), and the other employees of the office (§ 256). Miller’s duties did not involve any exercise of any portion of the sovereign power in the performance of which the public was concerned. He discharged no independent duties, but acted under the direction of others, his immediate superior being the chief recording clerk in the office. The power of appointment of employees and of removal according to law, and the fixing of their salaries, subject only to regulation and approval of the makers of the budget for the city and county of New York, rested exclusively with the Register (§ 256). The number of recording clerks, of whom Miller was one, was in the discretion of the Register (§ 256). The Register has exclusive power of designation and assignments of duties within the office (§ 257). By section 256 many employees in subordinate positions of the Register’s office were designated and classified by titles and their salaries fixed. The salaries or number of recording clerks were not fixed by statute. It was provided that there should also be employed in the Register’s office such recording clerks as might be required by the Register to be paid within the budget allowance. Miller’s salary was not paid by the State. He was not in any respect in any aspect of the case within the service of the State.

The foregoing conclusion is not affected by the fact that he was selected from a list provided by the State Civil Service Commission. Article V, section 6, of the State Constitution extends civil service to all the civil divisions of the State. Counties are civil divisions of the State and their employees are included within the constitutional provisions (Chittenden v. Wurster, 152 N. Y. 345, 356) and also within the civil service statutes (Civil Service Law, § 2, subds. 3, 6). Section 256 of the County Law provides that all the employees of the Register of the county of New York referred to in that section shall be and remain in the competitive classified civil service of the State. The classified civil service of the State now embraces all officers and employees of the State and of each of its civil subdivisions, except cities, not specifically placed in the unclassified service, and the competitive class comprises all positions not in the exempt or noncompetitive classes (Rules III, Y and XVIII for the Classified Civil Service promulgated under the authority of section 6 of the Civil Service Law). In the matter of counties the State Civil Service Commission generally handles classified civil service, holds examinations and makes classifications of employees thereof; lists for appointments are made by the State Civil Service Commission and qualified persons are certified by the State Commission as occasion requires. The mere fact that the State Commission so acts does not make the person so examined, classified and certified, where employed in a civil division of the State, a State employee. The requirement of section 19 of the Civil Service Law that the appointing officer of the civil division of the State shall report to the State Civil Service Commission upon any appointment or employment the name of the employee, the title and character of his employment, the date of the commencement of his service, and the compensation thereof, or that the Commission shall keep a roster in its office of the classified civil service of the civil division, or the requirement of section 20 of the Civil Service Law that no such employee of the civil division shall be paid for his services until the account for his compensation shall be certified by the Civil Service Commission, does not constitute the employee an employee of the State. Those provisions are regulatory and are designed to make effective the general purpose of the Constitution and of the Civil Service Law to bring, so far as practicable, all employees of the State and of each of its civil subdivisions within the civil service so that appointments may be made according to merit and fitness and the best interests of the public service may be promoted. The term state service as variously used in the State Civil Service Law covers all employees rendering public service, whether they are in the employ of the State or whether they are in the employ of some one of the civil divisions of the State, other than cities. It was not intended to cover and does not embrace within its meaning the employees of the State alone. It was not intended to make employees of civil divisions of the State State employees or render the State or the State Insurance Fund responsible for compensation for injuries sustained arising out of or in the course of their employment.

The order of the Appellate Division should be reversed and the determination of the State Industrial Board annulled, with costs in all courts to the State Insurance Fund against the State Industrial Board.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Ordered accordingly.


text:
    In the Matter of the Claim of John M. Bednar, Appellant, against Ingersoll Rand Company, Respondent. State Industrial Board, Respondent.
    Submitted October 6, 1938;
    decided November 29, 1938.

      Edwin J. Carpenter for appellant.
    The Industrial Board properly made an award for twenty-five per cent loss of hearing of the left ear. (Cons. Laws, ch. 67, § 15, subd. 3, ¶¶ m, s, u.)

      Thomas A. Clarke for Ingersoll Band Company, respondent.
    The statute does not provide for a schedule award for partial loss of hearing. (Matter of Rowe v. McGovern, 236 App. Div. 866.)
   Finch, J.

Claimant appeals from an order of the Appellate Division which reversed an order of the State Industrial Board whereby the latter made an award to the claimant for partial loss of hearing and directed the proportionate payment of fifteen weeks’ compensation.

The claimant sustained accidental injuries while in the course of his employment, consisting of a rupture of the left eardrum, through the bursting of a compressed air hose. The Industrial Board found that the accident had impaired the hearing of claimant to the extent of twenty-five per cent in the left ear. The employer took an appeal from the award to the Appellate Division, where the order and award were reversed upon the authority of Matter of Rowe v. McGovern, Inc. (236 App. Div. 866), with one justice dissenting and another concurring on the sole ground of stare decisis in Matter of Rowe v. McGovern (supra), likewise decided by a court divided three to two.

The only question here involved is whether the Industrial Board may make an award for partial loss of hearing under the Workmen’s Compensation Law (Cons. Laws, ch. 67), where there is no loss of earning capacity in the claimant.

The employer maintains that the Workmen’s Compensation Law under such circumstances allows no redress, unless there is established a loss or diminution in earning capacity. Subdivision 3 of section 15, in paragraphs A-L, provides certain scheduled awards for permanent partial disability of certain members of the body, but does not mention an ear. Then in paragraph V of subdivision 3 of section 15 of the Workmen’s Compensation Law it is provided that in all other cases the compensation shall be sixty-six and two-thirds per cent of the difference between the average weekly wage of the claimant before his disability and his wage earning capacity thereafter. In the case at bar there was no loss of earning capacity, so that unless partial loss of hearing in an ear may be treated as permanent partial disability of a member of the body for which a scheduled award is specified, irrespective of earning capacity, the claimant is without remedy for this accidental injury arising out of and in the course of his employment and which occasioned a permanent twenty-five per cent loss of hearing in his left ear.

We come then to an analysis of the statute (Workmen’s Compensation Law, § 15, subd. 3, if*|j A-U). Subdivision 3 of said section 15, in paragraphs A-L, provides the compensation payable for loss of arms, legá, hands, feet, eyes, thumbs, fingers and toes. In the next paragraph, M, there is provided compensation for complete loss of hearing in one and in both ears. Paragraph S, then following in the same section, provides that for partial loss of a member a proportionate compensation shall be allowed. If, therefore, an ear is a member of the body, partial compensation may be granted by the terms of the statute. An ear is surely as much a member of the body as an arm or a finger. Moreover, this same section of the statute, in paragraph U, denominates an ear as a member of the body. In this paragraph U it is provided that in any case in which there shall be a loss of more than one member, as set forth in paragraphs A-T, both inclusive, but not amounting to permanent total disability, the Board shall award compensation for the loss. Paragraphs A-T include paragraph M which, as already noted, provides a compensation for loss of hearing in one or both ears. It, therefore, follows that the statute has included an ear as a member. Since complete loss of hearing in one ear is given a compensation of sixty-six and two-thirds per centum of the average weekly wages for sixty weeks under the statute, a twenty-five per cent loss of hearing entitles the claimant to an award of the said percentage of the average weekly wages for fifteen weeks.

The order of the Appellate Division should be reversed and the award of the State Industrial Board reinstated, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, Obrien, Hubbs, Loughran and Rippey, JJ., concur.

Ordered accordingly.


text:
    In the Matter of the Claim of Ida S. Renzo against Reid Ice Cream Corporation et al., Respondents. State Industrial Board, Appellant.

      Argued October 6, 1938;
    decided November 29, 1938.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for appellant.
    The decision and award of the Industrial Board were proper and valid. (Matter of Cooley v. American La France Fire Engine Co., 185 App. Div. 918; Post v. Wood Coal Co., 192 App. Div. 937; Crockett v. International Ry. Co., 176 App. Div. 45; Mutimer v. General Electric Co., 207 App. Div. 1.)

      George J. Stacy, James J. Mahoney and William S. Sinclair for respondents.
    There is no presumption of statutory error. The statute (Workmen’s Compensation Law [Cons. Laws, ch. 67], § 16, subd. 2) is clear and does not require interpretation. (Ashbrook v. Bailey, 116 Va. 10; State v. Morgan, 131 Wash. 143; Johnson v. Hudson River R. R. Co., 49 N. Y. 455; Terminello v. Bleecker, 155 Misc. Rep. 702; Coster v. Mayor, 43 N. Y. 399; Schoonmaker v. Hoyt, 148 N. Y. 425; Matter of Foster v. American Radiator Co., 249 App. Div. 460.)
   Finch, J.

The husband of the claimant died July 21, 1927, as a result of accidental injuries arising out of and in the course of his employment. The Industrial Board made proper awards to his widow and dependent children pursuant to the provisions of the Workmen’s Compensation Law (Cons. Laws, ch. 67). In July, 1931, the widow innocently went through the formalities of a ceremonial marriage with a man whose wife was living. Thereupon the payment of the award to the widow was commuted by a lump sum equal to the total of the benefit payments for two years, pursuant to the provisions of the Workmen’s Compensation Law (§ 16, subd. 2) in the event of remarriage. The widow lived and cohabited with the purported second “ husband ” until his death December 1, 1934. At that time she learned that he had a wife living and was undivorced. The widow then sought reinstatement of the award from the time of the cessation of payments, on the ground that the marriage was void ab initia. The Industrial Board reinstated these payments as if there had been no attempted second marriage, allowing, however, due credit for the lump sum payment already received. Upon appeal, the Appellate Division reversed and modified to the extent of reinstating the payments only from the time of the death of the second “ husband,” allowing also credit from that time for the lump sum remarriage award.

We have, therefore, the question presented as to the date when payments should be reinstated after a claimant has innocently gone through a marriage ceremony and received the lump sum remarriage award pursuant to the statute, it appearing that the purported marriage was wholly void.

The language of the statute provides for commutation only if there has been remarriage. Since the marriage was void, the widow is entitled to payment of the benefits without cessation, allowing, of course, credit for the payments advanced because of the lump sum award upon remarriage. The widow has done nothing to prevent her from taking advantage of the fact that the second marriage was void, and, therefore, she is entitled to a reinstatement of the benefit payments from the time of their cessation, due credit being allowed thereon for all payments on account of the remarriage award.

This result is not affected by reason of the support which the widow received from the man whom she believed to be her second husband. Dependency or affluence is not an element entering into the rights of a widow entitled to awards for the death of her husband in accordance with the Workmen’s Compensation Law. Likewise, support from other sources, or the lack of necessity for support or maintenance, is not a factor. Survivorship without regard to dependency is alone the criterion which entitles a widow to an award. A reading of the statute shows that dependency as a factor in receiving an award is limited only to a husband, and not to a widow.

The Appellate Division, in holding that the payments should only begin from the date of the termination of the purported second marriage, likened it to the case of an annulment ab initia of a voidable marriage, reciting Sleicher v. Sleicher (251 N. Y. 366). In that case, however, the payment was of alimony, which rests on a different basis than a claim under the Workmen’s Compensation Law. Consequently it is not an authorityjn the case at bar.

The order of the Appellate Division should be reversed, and the award of the State Industrial Board reinstated, with costs in this court and in the Appellate Division.

Crane, Ch. J., O’Brien, Htjbbs, Loughran and Rippet, JJ., concur; Lehman, J. dissents.

Ordered accordingly.


text:
    Louis Karameros, Appellant, v. Emma Luther, Respondent.
    Argued October 14, 1938;
    decided November 29, 1938.

      George A. Hopkins, Edward Norwalk and George J. Chryssikos for appellant.
    Plaintiff has established a cause of action for a decree declaring his marriage a nullity. (Karameros v. Luther, 166 Misc. Rep. 376; 254 App. Div. 845; Pettit v. Pettit, 105 App. Div. 312; Bamberger v. Bamberger, 128 Misc. Rep. 1; Spyros v. Spyros, 142 Misc. Rep. 802; McCullen v. McCullen, 162 App. Div. 599; Hervey v. Hervey, 92 N. Y. Supp. 218.) The rule that a judgment is conclusive not only upon the questions actually decided but upon all matters which might have been litigated and decided in the same suit is limited solely to those facts which were necessary to the determination of the issue, and the rule does not include such facts as are not necessary to uphold the former judgment even though such judgment may, in express terms, profess to affirm a particular fact immaterial to the issue and upon which the controversy did not turn. (Rudd v. Cornell, 171 N. Y. 114; Reynolds v. Ætna Life Ins. Co., 160 N. Y. 635; People ex rel. Reilly v. Johnson, 38 N. Y. 63; House v. Lockwood, 137 N. Y. 259; Stannard v. Hubbell, 123 N. Y. 520; Shaw v. Broadbent, 129 N. Y. 114; Converse v. Sickles, 146 N. Y. 200; Genet v. Delaware & Hudson Canal Co., 163 N. Y. 173; 170 N. Y. 278; Griffen v. Keese, 187 N. Y. 454; Shepard Co. v. Taylor Pub. Co., 198 App. Div. 638; Norris v. Hoffman, 133 App. Div. 596; Silberstein v. Silberstein, 218 N. Y. 525; Matter of Anderson, 211 N. Y. 136.) This suit, although between the same parties, is predicated upon a cause of action different from that involved in the previous action. (Goldstein v. Mantell, 155 Misc. Rep. 692; Schuylkill Fuel Corp. v. Nieberg Realty Corp.,
      250 N. Y. 304; Wille v. Maier, 256 N. Y. 465.) The plea of estoppel by former judgment cannot be invoked for the reason that the validity of the marriage relationship between the parties was not litigated in the previous action and determination of that question was not necessary or essential to the judgment entered therein. (Warshor v. Warshor, 130 Misc. Rep. 262; Goodwin v. Goodwin, 80 Misc. Rep. 303; 158 App. Div. 171; Jones v. Jones, 108 N. Y. 415; Silberstein v. Silberstein, 218 N. Y. 525; Townsend v. Van Buskirk, 22 App. Div. 441; Springer v. Bien, 128 N. Y. 99; Earle v. Earle, 141 App. Div. 611; Reynolds v. Ætna Life Ins. Co., 160 N. Y. 635; People ex rel. Reilly v. Johnson, 38 N. Y. 63; House v. Lockwood, 137 N. Y. 259; Rudd v. Cornell, 171 N. Y. 114; Stannard v. Hubbell, 123 N. Y. 520; Irving Nat. Bank v. Law, 10 Fed. Rep. [2d] 721.)

      Nathan Feldman and Melville Taylor for respondent.
    Thejudgment and findings are final and_conclusive upon the parties, not only as to the issues actually determined, but as to every other question which the parties might or ought to have litigated, except as to immaterial and unessential facts. (Rudd v. Cornell, 171 N. Y. 114; Warshor v. Warshor, 130 Misc. Rep. 262.) It is immaterial that the affirmative relief sought in the previous action is different from the affirmative relief sought in the case at bar. (Warshor v. Warshor, 130 Misc. Rep. 262.) The finding of fact that these parties are married was a determination of a question which was necessary and essential to the prior separation action. (Durham v. Durham, 99 App. Div. 450; Warshor v. Warshor, 130 Misc. Rep. 262.) The issue of the marriage of the parties has heretofore been determined, and said determination is res judicata to this action. (Buffalo Fire Appliance Corp. v. City of Norwich, 156 Misc. Rep. 486; Rudd v. Cornell, 171 N. Y. 114; Metropolitan Life Ins. Co. v. Shapiro, 163 Misc. Rep. 76; Stokes v. Foote,
      172 N. Y. 327; Matter of Baker, 249 App. Div. 265; Fischer v. Fischer, 254 N. Y. 463; Lance v. Shaughnessy, 86 Hun, 411; Erie R. R. Co. v. International Ry. Co., 209 App. Div. 380; 239 N. Y. 598; Durham v. Durham, 99 App. Div. 450; Townsend v. Van Buskirk, 22 App. Div. 441; Warshor v. Warshor, 130 Misc. Rep. 262; Eissing Chemical Co. v. People’s Nat. Bank, 205 App. Div. 89.)
   Finch, J.

This action was brought by the plaintiff, Louis Karameros, against Emma Luther for a decree declaring null and void a ceremonial marriage entered into between them in Connecticut on August 16, 1931. On this appeal it is not contested that the defendant lacked the capacity to marry at the time of the ceremonial marriage in 1931, since a final decree of divorce to her from a prior husband had not been granted. Nor is it disputed that the defendant is bound by the determination of the courts that she never entered into a common-law marriage with the plaintiff. It was held, however, at Special Term, and affirmed in the Appellate Division, with one justice dissenting, that a finding of fact in a prior action between the parties to the effect that the plaintiff and defendant were married in 1931 is res judicata on that question.

The sole question on this appeal is whether the finding in this prior suit is decisive of the issue of marriage although, in the absence of that finding, the courts would rule that the parties never were married. This finding.in the prior suit arose as follows:

In 1935 the defendant, Emma Luther, sued the plaintiff, Louis Karameros, for separation on the ground of cruel and inhuman treatment. Karameros entered an answer denying inter alla any cruelty, as well as the allegation of marriage. His answer included an affirmative defense that the ceremonial marriage in 1931 was a nullity. There was also an affirmative defense and a counterclaim for divorce on the ground that Emma Luther was guilty of adultery. A jury verdict was had on the question of adultery, and it was found that no adultery had been committed. The parties then proceeded to the trial of the separation action. Upon that trial the affirmative defense of the validity of the 1931 marriage was withdrawn on consent. The court then dismissed the separation action on the merits for failure to prove a cause of action for separation. The findings of fact, however, included one to the effect that the parties were duly married in New York in 1931. No appeal was taken therefrom. About a month after the judgment was entered, Karameros moved for an order vacating so much of the findings of fact as determined the parties to be husband and wife, and for leave to reinstate the affirmative defense of no marriage and for a new trial on that issue. This motion was denied by the trial judge on the ground that he lacked authority to alter his judgment in this manner.

It is upon this finding of fact in the separation action that the courts below have relied in denying relief to the plaintiff in the case at bar. They have held that the finding is res judicata on the question of marriage between the parties. The principle of res judicata, however, when considered in connection with the facts in the case at bar, does not apply to the determination of facts immaterial to the issue decided, and this is true even though such facts have been put in issue by the pleadings. (Rudd v. Cornell, 171 N. Y. 114.) The prior judgment is conclusive only as to facts which have such a relation to the issue that their determination was necessary to the decision of the issue. (Griffen v. Keese, 187 N. Y. 454; House v. Lockwood, 137 N. Y. 259, 268.) The rule that a judgment in one action is conclusive in a later one, not only as to matters actually litigated therein but also as to any that might have been so litigated, has no application here for the reason that the causes of action have not such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304, 308.)

In the separation action brought by the defendant herein against Louis Karameros, the present plaintiff, it was decided that she had failed to prove acts constituting a cause of action for separation and, therefore, judgment went against her. That was the only material issue decided in the case. It is true that the court made a finding of fact to the effect that the parties, were duly married in New York in 1931, despite Karameros’ withdrawal of the affirmative defense that the ceremonial marriage in 1931 was a nullity. The question of the marriage, however, as it turned out was not a material issue, and, therefore, the finding in that case is not binding on the court in the case at bar, where the question of marriage is the material issue. The two causes of action are different. The decree in the action for separation, being based on a dismissal of the action because of failure to prove the acts relied on for a separation, there was no necessity for any determination of the validity of the marriage. The latter is the basis of this action.

The defendant urges that the question of marriage was an issue in the separation action since, if she had been successful, it would have been necessary for her to prove not only a ground for separation but also that she and the plaintiff were married. In the separation action, however, the court found against her and decided the case on the basis of the absence of statutory grounds for a separation. Therefore, a finding in her favor on the question of marriage was not at all material to the determination of the case. To a contrary holding it might have been a material issue; to the actual holding it was not at all material. In the case at bar a judgment is final as to the immediate purpose and object of that action and as to every fact litigated and decided therein, having such a relation to the issue that its determination was necessary to the determination of the issue.” (Italics interpolated.) (Stannard v. Hubbell, 123 N. Y. 520, 531; Silberstein v. Silberstein, 218 N. Y. 525. See, also, Rudd v. Cornell, 171 N. Y. 114.) The estoppel extends to the material facts which are in issue between the parties to the action, and to such as necessarily bear upon, control and are essential to the adjudication made.” (House v. Lockwood, 137 N. Y. 259, 270.)

It follows that the judgments of the courts below should be reversed, without costs, and the case remitted to the Trial Term, with directions to enter judgment declaring the marriage between the parties null and void.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Rippet, JJ., concur.

Judgment accordingly.


author: Rippey, J. Crane, Ch. J.

text:
    Genevieve Hennessy, as Administratrix of the Estate of William Hennessy, Deceased, Respondent, v. John H. Walker et al., Defendants, and Niagara Freight Lines, Inc., Appellant. David Robertson, by Marie V. Robertson, His Guardian ad Litem, Respondent, v. John H. Walker et al., Defendants, and Niagara Freight Lines, Inc., Appellant. Ralph D. Robertson, Respondent, v. John H. Walker et al., Defendants, and Niagara Freight Lines, Inc., Appellant.

      Argued October 14, 1938;
    decided November 29, 1938.

      Oscar J. Brown for appellant.
    The holding of the trial court that the owner of a semitrailer was responsible for its operation by an independent contractor by reason of section 59 of the Vehicle and Traffic Law (Cons. Laws, ch. 71) was error. (Fluegel v. Coudert, 244 N. Y. 393; Psota v. Long Island R. R. Co., 246 N. Y. 388; Herrick v. Arborio, 144 Misc. Rep. 15; Liberty Highway Co. v. Callahan, 157 N. E. Rep. 708; Kern v. Contract Cartage Co., 9 N. E. Rep. [2d] 869.)

      Edward W. Barrett for Genevieve Hennessy, as administratrix, respondent.
    Appellant was liable as a matted of law for the negligent operation of its semitrailer. (Cons. Laws, ch. 71, § 59; Cohen v. Neustadter, 247 N. Y. 207; State v. Schwartzmann Service, 225 Mo. App. 577; Eddleman v. City of Brazil, 201 Ind. 84; Pecoraro v. Shippers Dispatch, Inc., 162 Misc. Rep. 309; Shuba v. Greendonner, 271 N. Y. 189.)

      Harry F. Whiton for Ralph D. Robertson et al., respondents.
    The owner of the semitrailer is hable under section 59 of the Vehicle and Traffic Law. (Seligman v.
      Friedlander, 199 N. Y. 373; Jackson v. Brown & Kleinhenz, Inc., 273 N. Y. 365.) Statutes in derogation of the common law are not to be so construed as to defeat the evident purpose of the Legislature. (Riggs v. Palmer, 115 N. Y. 506; Manhattan Co. v. Kaldenberg, 165 N. Y. 1; Bell v. Mayor, 105 N. Y. 139; People v. Abeel, 182 N. Y. 415; Cohen v. Neustadter, 247 N. Y. 207; Pecoraro v. Shippers Dispatch, Inc., 162 Misc. Rep. 309.)
   Rippey, J.

At the time of the accident, a semitrailer owned by appellant, Niagara Freight Lines, Inc., was being hauled by a truck owned by defendant Walker and operated over a public highway by his employee Peck. Through the negligence of Peck, a head-on collision occurred between the truck and a Chevrolet automobile occupied by William Hennessy and David and Ralph Robertson, as a result of which Hennessy was killed and the two Robertsons injured. Judgments in favor of the administratrix of Hennessy and in favor of the two Robertsons for injuries causing the death of Hennessy and for injuries to the others due to the negligence of Peck were entered against Walker, against Peck, and against the Niagara Freight Lines, Inc. The latter appealed to the Appellate Division, where the judgments against it were affirmed. We granted permission to appeal to this court.

It appeared at the trial that the semitrailer, when at rest and unattached to a motor vehicle, had two dolly wheels under the front end and two wheels on the rear. After attachment to the tractor, the dolly wheels were raised and served no purpose in its subsequent operation. The tractor was formerly a Ford truck with four wheels, two on the front and two on the rear. The body had been reconstructed by Walker to make it suitable for use in connection with the hauling of semitrailers. The front end of the semitrailer rested on a fifth wheel on the rear end of the tractor and was attached to the latter by means of a kingpin. The tractor and semitrailer had a common braking system operated by the driver of the tractor. The semitrailer could not be operated by itself nor was the tractor designed to carry freight. The semitrailer, loaded with appellant’s freight, was being towed by the tractor between the Syracuse terminal of appellant and Albany, New York, by direction of appellant and with its knowledge and consent.

There is no agreement or concession by the parties as to the nature of the business relationship between appellant, Walker and Peck. In the statement under rule 234 of the Rules of Civil Practice it is apparently assumed by appellant that Walker was an independent contractor, and such was the assumption of appellant on the argument. The character of the relationship was a sharply contested question of fact which should have been submitted to the jury. The trial judge seemed to consider it of minor importance, for he did not submit it to the jury. We cannot say that Walker was an independent contractor or that he or Peck was an agent of appellant and the rights and liabilities of appellant cannot in this court be predicated upon either of those relationships. The only question left for us to decide is whether the owner of a semitrailer attached to a separately owned tractor is liable for the negligent operation of the tractor under section 59 of the Vehicle and Traffic Law (Cons. Laws, ch. 71) without regard to the legal relationship existing between the owners of the two vehicles or between the owner of the semitrailer and the driver of the truck or the control or direction over the operation of the motor vehicle which the owner of the semitrailer may or may not have exercised. The trial court answered the question and charged, as matter of law, that it was liable. Said the court: “ Now, gentlemen, there have been some discussions between the attorneys as to whose responsibility it is for the operation of the truck and semitrailer. You need not go into that, because the Court has decided that in as much as the truck was owned by Walker and operated by his man, and in as much as the semitrailer was operated by the Niagara Freight Lines, Incorporated, and was so attached to the truck as to make it one vehicle (the trailer could not run alone, it had only two wheels, it had to be hitched on to something else in order to operate at all), it was in my judgment a three-truck vehicle. That is what it amounted to. It makes no difference whether it was hitched on to this truck or put on in such fashion that it could not be taken off. It was occupying the highway, and it was owned by two owners, and under the statute the owners of vehicles on the highway are responsible for their operation. This was a vehicle on the highway owned by these two owners; therefore, if you find in favor of the plaintiffs, your verdict will be against the two owners of the vehicle and against the driver thereof.” To the charge an exception was taken. We think the charge necessarily presents reversible error.

Section 59 of the Vehicle and Traffic Law, so far as material, provides: 11 Every owner of a motor vehicle or motor cycle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle or motor cycle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.” It must be noted that the section does not embrace all types of vehicles within its coverage but relates only to motor vehicles and motorcycles. Except as liability for negligence has been extended by statute, with exceptions not here pertinent, a person is responsible only for his own torts. It must be presumed that the Legislature, in making a radical change in the rule of liability, would make its intent and purpose clear (Seligman v. Friedlander, 199 N. Y. 373) and that it went no further than the mischief to be remedied required (Psota v. Long Island R. R. Co., 246 N. Y. 388, 393). A motor vehicle and a motorcycle are each equipped with a motor, a power plant integral with the vehicle. Such a vehicle is a potential agent of destruction when operated by the owner or by others. Prior to the statute under consideration and its predecessors, liability of the owner of such a vehicle could be predicated only upon the negligence of the owner or that of his agent when acting within the scope of his employment under established rules of agency (Van Blaricom v. Dodgson, 220 N. Y. 111) or of that of a servant under the rules applicable to the relation of master and servant (Potts v. Pardee, 220 N. Y. 431, 435). The intent and purpose of the statute and the change in the law was to extend his liability for the negligence of any one who legally uses or operates the motor vehicle or motorcycle in the business of the owner or otherwise with his permission, express or implied (Fluegel v. Coudert, 244 N. Y. 393). Trailers and semitrailers are vehicles within the meaning of the Vehicle and Traffic Law (§ 2, subd. 7) but they are not motor vehicles. The Legislature having defined and classified a trailer and a semitrailer as separate and distinct vehicles (§ 2, subds. 27 and 28), it is presumed that it would have referred to them by name had it intended to include them within the provisions of section 59. Obviously a trailer, as a separate unit, cannot be “ operated ” upon the highway or otherwise. It has no motive power of its own. It cannot be used or moved except by motive power extraneous to the vehicle itself.

In construing a particular statute, the courts must take into consideration all commands of the Legislature relating to the same subject-matter (Seligman v. Friedlander, supra). Upon examination of the various provisions of the Vehicle and Traffic Law, it is evident that the Legislature intended to and, in fact, did literally separately classify trailers and semitrailers and treat them differently than motorcycles and motor vehicles for all the purposes of the law. Prior to 1932, the Legislature defined a “ trailer ” as a vehicle ” for the purposes of the Vehicle and Traffic Law when it said (§ 2, subd. 7) that the term vehicle ” should include every kind of conveyance, except a baby carriage, a street surface car and a push cart.” It excluded a trailer from the term motor vehicle ” because it limited that class to those vehicles propelled by any power other than muscular power ” (subd. 8). A trailer is not “ propelled; ” it is drawn. The distinction between a “ trailer ” and a “ motor vehicle ” is made in other sections of the law. Section 11, subdivision 1, before amendment by chapter 338 of the Laws of 1932, provided separately for registration of a motor vehicle ” and for registration of a “ vehicle commonly known as a ' trailer/ for the transportation of goods, wares and merchandise, not propelled by its own power, to be drawn on the public highways by a motor vehicle operated thereon.” The definition of a trailer was transferred by the amendment above mentioned to subdivision 27 of section 2. Subdivisions 2, 3 and 6 of section 11 have to do exclusively with the registration of and registration fees for motor vehicles, while subdivision 8 of the same section provides solely for registration fees for trailers. Subdivision 4 (as amd. by L. 1933, ch. 285) refers to the carrying of certificates of registration of motor vehicles or trailers. Section 12, subdivision 3, as written before 1930, further draws attention to the distinction between a “ motor vehicle ” and a u trailer ” drawn by the motor vehicle by providing that such a combination requires a separate number plate on the trailer ” with the word “ trailer ” on the plate. By amendments (Laws of 1930, ch. 269, and Laws of 1933, ch. 285) the wording of that subdivision was somewhat changed, but the distinction between the two vehicles remained. Section 14 as it read before 1930, relating to dimensions and weights of vehicles, refers separately to “ motor vehicles ” and trailers ” and semitrailers.” Subsequent amendments to section 14, among other things, clarified the distinction. By section 14, subdivision 12 (Laws of 1933, ch. 295, §2), a distinction is recognized between the motor vehicle and its tow. Required equipment of vehicles relates to motor vehicles ” and “ trailers ” and other vehicles as separate units (§ 15). Many other examples might be cited, but it is sufficient to say that the distinction between motor vehicles (vehicles propelled by power other than muscular and integral with the vehicle) and trailers (vehicles having no power of their own but drawn by motor vehicles) was consistently, uniformly and necessarily kept in mind by the Legislature throughout the Vehicle and Traffic Law wherever reference is required for regulation and use of the two vehicles. In 1932, the decision in Herrick v. Arborio (144 Misc. Rep. 15) was handed down, where it was held that a “ trailer ” was not a “ motor vehicle ” within that term as used in section_59 of the Vehicle and Traffic Law, whereupon the Legislature, apparantly, among other things, to make the distinction between the two vehicles more pronounced, provided separate definitions in section 2, subdivisions 27 and 28, for “ trailer ” and semitrailer ” by saying that a trailer “ shall include any vehicle not propelled by its own power drawn on the public highways by a motor vehicle operated thereon, except vehicles being towed by a nonrigid support and vehicles designed and primarily used for other purposes and only occasionally drawn by a motor vehicle ” (Laws of 1932, ch. 338) and that a semitrailer “ shall include any trailer which is so designed that when operated the forward end of its body or chassis rests upon the body or chassis of the towing vehicle ” (Laws of 1934, ch. 471).

Thus it is clear that the purpose and intent of the Legislature was separately to classify motor vehicles, trailers and other kinds of vehicles and to extend liability by section 59 to an owner of a motor vehicle or of a motorcycle, as separate and distinct kinds of vehicles, for negligence of others in their operation. The literal wording of the statute so indicates; reading the Vehicle and Traffic Law as a whole makes such a construction imperative. So read, the mischief to be remedied was cured. The mere fact that a trailer is .hitched to and drawn by a motor vehicle does not change its character as a separate and distinct vehicle or make it a motor vehicle or in part a motor vehicle within the meaning of section 59. No decision to the contrary has been called to our attention. The Court of Appeals in Ohio has construed a similar statute of Michigan in accord with the construction we are placing upon our own (Liberty Highway Co. v. Callahan, 24 Ohio App. 374). Cases in other jurisdictions, so far as have been found, where motor vehicle laws have been construed, have to do with statutes fixing the maximum weight of motor vehicles (State of Missouri v. Schwartzman Service, Inc., 225 Mo. App. 577; Eddleman v. City of Brazil, 201 Ind. 84; Leamon v. State of Ohio, 17 Ohio App. 323) or requiring lights thereon as equipment when the highways are used (Kern v. Contract Cartage Co., 55 Ohio App. 481; Western Indemnity Co. v. Wasco Land & Stock Co., 51 Cal. App. 672). None of these cases had to do with a special statute fixing liability for negligence, such as our section 59.

In each action the judgment should be reversed as to the appellant, Niagara Freight Lines, Inc., and a new trial granted, with costs to the appellant to abide the event.

Crane, Ch. J.

(dissenting). The defendant Niagara Freight Lines, Inc., owned large trucks which it used in the business carried on by it of delivering goods and merchandise for hire. These big, heavy trucks used the highways of the State of New York. They were built and designed for this purpose. The trucks were so constructed that they could be easily attached to a motor and drawn over the highways. Rather than take the risk of operating these tracks, the owner, the Niagara Freight Lines, Inc., employed one John H. Walker to furnish the motive power, which he did, by attaching the trucks to his motor vehicle and drawing them over the highways. In this fashion the truck owner, although making use of the highways with heavy conveyances, out of which it was making profit, sought to escape all responsibility toward persons or property injured.

These trucks were heavy, cumbersome things as compared with the little motor truck which was drawing them. They have been called trailers or semitrailers, but whatever name we give them, they became a motor vehicle when attached to the power truck. By such construction the vehicle was one.

This case has arisen out of an accident due to the carelessness and negligence of the driver of this contraption while going over the highways of the State; and the Niagara Freight Lines, Inc., seek to escape liability on the ground that it is not in any way forced to obey the traffic law; or, to put it in another form, that the traffic law does not make it responsible as an owner of a motor vehicle. With this I disagree.

The very purpose of the Motor Vehicle Law, as repeatedly stated (Jackson v. Brown & Kleinhenz, Inc., 273 N. Y. 365, and Cohen v. Neustadter, 247 N. Y. 207), is to protect people upon our highways from these rapidly moving trucks and automobiles propelled by power of any kind. The object is safety, and to insure this safety the law has placed responsibility upon the owner of any motor vehicle who permits or authorizes another to draw it or propel it through the public streets and highways. When the truck without power is constructed, built into, or formed with another so as to make one vehicle propelled by gasoline engine or motor, it comes within the intent and purpose of this law, and is a motor vehicle. Section 59 of the Vehicle and Traffic Law reads: Every owner of a motor vehicle or motor cycle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle or motor cycle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.”

What is a motor vehicle? Article I, section 2, subdivision 8, defines a motor vehicle as follows: “ ‘ Motor vehicle ’ shall include all vehicles propelled by any power other than • muscular power * * *.” To hold other-

wise is to furnish an easy method for evading and violating with impunity the purposes and objects of this very salutary law. Corporations like this owner corporation can carry on extensive express business, trucking and carting great vans over our highways, endangering the use thereof by others and escape all responsibility for negligence by employing an impecunious, irresponsible person to hitch his motor which happens to be on wheels to the truck for the purpose of drawing it and propelling it. I am against allowing any such invasion, and am convinced that the Motor Vehicle Law requires no such interpretation.

As long as vans stay in their sheds they are not motor vehicles; when they are attached to or constructed into a motor vehicle and begin to move over the highways, they become motor vehicles, under the Vehicle and Traffic Law, and both owners, whether they own the whole or only a part, are liable in full for all consequences. (See what other States have said: Leamon v. State of Ohio, 17 Ohio App. 323; State of Missouri v. Schwartzman Service, Inc., 225 Mo. App. 577; Eddleman v. City of Brazil, 201 Ind. 84; Babbitt, Motor Vehicle Law [4th ed.], § 12; 5 Am. Juris., Automobiles, § 256.)

The judgments appealed from should be affirmed, with costs.

Lehman, O’Brien, Hubbs and Finch, JJ., concur with Rippey, J.; Crane, Ch. J., dissents in opinion in which Loughran, J., concurs. .

Judgment accordingly.


author: Loughran, J.

text:
    Erika Denecke, Appellant, v. Property Collaterals, Inc., et al., Defendants, and City of New York, Respondent.
    Argued October 17, 1938;
    decided November 29, 1938.

      Frederick B. Merkle, Walter H. W. Luberts and Harry S. Austin for appellant.
    In view of the accord and agreement, any slight misdesignation in the notice should be disregarded. (Schwartz v. City of New York, 250 N. Y. 332.)

      William C. Chanler, Corporation Counsel (Paxton Blair and James Hall Prothero of counsel), for respondent.

      Since the burden of the complaint was negligence in permitting a particular condition to recur at a given spot, the error in describing its location rendered the notice insufficient in law. (Kroin v. City of New York, 177 App. Div. 738; McClorey v. City of New York, 158 App. Div. 946; House v. City of New York, 140 Misc. Rep. 132; Van Den Bergh v. City of New York, 208 App. Div. 72; Learned v. Mayor, 21 Misc. Rep. 601; Atkinson v. City of Indianapolis, 101 Ind. App. 620.) The dismissal of the complaint was right even if the city was not misled and even if its agents correctly guessed the facts in spite of the misstatements in the notice. (Weisman v. City of New York, 219 N. Y. 178; Rogers v. Village of Port Chester, 234 N. Y. 182; Collins v. City of Memphis, 16 Fed. Supp. 204; Ponsrok v. City of Yonkers, 254 N. Y. 91; Rauber v. Village of Wellsville, 83 App. Div. 581; Casey v. City of New York, 217 N. Y. 192.)
   Loughran, J.

Plaintiff fell upon a sidewalk and suffered injuries for which she sued. After the case had been opened to the jury, the complaint as against the defendant city of New York was dismissed on the ground that the antecedent notice of claim filed by the plaintiff under chapter 572 of the Laws of 1886 was not a sufficient statement of the “ place at which the injuries were received.” Whether this ruling was correct is the single question presented for decision on this appeal by the plaintiff from an affirmance by the Appellate Division.

The notice filed by the plaintiff charged that the city had been negligent “ in permitting that portion of the sidewalk on the west side of Parsons Boulevard, also known as Parsons Avenue and Flushing Avenue, between 86th Avenue and 87th Avenue, in the Borough of Queens, City of New York, being more particularly in front of premises known as and by the street number 86-12 Parsons Boulevard, to be in a negligent, dangerous and unsafe condition * * *.” The notice further stated: The said sidewalk was covered with a formation of ice caused by the freezing of water flowing from a defective, worn and improper drain upon the building next adjoining premises 86-12 Parsons Boulevard to the north and known as and by the street number 8610 Parsons Boulevard, Borough of Queens, City of New York.”

In a colloquy between them and the trial judge, counsel in effect stipulated these facts: On the west side of Parsons boulevard between Eighty-sixth avenue and Eighty-seventh avenue (a distance of about 200 feet) there are but two separate structures. An apartment house with ground floor stores occupies the southerly half of the area. North of this house (and separated therefrom by an alleyway) is an unbroken row of “ taxpayer ” stores. The stores in the apartment house are numbered 8616-8626. The so-called taxpayer stores are numbered 8606-8614. Plaintiff fell in front of the store numbered 8616 — not (as the notice said) in front of premises numbered 8612. The drain mentioned in the notice was not (as therein stated) upon premises numbered 8610. The store nearest to this drain was numbered 8614. There was no other drain or like object on the Parsons boulevard side of either of the structures in question.

The aim of chapter 572 of the Laws of 1886 has often been expounded. “ The plain purpose of this statute, and of similar provisions in the charters of the various municipalities throughout the state, is to guard them against imposition by requiring notice of the circumstances of an injury upon which a claim for damages is made, so that its authorities may be in a position to investigate the facts as to time and place, and decide whether the case is one for settlement or litigation ” (Purdy v. City of New York, 193 N. Y. 521, 523). We think the notice filed by this plaintiff stated the circumstances of her injury with such practical certainty as to satisfy the purpose of the statute.

The place was correctly described as the west side of a named street between two named cross thoroughfares and was identified by reference to a lone, fixed and visible object as the thing which brought about the sidewalk condition that occasioned the injuries. We cannot suppose that the average man- — -when guided by that data — could have been misled by the unnecessary addition of mismatched street numbers. The statute did not call upon the plaintiff to mark off the precise spot where she was hurt, and, since everybody actually knew what place it was that was really meant, the notice was sufficient. (Beyer v. City of North Tonawanda, 183 N. Y. 338.)

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

Crane, Ch. J., Lehman, O’Brien, Hubbs, Finch and Rippey, JJ., concur.

Judgments reversed, etc.


author: Crane, Ch. J. Finch, J.

text:
    Joseph T. Ryerson & Son, Inc., Respondent, v. A. V. O’Donnell, Inc., et al., Defendants, and Jacob Shapiro, Doing Business under the Name of M. Shapiro & Son, Appellant.

      Argued- October 17, 1938;
    decided November 29, 1938.

      Louis Rosenberg, Herbert M. Rosenberg and Benjamin McClung for appellant.
    By the express provisions of the Uniform Sales Act, appellant was a bona fide purchaser for value, without notice of respondent’s reservations of title, and the contracts of conditional sale were, accordingly, void as to him. (Kommel v. Herb-Gner Constr. Co., 256 N. Y. 333; Cohen v. 1165 Fulton Ave. Corp., 251 N. Y. 24; Alf Holding Corp. v. American Stove Co., 253 N. Y. 450; Russ Soda Fountain Co. v. Desind, 150 Misc. Rep. 568; Meisel Tire Co. v. Mar-Bel Trading Co., 155 Misc. Rep. 664.) Appellant’s right to the use of the bars for the purpose of completing the subcontractor’s work, expressly conferred upon him by the subcontracts, was superior to respondent’s rights under its contracts of conditional sale, which were not filed or brought to his notice. (Duplan Silk Co. v. Spencer,
      115 Fed. Rep. 689; Ackroyd & Sons v. Proctor, 173 App. Div. 413; 179 App. Div. 402; Israel v. Burke & Sons Co., 97 Misc. Rep. 371.) Replevin was not maintainable even if appellant be deemed merely a pledgee of the bars. (Byrne v. Weidenfeld, 113 App. Div. 451; Sager v. Blain, 44 N. Y. 445; Thompson v. St. Nicholas Nat. Bank, 113 N. Y. 325.) The recovery of damages by respondent for wrongful detention of the bars was in any event unwarranted. (Coastal Equipment Co. v. Herrick, 243 App. Div. 97; Jermyn v. Hunter, 93 App. Div. 175; Greenberger v. North Side Storage Warehouse Co., 170 App. Div. 887; Rapid Safety Filter Co. v. Wyckoff, 20 Misc. Rep. 17.)

      Samuel L. Teitler and Samuel B. Newman for respondent.
    The respondent’s reservation of title to the steel rods is void only to the extent of the pledge, and after repayment to appellant of the $2,800 advance, respondent was entitled to the return of the steel rods or their value. (La Fetra v. Glover, 10 Misc. Rep. 70; Canton Surgical & Dental Co. v. Webb, 16 N. Y. Supp. 932; Kauffman v. Klang, 16 Misc. Rep. 379; McNeil v. Tenth Nat. Bank, 46 N. Y. 325; Barnard v. Campbell, 55 N. Y. 456; Adams v. Bowerman, 109 N. Y. 23; Dows v. Kidder, 84 N. Y. 121; LeMarchant v. Moore, 150 N. Y. 209; Bowen v. Dawley, 116 App. Div. 568.) Replevin will lie against the appellant. (Hitchcock v. Wimpleberg, 103 App. Div. 53.) The proper rule of damages was applied. (Hitchcock v. Wimpleberg, 103 App. Div. 53.)
   Crane, Ch. J.

On February 11, 1931, Jacob Shapiro, doing business under the name of M. Shapiro & Son, made a contract with Fabian Operating Corporation of New York to erect two theatres, one at Clinton avenue and North Pearl street, in Albany, and the other at 617-621 State street, in Schenectady, in conformity with plans and specifications prepared by John Eberson, architect of the city of New York. The contractor was to be paid the actual net cost of performing the work, and $50,000 to cover his overhead and profit. If the actual net cost, plus $50,000, exceeded the sum of $1,225,000, the contractor agreed to pay the excess. By article 5 of the contract, Shapiro assumed and became responsible for the acts and omissions of each subcontractor to whom any part of the work was awarded and all of the terms and conditions of the agreement with the Fabian Company were to be incorporated into contracts with each subcontractor. By article 24 the contractor further agreed to deliver the buildings fully completed, free and clear from any and all liens arising on account of any labor performed or materials furnished by the contractor or any subcontractor.

Shapiro entered into subcontracts with A. V. O’Donnell, Inc., of 101 Park avenue, New York city, to furnish all necessary labor, equipment and material, including reinforcement, to install all concrete foundation walls up to grade, including tunnel, pit and trench walls for these two theatres. Certain portions of these O’Donnell contracts must be quoted. Article V contains these clauses:

The party of the first part being obligated to finish his work under said contract above referred to by a day certain, time is made of the essence of this contract.

The party of the second part agrees that if he shall default in finishing at the time herein fixed * * * so as to cause any damage for which the party of the first part shall suffer or become liable he shall make good to the party of the first part any such damage.”

In article IX we find this condition:

“ The party of the first part may retain from any money due or to become due hereunder, sufficient to indemnify him against any * * * damages.”

Article X. * * * No materials delivered on the premises to form part of the works shall be removed therefrom, without the consent of the party of the first part, excepting only such surplus material as may remain after completion of the work.”

Article XI. Should the party of the second part at any time * * * become insolvent, * * * the party of the first part shall be at liberty * * * to terminate this contract, and may use any materials, * * * furnished by or belonging to the party of the second part and then on the premises, in completing the work.”

A. Y. O’Donnell, Inc., was to be paid $31,900 for the Albany job, and $30,550 for the Schenectady job, under the following terms: 85% of the value of all labor and materials incorporated in the building monthly shall become due and payable on the 15th of the following month, and the balance, thirty days after the completion of all work called for in this contract, and the acceptance of same by the owner and architect.” So much for the contractual relation of these parties.

There now enters into the case Joseph T. Ryerson & Son, Inc., an Illinois corporation, which entered into a written agreement with the defendant A. Y. O’Donnell, Inc., to sell reinforcing bars to be used in the construction of these theatres. These bars were called for in the specifications with which the O’Donnell Company was obliged to comply. Prior to the 3d day of April, 1931 the Ryerson Company had delivered to O’Donnell, Inc., at the theatre sites in Albany and Schenectady, all the steel or reinforcing bars covered by the contracts between Joseph T. Ryerson & Son, Inc., and A. V. O’Donnell, Inc. The purchase price of the steel or reinforcing bars was over $11,000, of which amount A. Y. O’Donnell, Inc., had paid only $3,500, leaving a balance due at the time O’Donnell abandoned the work on April 3,1931.

The contracts made between the Ryerson and O’Donnell companies contained provisions reserving title in all of said steel in the Ryerson Company until the price had been fully paid for; but neither of the contracts had been filed, as required by section 66 or section 67 of the Personal Property Law iCons. Laws, ch. 41), and the general contractor Shapiro had no actual notice as to these provisions prior to April 14, 1931. These steel or reinforcing bars having been delivered to the O’Donnell Company, and that company being in possession of them on the theatre sites, these reservation of title provisions in the contracts were void as against a bona fide purchaser for value.

Section 65 of the Personal Property Law provides that “ Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from * * * the buyer, who, without notice of such provision, purchases the goods * * * before the contract or copy thereof shall be filed as hereinafter provided. * * * This section shall not apply to conditional sales of goods for resale;” and section 69 provides that “ When goods are delivered under a conditional sale contract and the seller expressly or impliedly consents that the buyer may resell them prior to performance of the condition, the same shall be valid whether filed or not except that the reservation of property shall be void against purchasers from the buyer in good faith for value and without actual knowledge of the condition of such contract.”

Shapiro came within the meaning and provisions of these sections as a bona fide purchaser for value, having parted with his money in relying upon the delivery of the reinforcing bars to the O’Donnells and his right under the main contract to use them in completing the work if O’Donnell failed to do so.

The referee in this case made the following findings of fact:

“ 20. That on the 2nd day of April, 1931, the defendant Shapiro advanced to the defendant A. Y. O’Donnell, Inc., the sum of $2,800 in excess of the amount then due the latter under the contracts between them.

“ 21. That such advancement was made by the defendant Shapiro in reliance upon the statement of A. V. O’Donnell, president of the A. V. O’Donnell, Inc., that the steel previously delivered * * * belonged to the defendant A. Y. O’Donnell, Inc., and also in reliance upon a clause in the contracts between said defendants that in case of default or abandonment of operations by the defendant A. V. O’Donnell, Inc., the defendant Shapiro might use any materials, implements, appliances or tools furnished by or belonging to the defendant A. V. O’Donnell, Inc., and then on the premises, in completing the work.”

The facts adjust themselves as follows: Shapiro is under contract to erect two theatres; O’Donnell agrees to do part of the work and furnish reinforcing bars as per specifications; O’Donnell agrees that any material on the premises shall not be removed without the consent of Shapiro, and that if he abandons the work, Shapiro may use that material in completing the job, as he was obliged to do; Shapiro advances O’Donnell $2,800 more than he is entitled to at the time, and does so in reliance upon the possession of the reinforcing bars and in reliance upon the provision of the contract that he can use those bars in the building if O’Donnell fails to do so; in other words, the $2,800 bought the bars before Shapiro had any knowledge that Ryerson claimed them. A waiver on the part of the promisee of a legal right is sufficient consideration. (Hamer v. Sidway, 124 N. Y. 538.) Shapiro waived his right to retain the $2,800 until the work had been done, advancing it to O’Donnell at his request before it was due.

Here was no loan of money to O’Donnell on the strength of security which was to be returned when the money was paid. Shapiro took the reinforcing bars as a matter of right under his contract with O’Donnell, knowing that he could use them — must use them in completing the work. O’Donnell defaulted and went into bankruptcy, and Shapiro’s subsequent action was not under any loan agreement, but in pursuance of terms and conditions providing for just such a situation.

We, therefore, cannot sustain the holdings below, that Shapiro must pay for the use of these reinforcing bars over and above the amount of the $2,800 which he had advanced to O’Donnell. He was a purchaser of these bars according to his arrangements with O’Donnell and was entitled to use them in the building.

We desire to rest our decision upon the merits of this case although there be another fatal objection to sustaining the judgment below. Joseph T. Ryerson & Son, Inc., has brought this action to recover possession of the reinforcing bars. The complaint alleges that on or about April 14, 1931, the defendants M. Shapiro & Son and Fabian Securities, Inc., wrongfully took said unused bars and wrongfully detained and still detain them. The demand is that the defendants be adjudged to deliver to the plaintiff said 114 tons of said unused bars and, in case delivery thereof cannot be had, that the plaintiff may have judgment to recover the value thereof in the sum of $5,450, with interest thereon. This is an action to recover chattels, as defined in article 66 of the Civil Practice Act. In such an action the plaintiff may proceed to recover the chattels or their value although he has not required the sheriff to replevy or take them. Final judgment in such an action, if the chattel is not returned, must award the plaintiff the sum fixed as the value thereof. Section 1120 of the Civil Practice Act states that the verdict, report or decision which awards to the plaintiff a chattel which has not been replevied or which has been delivered to the unsuccessful party, must fix the value of the chattel at the time of the trial. The referee found that at the date of the trial of this action the steel had no value and had become an integral part of the real property and so cannot be removed without a destruction of the buildings. He did fix, however, the value of the steel at the time it was taken by the defendant Shapiro at $4,644.50 and gave judgment for the difference between that and the $2,800 advanced by Shapiro to O’Donnell, with interest, as damages for wrongful detention. Strictly speaking, such a result cannot be reached in an action for the recovery of a chattel — an action for conversion being the proper remedy. We prefer not to stress these practice points as grounds for reversal if there be other reasons more substantial. The referee said that the defendant Shapiro, by the advancement of this $2,800 became a pledgee of the steel to the extent of the advancement. We cannot see the transaction in any such light.

For the reasons which I have given, Shapiro became a purchaser of the steel, having advanced this sum under the right reserved in his contract to use it in the building in case O’Donnell defaulted. O’Donnell did default, and Shapiro’s right became superior to that of the plaintiff which had failed to seek the security given it by the Personal Property Law.

The judgments should be reversed, and the complaint dismissed, with costs in all courts.

Finch, J.

(dissenting). The unanimous affirmance by the Appellate Division of the judgment entered on the decision of the referee seems to me correct. The referee has found as a fact that the defendant did not attempt to purchase this steel but, as a pledgee, advanced the sum of $2,800 in excess of the amount then due and payable under • the contract between the parties. The appellant accepts “ * * * as fully warranted all of the salient facts found by the referee.” It is true that the Personal Property Law (Cons. Laws, ch. 41), section 65, where conditional sales contracts are not filed, holds them void as to purchasers or creditors without notice, but this statute does not attempt to change the terms or character of the title which a pledgee acquires. His rights depend upon the terms of the agreement which he has made, and in this case it was merely a pledge. Nor can there be an estoppel of wider application than justified by the amount advanced as a pledge. Up to the amount of the pledge this defendant has been reimbursed. Beyond that he has no right to recover.

It is next said that even if the steel of the plaintiff has been used by the appellant and incorporated in the building, the plaintiff may not recover the value of this steel over and_ above the amount of the pledge because this is an action brought for the chattels or their value, and that this value must be fixed as of the time of trial. At that time the referee found that the steel was an integral part of the real property, could not be removed without the destruction of the building, and hence had no value. At the same time the referee found the value of similar steel and gave judgment for that amount less the amount of the pledge. If the appellant has wrongfully used the steel of the plaintiff in the building, he cannot be heard to complain that he was assessed the value of the steel. Furthermore, the referee found the value of the steel at the time of the conversion, which value continued up to and through the trial. It is said that the plaintiff’s action is in replevin, and hence damages for detention may not be recovered. The complaint is very comprehensive in its statement of the facts, and the pleadings fully set forth the true situation. Hence no one could have been misled as to the issues which were being tried. Furthermore, the plaintiff, having set forth his facts, should be entitled to whatever relief these facts entitle him. In addition, if there was error, we are directed to disregard it if no substantial right of any party is affected thereby.

The judgment of the Appellate Division affirming the judgment entered on the decision of the referee should be affirmed.

Lehman, O’Brien, Hubbs and Lotjghran, JJ., concur with Crane, Ch. J.; Finch, J., dissents in opinion in which Rippey, J., concurs.

Judgments reversed, etc. (See 279 N. Y. 789.)