author: Hiscock, Ch. J.

text:
    American Surety Company of New York, Respondent, v. Patriotic Assurance Company, Ltd., Appellant.
    Appeal — insurance (fire) — contract ■— warranty —■ Court of Appeals without authority, on appeal from unanimous affirmance of verdict, to consider whether motion for nonsuit should have been granted because of breach of warranty on face of contract — question of interpretation presented by exceptions to evidence — interpretation of clause of insurance binder describing location — misdescription, constituting breach of warranty — rule that inconsistent line of description may be disregarded where there is a complete description without it not applicable to insurance contract — description of location is a warranty — error to receive in evidence a lease of shed to show that insurance covered other land than described in contract — error to charge that misrepresentation was not a defense unless intentionally made —• that defendant had means of ascertaining location of property insured does not excuse misrepresentations.
    1. On appeal from an unanimous affirmance of a judgment entered upon findings which set forth the terms of a contract an argument is permissible as to its interpretation and effect but, on appeal from an unanimous affirmance entered upon a verdict, defendant cannot successfully argue that the complaint should have been dismissed on its motion for a nonsuit because of a breach of warranty appearing from the face of the contract sued upon.
    2. In this action, however, to recover upon a contract of fire insurance, the question of the interpretation of the contract is presented by exceptions to the admission of evidence. Furthermore, the trial justice while refusing to grant a nonsuit, did instruct the jury that in order to find a verdict for the plaintiff it must find that the property insured was located at the time of the fire within the area described in the binder and not elsewhere, which finding was impossible if our interpretation of the description is correct.
    3. An insurance binder describing the location in which property insured was supposed to be as “ about 250 ft. west of Berry St., running abt. 175 on N. 13 th and 80 ft. deep ” means an area which commences and all of which is 250 feet from Berry street and cannot be interpreted as meaning an area of which the middle fine is that distance west of Berry street. The use of the word “ about ” does not cover any such discrepancy in the description, but, in any event, the description means a parcel of land 80 feet deep from the boundary street, there being no qualifying word as to depth, and, where it appears that this depth would not come within a considerable distance of the place where was actually located the property insured, there is a misdescription as to location, constituting- a breach of warranty which prevents the insured from recovering on the contract for a loss.
    4. The rule that an inconsistent line of description may be dropped out and disregarded, where there is a complete description of a parcel of land without it, is not applicable. The description in the binder of the parcel as being 250 feet west of Berry street is quite essential to the location and complete description of the premises intended to be bound by it and is a warranty, the truth of which is a condition precedent to any liability on the part of the insurer.
    5. It was error to receive in evidence a lease made to plaintiff of certain premises described as “ a one story shed on North 13th Street on the north side of said street beginning about 250 feet west of Berry Street,” etc. The description in the binder was free from ambiguity. It was not of a shed but of a parcel of land and there was no justification for the attempt to show by a reference to the shed mentioned in the lease that the description in the binder covered some other parcel of land than it did.
    6. It was also error for the court to charge in effect that plaintiff’s alleged misrepresentation that the property insured was located “ in the open ” when as a matter of fact it was stored in a shed would not be a defense to this action unless such misrepresentation was knowingly and intentionally made. In an action upon a contract of fire insurance all that is necessary for defendant to show is that the contract being invoked against it was induced by representations which were false and material and upon which reliance was placed in executing the contract.
    7. A contention that defendant had maps of this neighborhood and that by use of such maps coupled with personal investigation might have discovered the true location of the insured property and that because it might have done this and did not do it plaintiff is relieved of any unfavorable consequences of what was erroneously placed in its binder and inaccurately stated by its agent, cannot be sustained. A person making a material misrepresentation in an application for insurance cannot be relieved from the consequences thereof by showing that the other party by the exercise of sufficient diligence and pains might have discovered the falsity of the representation. (Sanders v. Cooper, 115 N. Y. 279, followed.)

      American Surety Co. v. Patriotic Assurance Co., 213 App. Div. 819, reversed.
    (Argued December 19, 1925;
    decided January 12, 1926.)

      Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 2, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      Frank Sowers, George Richards and F. 0. Affeld, Jr., for appellant.
    The words of the standard policy, “ while located and contained as described herein but not elsewhere,” are a warranty by the insured that property is covered only within the described location. (Hicks v. British Am. Assur. Co., 162 N. Y. 284; Lipman v. Niagara Fire Ins. Co., 121 N. Y. 454; Heilbrunn v. German Alliance, Ins. Co., 140 App. Div. 557; Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240; Bahr v. Natl. Fire Ins. Co., 80 Hun, 309; London Assurance Corp. v. Thompson, 170 N. Y. 94; Village of L’Anse v. Fire Assn. of Phila, 119 Mich. 427; British American Ins. Co. v. Miller, 91 Tex. 414; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452.) The premises or subject-matter of the contract to which the written contract is to be applied by the court, are portrayed upon maps which, in order to eliminate any occasion for dispute, were stipulated upon the record by counsel for the respective parties to be correct. This court has jurisdiction to examine written contracts and the stipulated maps, and, if unambiguous, to pass upon the meaning and legal effect of the contract sued upon as applied to the stipulated maps of description. (Hartigan v. Casualty Co. of America, 227 N. Y. 175; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Stemmler v. Mayor of N. Y., 179 N. Y. 473; Townsend v. Masterson, 15 N. Y. 587.) We contend that, as matter of law, the description of location in the binder is unambiguous and applicable only to the area as claimed by the defendant, and that, therefore, it was error for the trial court to leave to the jury the determination of the location covered by the binder. (Fairchild v. Insurance Co., 51 N. Y. 65; London Assurance Corp. v. Thompson, 170 N. Y. 94.) It was reversible error to charge that the defendant, to sustain its defense of misrepresentation respecting the location of the property to be insured Was required to prove intent to defraud and deceive and all the elements of fraud. (Armour v. Transatlantic Ins. Co., 90 N. Y. 450; Eastern D. P. Dye Works v. Travelers Ins. Co., 234 N. Y. 441; Leary v. Getter, 224 N. Y. 56; Sparer v. Travelers Ins. Co., 185 App. Div. 861; Fay v. Metropolitan Life Ins. Co., 119 Misc. Rep. 715; Hicks v. British Am. Assur. Co., 162 N. Y. 284; Lipman v. Niagara Fire Ins. Co., 121 N. Y. 454; Clarke Construction Co. v. City of New York, 229 N. Y. 413.)

      William Otis Badger, Jr., Paul D. Compton and Milo Otis Bennett for respondent.
    The description in the binder sufficiently described the location of the subject-matter of the insurance. (Kerr on Ins. p. 62, § 34; London Assurance Corp. v. Thompson, 170 N. Y. 94; Bohr v. Nat. Fire Ins. Co., 80 Hun, 309; Burr v. Broadway Ins. Co., 16 N. Y. 267; Curnen v. Law Union & Rock Ins. Co., 159 App. Div. 493; LeGendre v. Scottish U. & N. Ins. Co., 95 App. Div. 562.) It was the duty of defendant to investigate the risk promptly and to consult its maps and determine whether it had been correctly advised as to the details of the risk. Defendant could not rest on the statements of the insured and sustain a defense of breach of warranty as to location. (Joyce on Ins. [2d ed.] 1850; Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 312; Alterman v. Home Ins. Co., 112 Misc. Rep. 445; De Noyelles v. Del. Ins. Co., 78 Misc. Rep. 649; Curnen v. Law Union, etc., Ins. Co., 159 App. Div. 493; Scharles v. Hubbard, 74 Misc. Rep. 72; Forward v. Cont. Ins. Co., 142 N. Y. 387; Myer v. Idlewood Assn., 146 N. Y. Supp. 469; Woodruff v. Imp. Fire Ins. Co., 83 N. Y. 133; Van Schoick v. Niagara F. Ins. Co., 68 N. Y. 435; Haight v. Cont. Ins. Co., 92 N. Y. 53.) The court did not err in charging that the defendant was required to prove that the misrepresentation, if any, was fraudulent. The origin and history of the doctrine of constructive fraud as applied to misrepresentations and concealments in insurance cases demonstrate that the rule cannot be applied to actions on fire insurance policies to the same extent as to causes involving marine losses. (Richards on Insurance Law [3d ed.], 117; Seaton v. Heath, 1 K. B. 782; Clarkson v. Western Assn. Co., 33 App. Div. 23; Ruggles v. General Int. Ins. Co., 4 Mason, 81; Green v. Merchants’ Ins. Co., 10 Pick. 402; Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. 452.)

      Frank C. Laughlin for New York Board of Fire Underwriters et ah, amici curiae.

    Irrespective of whether or not the representation as to the location of the property insured was fraudulently made, the plaintiff is precluded by the contract of insurance from recovering against the defendant: (O’Neill v. Goodman Contracting Co., 169 App. Div. 917; Thompson v. United Traction Co., 147 App. Div. 392; Ford v. Wanamaker, 165 App. Div. 284; Hicks v. British Am. Assur. Co., 162 N. Y. 284; Heilbrunn v. German Alliance Ins. Co., 140 App. Div. 557; Graham v. Fireman’s Ins. Co., 87 N. Y. 69; Armour v. Trans. Fire Ins. Co., 90 N. Y. 450; E. P. D. Dye Works v. Travelers Ins. Co., 234 N. Y. 441; Sparer v. Travelers Ins. Co., 185 App. Div. 861.) The charge of the court that the false material representation of fact as to the location of the property insured did not defeat its right to recover under the insurance contract is contrary to and in direct conflict with the well-settled principles of contract and insurance law. (Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240; Bush Terminal Co. v. G. & R. Fire Ins. Co., 182 App. Div. 748; 228 N. Y. 575; Acione v. Commercial Union Ass. Co., Ltd., 182 App. Div. 822; Rosalind Realty Co. v. Western Ins. Co., 179 App. Div. 706; Levinton v. Ohio Farmers Ins. Co., 110 Atl. Rep. 295; Armour v. Transatlantic Fire Ins. Co., 90 N. Y. 450; Bloomquist v.
      Farson, 222 N. Y. 375; Leary v. Geller, 224 N. Y. 56; E. D. P. Dye Works v. Travelers Ins. Co., 234 N. Y. 441; Sparer v. Travelers Ins. Co., 185 App. Div. 861; Evans v. Columbia Fire Ins. Co., 40 Misc. Rep. 316; Kasprzyk v. Met. Life Ins. Co., 79 Misc. Rep. 261; Fay v. Met. Life Ins. Co., 119 Misc. Rep. 715.)
   Hiscock, Ch. J.

Plaintiff was the owner of a large amount of cement which it desired to have insured. Through a firm of insurance brokers who became its agents and representatives it made application to another firm of insurance brokers who represented defendant and other insurance companies for the issuance of insurance originally fixed at $55,000 and subsequently increased to $65,000. Plaintiff’s application and the insurance now claimed against defendant were accepted and effected, if at all, by means of a binder prepared and submitted by plaintiff’s brokers to defendant’s agents. This binder was only intended to effect temporary insurance and was comparatively brief in form, but it is conceded that it was subject to all of the clauses, warranties and conditions which would be found in a New York Standard Fire Insurance policy. As presented by plaintiff through its representatives and accepted by defendant’s brokers and agents it made defendant liable to the extent of $15,000 insurance upon the cement which was subsequently destroyed, unless the purported insurance is vitiated by one or both of two circumstances.

Defendant claims that the description in the binder of the place where the cement was claimed to be located was materially erroneous and that this description was in the nature of a warranty and its correctness a condition precedent to any validity of the insurance. It also claims that when some question arose in connection with the proposed binder about the situation of the cement plaintiff through its agent made a representation which was inaccurate and material and that for this reason also the contract of insurance became nugatory. We do not understand it to be claimed that these misstatements were intentionally false or fraudulent.

The binder which was presented to defendant’s representatives described the subject of the insurance as cement and other building materials and “ location North 13th Street, Bldyn., N /S of Street about 250 ft. west of Berry St., running abt. 175' on N. 13th and 80 ft. deep.” “ N /S ” is conceded to mean the north side of Thirteenth street. If this description is interpreted to mean an area commencing 250 feet from Berry street and with a depth of 80 feet from the line of North Thirteenth street by which it was bounded it concededly did not include by a considerable space the shed in which was located the cement and we shall consider the interpretation of the description later.

When the binder was first presented to defendant’s representatives some question arose as to the character of the area understood to be described and it is claimed by defendant and denied by plaintiff that in answer to questions by one of defendant’s agents plaintiff’s representative who was presenting the binder stated in effect' that the cement was “ in the open ” and that this state-, ment was verified a few days later when a binder was again presented by plaintiff’s brokers to defendant’s brokers for the purpose of having the insurance increased and that defendant’s broker in accepting the binder and writing the insurance relied on this representation. As a matter of fact the cement was not in an open space but was stored in one of a series of sheds or buildings which, according to some of the evidence, were more or less dilapidated and inflammable thereby increasing the risks of the insurer.

There is evidence that at the office of defendant’s agents where these binders were presented there were no maps of this location but that in another office which was brought into the consultation there were maps of the location specified in the binder and that it was because such maps showed that part of the area described in the application was occupied by a building that inquiries were made which led to the representation by plaintiff’s agent that the cement was in the open and not in said building. It is also stated that this particular building was of brick and cement and, therefore, from the insurance standpoint much different than the wooden one in which the cement was actually stored.

These are the substantial facts upon which are presented the defenses to plaintiff’s claim and it is argued in respect of the first proposition that this incorrect description of the location of the property caused such a breach of warranty and failure of a condition precedent that the complaint should have been dismissed, and in respect of the second proposition that the trial justice in submitting the question of alleged misrepresentation of the location of the cement in the open committed substantial error by charging in effect that such misrepresentation was not a defense unless it was intended to be false and fraudulent.

In view of the unanimous affirmance, of course, defendant cannot successfully argue that the complaint should have been dismissed because of misdescription of location on its motion for a non-suit. Its counsel confuses this case where there is a verdict with cases where there have been findings which set forth the terms of a contract and thus permitted an argument as to its interpretation and effect. We think, however, that the question of the interpretation of the description in the binder of the location of the cement and of the effect of misstatements therein, if such there were, are presented to us by exceptions to the admission of some of plaintiff’s evidence. It is also to be noted that the trial justice while refusing to grant a nonsuit, did instruct the jury that in order to find a verdict for the plaintiff it must find that the cement was located at the time of the fire within the area described in the binder and not elsewhere, and which finding was impossible if our interpretation of the description is correct.

We think that there is no ambiguity in, or doubt concerning the interpretation of, the description included in the binder and that when the latter described the location in which the cement was supposed to be as “ about 250 ft. west of Berry St., running abt. 175 on N. 13th and 80 ft. deep ” it meant an area which commenced, and all of which was, 250 feet from Berry street and that it cannot be interpreted as meaning, as suggested by plaintiff’s counsel, an area of which the middle line was 250 feet west of Berry street. Of course, we do not overlook the use of the word “ about ” in connection with the course of 250 feet. The effect of this or similar words in a description is to be gauged largely by the circumstances of the particular case. It would cover and excuse a larger variation in a description of farm lands for instance than of more valuable lands in the city. Most frequently perhaps its use is to adjust a course or a prescribed distance to the location of a controlling monument or boundary. We do not think that it would cover any such discrepancy in the description in the binder as would be necessary to adjust the latter to the actual location of the cement. But even if we should escape the difficulties for plaintiff caused by the statement of the distance from Berry street of the parcel described in the binder there would remain other difficulties which seem to us insuperable. The parcel is described as located on North 13th Street ” and running about 175 feet on N. 13th and 80 feet deep” This description means a parcel of land 80 feet deep from the boundary of North Thirteenth street, there being no qualifying word about ” and this depth, as we understand the descriptions, would not come within a considerable distance of the place where was actually located the cement. Neither do we overlook the claim made in behalf of plaintiff that án inconsistent line of description may be dropped out and disregarded where there is a complete description of a parcel of land without it. That rule is not applicable here. The description in the binder of the parcel as being 250 feet west of Berry street is quite essential to the location and complete description of the premises intended to be bound by it.

The provisions of the New York Standard Fire Insurance policy of which we may take judicial notice provide that the insurer insures against damage by fire to the property described in the policy “ while located and contained as described herein * * * but not elsewhere.” The description is a warranty, the truth of which is a condition precedent to any liability on the part of the insurer. (Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240; Bahr v. Nat. Fire Ins. Co., 80 Hun, 309; London Assurance Corp. v. Thompson, 170 N. Y. 94.) Thus on the evidence now presented it appears to us, subject to the consideration hereafter of certain claims made by plaintiff, that in the misdescription of the location of the insured property inserted by it in the binder proffered to defendant’s representatives, the plaintiff was guilty of a breach of Warranty which prevents it from recovering.

In this connection it may also be stated that it was error to receive in evidence the lease made to plaintiff of certain premises and whereby apparently plaintiff intended to identify the parcel described in the binder with the one on which was actually located the cement. The description in this lease was of a one story shed on North 13th Street on the north side of said street beginning about 250 feet west of Berry Street,” etc. The description in the binder in our opinion was free from ambiguity. It was not of a shed but of a parcel of land and there was no justification for the attempt to show by a reference to the shed mentioned in the lease to plaintiff that the description in the binder covered some other parcel of land than it did.

Likewise, defendant’s objection was well made to that part of the charge which in effect instructed the jury that plaintiff’s alleged misrepresentation that the cement was located in the open ” when as a matter of fact it was stored in a shed, would not be a defense to this action unless such misrepresentation was knowingly and intentionally made. Independent of the fact that the policy contained an express provision that it should be “ void if the insured has concealed or misrepresented any material fact or circumstances concerning this insurance or the subject thereof ” the trial justice confused the general rules applicable to a plaintiff seeking to recover damages at law for fraudulent misrepresentation and those applicable to a defendant who sets up the defense, to an action to hold him liable on a contract that such contract was procured by material misrepresentations. In the former case it is true as stated by the justice that the plaintiff must establish that the alleged misrepresentations were not only false but were known to be so by those making them and that they were made for purposes of deceit. (Reno v. Bull, 226 N. Y. 546.) That, however, is not the rule in the second class of cases referred to. The defense there set up is in its. nature an equitable one and a party who is defending is entitled to succeed under the same rule that would be applicable if he were seeking as plaintiff to procure a rescission of a contract by reason of false representations. In either case all that is necessary to be shown is that the contract being invoked against him was induced by representations which were false and material and upon which reliance was placed in executing the contract. We know of no difference between actions on fire insurance policies and life insurance policies in this respect. (Armour v. Transatlantic Fire Ins. Co., 90 N. Y. 450; Leary v. Geller, 224 N. Y. 56; E. D. P. Dye Works v. Travelers Ins. Co., 234 N. Y. 441; Sparer v. Travelers Ins. Co., 185 App. Div. 861, and cases there cited.)

It seems to be urged in reply to the defenses predicated upon misdescription of the location of the insured property and misstatement of its location in an open yard rather than in a shed that defendant had maps of this neighborhood and that by use of such maps coupled with personal investigation it might have discovered the true location of the insured property and that because it might have done this and did not do it plaintiff is relieved of any unfavorable consequences of what was erroneously placed in its binder and inaccurately stated by its agent. The underlying thought in this argument seems to be that there is no reason for a rule charging an applicant for insurance with the ordinary consequences of misrepresentation if the insurer has the means of ascertaining that such misrepresentation has been made.

In the first place it appears that some one of defendant’s agents did make an examination of insurance maps in connection with the binder proposed by plaintiff, but of course such examination did not. disclose that the description of location given in the binder was incorrect and it was in an attempt to discover, as alleged, more about the actual location of the cement that the misrepresentation was made that it was in the open yard. But aside from this answer we know of no novel or exceptional rule which covers the subject of misrepresentation in the case of insurance policies and so far as We are aware it has never been held by any authority of substantial weight that a person making a material misrepresentation in an application for insurance will be relieved from the consequences thereof if he can show that the other party by the exercise of sufficient diligence and pains might have discovered the inaccuracy of the representation. Undoubtedly many cases can be found where it has been held that a party who knew or was chargeable with knowledge of the facts would not be allowed to defend against his contract on the ground that he had been misled by a misrepresentation of facts so within his knowledge. Such is the effect of the case of O’Rourke v. Hancock Mut. Life Ins. Co. (23 R. I. 457), relied on by the plaintiff. But the general rule applicable to this case that an applicant for insurance cannot be relieved from a misrepresentation on the ground that the insurer might have discovered its falsity is sufficiently stated in Sanders v. Cooper (115 N. Y. 279).

For all of these reasons the judgments should be reversed and a new trial granted, with costs to abide event.

Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Warren L. Sausser, Appellant, against Department of Health of the City of New York, Respondent.
    New York city — department of health — permit to conduct X-ray laboratory — limited permit to take radiographs may not be arbitrarily denied because applicant proposes to read and explain pictures — mere reading and explaining of pictures do not constitute diagnosis or treatment of disease.
    Under the provisions of section 107 of the Sanitary Code of the city of New York which provides that an X-ray laboratory may be conducted by any “ other person whose knowledge, experience and qualifications to operate and use an X-ray machine are satisfactory to the Health Department,” the department may not arbitrarily reject the application of a concededly experienced and skilled X-ray photographer for a limited permit to take radiographs, on the theory that he proposes to explain what the pictures show and consequently to diagnose and treat disease. The mere reading and explaining of an X-ray photograph do not constitute diagnosis or treatment.

      Matter of Sausser v. Dept, of Health, 212 App. Div. 872, reversed.
    (Argued November 24, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 27, 1925, which affirmed an order of Special Term denying a motion for an alternative order of mandamus to compel the department of health of New York city to issue to petitioner a permit to maintain an X-ray laboratory in that city.

      Clarence S. Nettles for appellant.
    The action of the department of health in denying appellant’s application for a permit to operate and maintain an X-ray laboratory was arbitrary, capricious and unreasonable, and an abuse of the discretion with which :t is invested. (Crowley v. Christensen, 137 U. S. 86; People ex rel. Lodes v. Department of Health, 189 N. Y. 187; People ex rel. E. C. T. Club v. State Racing Commission, 190 N. Y. 31.)

      George P. Nicholson, Corporation Counsel (John F. O’Brien, Willard S. Allen and Russell Lord Tarbox of counsel), for respondent.
    The refusal of a permit to appellant by the board of health constitutes an exercise of honest discretion and the courts below must be deemed to have so determined. (Ellis-Joslyn Pub. Co. v. Common Council, 223 N. Y. 445; People ex rel. Agnis & K., Inc., v. Bd. of Health, 197 App. Div. 562.) Since appellant does not possess a clear legal right to a permit, the board of health was empowered to exercise its administrative discretion for the purpose of appraising his credibility and to refuse to issue a permit. (People ex rel. Millard v. Chapin, 104 N. Y. 96; People ex rel. Harris v. Comrs. Land Office, 149 N. Y. 26 )
   Hiscock, Ch. J.

The petitioner became the proprietor of an X-ray laboratory which he desired to operate in the city of New York. Section 107 of the Sanitary Code of that city provided: “No person shall maintain, operate or conduct an X-ray laboratory * * * wherein radio-graphs are taken, diagnoses made or human beings examined or treated by X-rays, without a permit therefor issued by the Board of Health, or otherwise than in accordance with the terms of said permit and with the regulations of the said Board.” Supplementary to this section the board adopted a regulation providing: “ Every X-ray laboratory shall at all times be in charge and under the direction of a duly licensed physician or other person whose knowledge, experience and qualifications to operate and use an X-ray machine are satisfactory to the Health Department.” It will be noted that these regulations provide for the operation of an X-ray laboratory for the purpose (1) of taking radiographs, or (2) making diagnoses, or (3) examining and treating persons by X-rays; also that such laboratory need not be under the management of a duly licensed physician but may be conducted by any “ other person whose knowledge, experience and qualifications to operate and use an X-ray machine are satisfactory to the Health Department.”

Petitioner made an application for a permit under these regulations to enable him to conduct a laboratory. His petition in effect states that the only operations which he desires to conduct are those of taking radiographs and not at all those of making diagnoses or treating patients and his formal application filed with the health department sustains this claim. The correspondence with the department of health on his original application for a permit and the affidavits filed in opposition to this application for an order of mandamus make it plain, as I think, that the department of health and the courts have proceeded on an entirely different and inapplicable theory in denying his application. This correspondence and these affidavits concede petitioner’s experience and skill as an X-ray operator. They could not well do otherwise in view of the facts set out in his petition. They assume, however, that the petitioner proposes to diagnose and treat diseases of the spine; that his status as a chiropractor is not recognized as giving him any standing in the medical profession or any qualifications for diagnosing and treating diseases and that, therefore, his application should be denied.

As I have said this theory and view seem to-be entirely inapplicable as a reason for denying the permit which petitioner desired. He did not propose to diagnose or treat, but only to take X-ray pictures and explain what those pictures show in the way of obvious physical conditions of the spine and which pictures would then be used if at all by some other person in connection with diagnosis and treatment. Certainly taking an X-ray photograph is not diagnosis or treatment nor do I think that mere explanation of what that photograph shows is diagnosis or treatment. An X-ray photograph would not show much to an ignorant and inexperienced eye. To one who is skillful and has understanding it would show a certain location or external condition of the spine, for instance, and I do not think that the explanation of what was thus shown would go beyond the limits of X-ray photography any more than the explanation of what appeared to be a blotch or shadow upon an ordinary photograph would go beyond the limits of ordinary photography. It may be conceded that the reading of an X-ray photograph would be a slight and necessary step in diagnosis and treatment but it would fall far short of what we understand by those terms which comprehend not only knowledge of a certain condition such as would be shown by the X-ray photograph but, beyond that, medical or surgical consideration of what may have caused the condition presented to the eye and of the treatment which ought to be given to it.

It rather seems to be the case that the authorities and the courts have so concentrated their vision upon the fact that the petitioner is a chiropractor of unrecognized standing in the medical profession that they have inadvertently overlooked the other fact that he is not urging his right to a limited permit because he is a chiropractor but simply because he is a concededly experienced and skilled X-ray photographer and, therefore, qualified as that other person mentioned in the Sanitary Code to take radiographs. The respondent could not arbitrarily reject his application. (Matter of Picone v. Comr. of Licenses, 241 N. Y. 157.)

There being no question that the petitioner was entitled to have his application for a permit to operate a laboratory for the purpose • of taking and reading X-ray photographs granted, and there being no dispute about the remaining facts and no demand by defendant or necessity for an alternative order, the orders appealed from should be reversed, with costs in all courts and an order made directing the issue of such permit, with ten dollars costs.

Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Orders reversed, etc.


author: Pound, J.

text:
    In the Matter of the Claim of Leonora Shearer et al., Respondents, against The Niagara Falls Power Company, Appellant. State Industrial Board, Respondent.
    Workmen’s Compensation Law- — master and servant — intoxication — . trial — practice — material controverted questions in compensation cases should be disposed of by specific finding — burden on employer of showing that intoxication of employee was sole cause of injury — • presumption in favor of employee — shift of burden to claimant — Board should make specific finding where question becomes material — if workman was drunk at place where if he fell he would probably be killed and if he fell owing to his drunkenness compensation should be denied.
    1. The issues in compensation cases, although informally joined, should be disposed of by the State Industrial Board by a determination on all material controverted questions.
    2. Where a structural ironworker of many years’ experience, while walking a span fourteen inches wide, forty feet above the ground, fell and was killed, if the employer seeks to establish that intoxication was the sole cause of the accident the burden is upon him to offer substantial evidence from which reasonable persons would reasonably draw the inference that the employee was drunk at the time of the accident and that he fell owing to his drunkenness and was injured or killed. The duty of going on with the ease then shifts to the claimant, the presumption in favor of the employee (Workmen’s Compensation Law, § 21) has been overcome and the question of cause of injury is one for the Board to decide on all the evidence in the case. The ultimate burden is on the employer to establish his defense.
    3. The Board should make a specific finding whenever the question becomes material, and if it reaches the conclusion, on the evidence, that the workman was drunk at a place where if he fell he would probably be killed and that he fell owing to his drunkenness compensation should be denied.

      Shearer v. Niagara Falls Power Co., 213 App. Div. 844, reversed.
    (Argued January 12, 1926;
    decided January 19, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 30, 1925, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law.

      Clarence R. Runals for appellant.
    The evidence that the accident resulting in the death of William A. Shearer was solely occasioned by his intoxication is undisputed. (Minerly v. Kingsbury Construction Co., 191 App. Div. 618; Matter of Hansen v. Turner Construction Co., 224 N. Y. 331; Trouton v. Sheehy Ice Co., 187 App. Div. 818; Minerly v. Kingsbury Construction Co., 119 App. Div. 618; Matter of Belcher v. Carthage Machine Co., 224 N. Y. 326; Matter of Lorchitsky v. Gotham Folding Box Co., 230 N. Y. 8.)

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondents.
    There is a presumption that the injury did not result from the intoxication of the employee. (Sorge v. Aldebaram Co., 171 App. Div. 959; 218 N. Y. 636; Burns v. Products Mfg. Co., 181 App. Div. 910; 223 N. Y. 684; Richards v. New York Air Brake Co., 190 App. Div. 78.)
   Pound, J.

The State Industrial Board has found, and the Appellate Division has unanimously affirmed the decision, that “ on June 8, 1923, while the said Wm. A. Shearer was engaged in the regular course of his employment, and while working for his employer, at his employer’s plant at Buffalo Avenue Bridge, Niagara Falls, New York, where the same passes over the hydraulic canal, and while engaged in taking down a bridge thereat, and while up on said bridge on a girder, he lost his balance and in so doing he fell, and on his way down struck a scaffolding and then fell into the water, and he thereupon sustained injuries from which he died almost instantly; his death being the direct result of the injuries which he sustained on the 8th day of June, 1923.”

This, with the further finding that the injuries arose out of and in the course of the employment would ordinarily sustain the conclusion of law that the claim comes within the provisions of the Workmen’s Compensation Law (Cons. Laws, ch. 67). The issues in compensation cases, although informally joined, should, however, be' disposed of by the Board by a determination on all material controverted questions.

Evidence was offered that Shearer was intoxicated at the time of the accident. The referee said that the evidence in the case proves without a question that he was intoxicated. He reported that intoxication was not the sole cause of the accident. The question of intoxication as the sole cause of injury was, therefore, material but the Board made no specific finding on the point.

New York Constitution (Art. 1, § 19) excepts from the general grant of power to the Legislature to pass workmen’s compensation laws all cases “ where the injury results solely from the intoxication of the injured employee while on duty.” The Workmen’s Compensation Law (§ 10) contains the same exception. It also provides (§ 21) that it shall be presumed in the absence of substantial evidence to the contrary “ that the injury did not result solely from the intoxication of the injured employee while on duty.”

Obviously a structural iron worker, even of many years’ experience, might fall while walking a span fourteen inches wide, forty feet above the ground, but such workers usually maintain their equilibrium even at more dizzy heights. If the employer seeks to establish that intoxication was the sole cause of the accident the burden is upon him to offer substantial evidence from which reasonable persons would reasonably draw the inference (a) that the employee was drunk at the time of the accident; (b) that he fell owing to his drunkenness and was injured or killed. The duty of going on with the case then shifts to the claimant; the presumption in favor of the employee has been overcome and the question of cause of injury is one for the Board to decide on all the evidence in the case. The ultimate burden is on the employer to establish his defense. The Board should make a specific finding whenever the question becomes material.

A few words as to the meaning of the statute may be helpful in this connection; The People and the Legislature have indicated their purpose not to burden industry with the duty of compensating injured employees where it appears by substantial evidence that the intoxicated employee would not have been injured if he had been in possession of his normal faculties and no contributing cause appears. Doubtless many cases may be suggested where intoxication has little or no relation to the injury; where the sober and drunk are alike exposed to the risk. The greater the added danger from intoxication, the greater the duty to keep sober. If, in a perfectly safe place, the employee falls because he is drunk and injures himself, it is clear that the injury results solely from the intoxication, but it would be unreasonable to deny compensation only in such cases. Here death was due to the fall from the bridge girder, but if the fall was due solely to the intoxication of the employee the case does not come under the act. Without concerning ourselves with the proper conclusion to be reached on the facts in this case we may state the rule of law as follows: If the Board reaches the conclusion on the evidence that Shearer was drunk at a place where if he fell he would probably be killed and that he fell owing to his drunkenness, compensation should be denied.

The award of the State Industrial Board and order of the Appellate Division should be reversed, with costs to abide event, and proceeding remitted to the State Industrial Board to make a finding on the question, Did the death of Shearer result solely from his intoxication while on duty?

His cock, Ch. J., McLaughlin, Crane, Andrews, and Lehman, JJ., concur; Cardozo, J., not voting.

Ordered accordingly.


author:
Hiscock, Ch. J.
      Crane, J. Lehman, J.

text:
    Fannie Mirizio, by Mary C. Mucci, Her Guardian ad Litem, Appellant, v. Cosmo Mirizio, Respondent.
    Husband and wife — separation — abandonment — wife who without adequate excuse refuses to have ordinary marriage relations with husband cannot maintain action against him for abandonment and to compel support — failure of husband to keep promise to follow civil marriage by religious ceremony no excuse for repudiation of marriage contract — parties to lawful marriage contract may not modify its effect by private agreement between themselves.
    1. A wife who lives apart from her husband because she is unwilling to live with him in the ordinary relationship of husband and wife cannot maintain an action against him for abandonment and to compel his support of her. The refusal of husband or wife without any adequate excuse to have ordinary marriage relations with the other party to the contract strikes at the basic obligations springing from the marriage contract and amounts to legal misconduct which, under the provisions of section 1163 of the Civil Practice Act, is a defense to an action to enforce such obligations. (Williams v. Williams, .130 N. Y. 193; Bohmert v. Bohmert, 241 N. Y. 446, followed; Risk v. Risk, 202 App. Div. 299, overruled.)
    2. Nor is such conduct by a wife, married by a civil ceremony, relieved of the feature of willful and inexcusable repudiation of her marriage contract by an agreement which was made between her and her husband that such contract should not be consummated until a religious ceremony was performed, and the fact that though the wife was willing to have the ceremony performed and then consummate the marriage, the husband refused. This State as a matter of long-continued policy, has fixed the status of the marriage contract as a civil contract which when once executed becomes binding and carries with it certain rights, duties and obligations and the parties to such a contract lawfully and completely entered into may not modify its effect, postpone its consummation and lessen its undoubted and fundamental obligations by private agreements between themselves.
    3. Authorities on the question whether a willful refusal of one party to a marriage contract to submit to ordinary marital physical relations with the other by and of itself amounts to a matrimonial desertion or abandonment collated and discussed.

      Mirizio v. Mirizio, 212 App. Div. 524, affirmed.
    (Argued October 29, 1925;
    decided January 22, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court' in the first judicial department, entered May 15, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.

      John McCormick and Charles F. Rudershausen for appellant.
    The refusal of the court to find that the defendant had abandoned his wife is error. (Ullmann v. Ullmann, 17 Abb. N. C. 236; Williams v. Williams, 130 N. Y. 193; Dunn v. Dunn, 4 Paige, 425.) The defendant has proved no acts on the part of the plaintiff which justifies his refusal to support and his abandonment of the plaintiff. (Brinckley v. Brinckley, 50 N. Y. 185; Hawkins v. Hawkins, 193 N. Y. 409; Doe v. Doe, 23 Hun, 19; Barber v. Barber, 168 App. Div. 211; Dies v. Winne, 7 Wend. 47; Risk v. Risk, 202 App. Div. 299; Southwick v. Southwick, 97 Mass. 327; Franklin v. Franklin, 154 Mass. 515; Watson v. Watson, 52 N. J. Eq. 467; Cowles v. Cowles, 112 Mass. 298; Cousen v. Cousen, 4 Swab. & Tris. 164; Orme v. Ome, 2 Add. Ec. 823.)

      John J: Ryan and Matilda Spitzer for respondent.
    A denial by a wife, in good health, of the right of intercourse to a husband, in good health, constitutes legal desertion, and as such is a valid defense to an action for separate maintenance. (Waldhorn v. Waldhorn, 165 Mich. 130; Nordlund v. Nordlund, 97 Wash. 475; Franklin v. Franklin, 154 Mass. 515; Borden v. Borden, 166 Cal. 469; Lewis v. Lewis, 167 Cal. 732; Compton v. Compton, 204 Ill. App. 629; MacGrath v. MacGrath, 103 Mass. 577; Ringgold v. Ringgold, 128 Va. 485; Fleegle v. Fleegle, 136 Md. 630; Parmly v. Parmly, 90 N. J. Eq. 490; Baker v. Baker, 99 Ore. 213; Chandler v. Chandler, 132 Va. 418.) The agreement claimed by the plaintiff to have been made by her with the defendant, to the effect that if she married him in September, they would not live together until Christmas, when a religious ceremony would be performed, is void. (Blaechinks v. Blaechinks, 130 N. Y. 497.)
   Hiscock, Ch. J.

This action is brought under the provisions of section 1162 of the Civil Practice Act, alleging that the defendant as plaintiff's husband has abandoned and refused to support her and demanding judgment of separation with provision for support. ' The defense which thus far has been sustained is that the plaintiff has refused to live with the defendant and discharge her marital obligations and that, therefore, he has been relieved from any duty of support. There is little dispute of fact. Plaintiff and defendant were united in marriage by a civil ceremony but they were observers of the Catholic religion and, therefore, entered into an agreement that they would not live together or consummate the marriage until performance of a religious ceremony. The plaintiff has been willing and ready to have this ceremony performed and then consummate the marriage but defendant has refused to do this and, under these circumstances, the former has never lived with her husband. Possibly the findings and uncontradicted evidence might be interpreted as supporting the conclusion that the plaintiff has been unwilling to occupy in any respect the status of a wife and live under the same roof with the defendant in the absence of this religious ceremony. But probably the fairer interpretation is that in plaintiff’s mind sexual relationship with her husband will be the natural and necessary incident to living in the same home with him and that because she is conscientiously and religiously opposed to such relationship she elects to live entirely separate and apart from him unless and until the promised religious ceremony is performed when she would be willing to live with him. There is no doubt that she is governed by conscientious and religious scruples and, therefore, we are presented with the question whether a wife who from such scruples and under such circumstances and without any other reason whatever refuses to submit to ordinary marital relations with her husband can accuse him of abandonment and compel his support of her. There has been, it is true, some query whether the defendant has ever made a demand on the plaintiff that she live with bim and submit to these relations, but I do not regard that as of any importance in our consideration of the case. Concededly the plaintiff is utterly and permanently unwilling to submit to sexual relations with her husband unless a religious ceremony is performed. That has been her attitude in the past; that is her unyielding attitude now, and with that understanding the mere circumstances of a formal and futile request on his part that she live with him in the full relationship of a wife would not add at all to the actual situation as portrayed by the findings and evidence. I shall first discuss the effect of this attitude on her part without any reference to the agreement for a religious ceremony made between the parties and then that agreement.

The question whether a willful refusal of one party to a marriage contract to submit to ordinary marital physical relations with the other by and of itself amounts to a matrimonial desertion or abandonment has been the subject of widespread and long-continued debate with conflicting decisions. In England it has been held that it does not (Jackson v. Jackson, [1924] Probate Div. 19) and this view has been adopted in several of our State jurisdictions. (Southwick v. Southwick, 97 Mass. 327; Prall v. Prall, 58 Fla. 496; Fritz v. Fritz, 138 Ill. 436; Lambert v. Lambert, 165 Iowa, 367; Stewart v. Stewart, 78 Me. 548; Segelbaum v. Segelbaum, 39 Minn. 258; Cunningham v. Cunningham, 60 Penn. Sup. Ct. 622; Pratt v. Pratt, 75 Vt. 432; Schoessow v. Schoessow, 83 Wis. 553; Albert v. Albert, 137 Va. 1.)

In several of these cases, however, the decision was largely based on the peculiar wording of the statute relating to desertion. For instance in Iowa and Illinois the statute provides for willful desertion and the courts in those States held that in order to meet that provision there must be actual withdrawal from all marital relations and not repudiation merely of one. In Florida it is held that refusal of such marital intercourse does not of itself amount to “ wilful, obstinate and continued desertion ” and in Maine that such refusal does not amount to utter desertion ” and in other States (Wisconsin and Vermont) that such refusal does not constitute cruel and inhuman treatment or willful desertion, and in Pennsylvania the peculiar wording of the statute is controlling. In Southwick v. Southwick (supra) the decision again was largely based upon the peculiar wording of the Massachusetts statute, which, as originally enacted, provided that desertion would only arise when the guilty party had utterly ” deserted the other and it was held that although in later statutes the word “ utterly ” has been eliminated there was no intention to change the requirements of evidence necessary to establish desertion. The court also apparently was influenced by the early English view that such refusal did not constitute desertion, although such view largely rested upon the fact that the remedy for desertion was a suit for a decree of restitution of conjugal rights and, enforcement of such rights not being possible in respect of sexual relations, the court would not regard such refusal as desertion. The full doctrine adopted in the Southwick case seems to have been questioned in the later case of Anders v. Anders (224 Mass. 438).

The contrary view that refusal to submit to such marital relationship doe 5 amount to desertion or abandonment has been held in the following jurisdictions: Hayes v. Hayes (144 Cal. 625); Stein v. Stein (5 Colo. 55); Whitfield v. Whitfield (89 Ga. 471); Axton v. Axton (182 Ky. 286); Fleegle v. Fleegle (136 Md. 630); Campbell v. Campbell (149 Mich. 147); Graves v. Graves (88 Miss. 677); Brown v. Brown (100 Atl. Rep. [N. H.] 604); Parmly v. Parmly (90 N. J. Eq. 490); Wood v. Wood (128 Atl. Rep. [N. J.] 418); Perine v. Perine (114 S. E. Rep. [W. Va.] 871); Schoren v. Schoren (214 Pac. Rep. [Ore.] 885).

A similar view has been taken by eminent text writers (1 Bishop on Marriage, Divorce & Separation, §§ 1676, et seq.; 1 Nelson on Divorce & Separation, §§ 54, 71. See, also, interesting note on this subject, Cornell Law Quarterly, April, 1925, p. 374.) Three States, California, Georgia and South Dakota, have gone so far as to make willful refusal to submit to such relations a statutory cause for divorce.

The question has never been decided by this court. In Heermance v. James (47 Barb. 120) the foundation was laid tor holding that such refusal, without other circumstances, would amount to a desertion for it was there held that there might be desertion in the eyes of the law by one spouse of the other even though they continued to live under the same‘roof.

Perhaps it may fairly be said that the prevailing tendency in courts of this country is toward the view that refusal of this marital relationship is such a breach of obligations as to amount to a desertion or abandonment. But we are not compelled to decide that question in its full scope in the present case. The defendant is not bringing suit for abandonment because of the conduct of his wife which has been described; he is setting up her conduct as a defense to the suit which she is bringing against him for abandonment and, therefore, the question is, disregarding for the moment the agreement to which we have referred, whether a wife who lives apart from her husband because she is unwilling to live with him in the ordinary relationship of husband and wife can maintain an action against him for abandonment and to compel his support of her. It is not a matter of affirmative relief to him because of such refusal but of utilization of such refusal as a defense against the attempt of the wife to secure benefits under the matrimonial contract. If we keep this aspect of the case in mind it is, in my opinion, an answer to much that is said concerning the failure of the husband to request the plaintiff to return to him, concerning his failure to offer to provide a home for her, and concerning inadvisability of allowing a husband to procure a divorce because his wife refuses to live with him in the ordinary relationship of a wife. The wife is the one who is asserting a right and seeking affirmative relief and the burden rests upon her, before she can demand benefits under the marriage contract, of showing that she is willing to discharge her obligations under it.

Of course, we recognize that marriage while a civil contract is, from its very nature, exempt from some of the considerations which might apply to an ordinary contract for the purchase and sale of property and, therefore, a party would not be held to violate his contract and to abandon his spouse for some inconsequential dereliction of duty which might effect a repudiation of an ordinary contract. But the refusal of husband or wife without any adequate excuse to have ordinary marriage relations with the other party to the contract strikes at the basic obligations springing from the marriage contract when viewed from the standpoint of the State and of society at large. However much this relationship may be debased at times it nevertheless is the foundation upon which must rest the perpetuation of society and civilization. If it is not to be maintained we have the alternatives either of no children or of illegitimate children, and the State abhors either result. The mere fact that the law provides that physical incapacity for sexual relationship shall be ground for annulling a marriage is of itself a sufficient indication of the public policy that such relationship shall exist with the result and for the purpose of begetting offspring.

Therefore, in this case, we have the situation that one party while violating what must be regarded as a fundamental obligation of the marriage contract is endeavoring to compel the other party to that contract to live up to its obligations. Certainly this attitude of seeking to grasp the benefits of a contract with one hand while the party pushes away its duties and obligations with the other one cannot be sustained by any principles applicable to ordinary contracts. It cannot be upheld in the case of a marriage contract. The case, in my opinion, comes within the reasoning of Williams v. Williams (130 N. Y. 193). There it was held that a husband who had driven his wife away from him by harsh and unreasonable conduct would not be allowed to maintain an action for abandonment, and in this case the wife who refuses to discharge her obligations to her husband cannot be heard to find fault because she is reaping the natural results of her conduct.

The case also in my opinion comes within the principles upheld in Bohmert v. Bohmert (241 N. Y. 446). That action dealt with the case of a wife who was seeking to compel her husband to support her after she had deserted him and it turned largely on the question whether she had avoided the effects of her desertion by displaying a proper willingness to return to her husband. The principle underlying the entire discussion was that a wife who left her husband, even though she may have been moved thereto by his unreasonable conduct, was compelled to show a willingness to return to him before she could exact support from him under the marriage contract which she had violated. Substantially the same principle is- involved here. This plaintiff has refused to discharge her obligations under the marriage contract and without abating a particle from that attitude she now insists that the defendant must support her, and it is by the test of those circumstances that her right to succeed must be measured. Tested in that manner her position amounts to legal misconduct which, under the provisions of section 1163 of the Civil Practice Act, is a defense to her action to enforce such obligations. (Hawkins v. Hawkins, 193 N. Y. 409, 417; Deisler v. Deisler, 59 App. Div. 207.)

Of course we do not overlook the fact that in Risk v. Risk (202 App. Div. 299), by a closely divided court, it was held that the willful refusal of marital intercourse without withdrawal of general cohabitation did not either constitute abandonment or furnish a defense to the husband who, because of such refusal, refused to support his wife. Under the circumstances of this case and for the reasons stated we are not able to adopt the views expressed by the court in that case.

This leaves for consideration only the question whether plaintiff’s conduct is relieved of the feature of willful and inexcusable repudiation of her marriage contract by the agreement which was made between her and her husband that such contract should not be consummated until a religious ceremony was performed. There is no opportunity for uncertainty about the scope and definiteness of this agreement, for the plaintiff herself testified that the arrangement between her and her husband was I should live with my people, he should live with his people, until we go through the religious ceremony ” and that agreement modifying the marriage contract is the one upon which the plaintiff now relies as an excuse for refusing to carry out her marital obligations. The plaintiff’s plight naturally excites sympathy. No one questions that she is actuated by thoroughly conscientious scruples ana principles and so far as the evidence and findings disclose there is nothing to be said in commendation of the repudiation of their agreement by the defendant. And, of course, as is suggested, our law should not be unnecessarily construed in a manner which will be hostile to religion in family life or to any other of those principles of moral, ethical and considerate conduct which ought to govern the marriage relationship. But those, in my opinion, are in no sense the considerations which are before us in this case. Our State as a matter of long-continued policy, by many statutes and innumerable decisions has fixed the status of the marriage contract as a civil contract which when once executed becomes binding and carries with it certain rights, duties and obligations and the real question presented to us in this case is whether the parties to such a contract lawfully and completely entered into may modify its effect, postpone its consummation and lessen its undoubted and fundamental obligations by private agreements between themselves. In this particular case the private agreement embodies religious observances and from that standpoint is of high order. In the next case the agreement may be based on less meritorious and more selfish considerations and it requires no fertile vision to see where we may be led if the views now being urged shall prevail, that the parties by private agreement may permanently annul or indefinitely postpone the obligations which they assume when they enter into the marriage contract and defeat the policy of the State and the views which have so long and definitely prevailed in a right-minded society. In my opinion such a course as it is now suggested we ought to set out upon of recognizing modifications of the marriage contract by private agreement would lead to disruption of that contract and disaster in the attempt to enforce it. The danger always is that a court may be led by what seem in some particular case to be equitable considerations into adopting some principle which when carried to subsequent and logical application to other facts leads to results which are unfortunate and unjust.

This plaintiff with her religious scruples concerning the consummation of a marriage contract had the situation in her own control. She was not obliged to submit to a civil marriage and then rely upon her husband to carry out a religious ceremony which would satisfy her scruples. I find no evidence that he unduly persuaded or misled her into this course. She could have had a religious ceremony first and thus avoided either discomfort to herself or impairment of her marriage contract. And while she has been drawn into an unfortunate situation by what seems to be the failure of her husband to keep his promise, her agreement in my opinion furnishes no just reason for allowing her in violation of all contractual considerations to compel enforcement of a contract which she, for inadequate legal reasons, refuses to observe. Public policy in such a vital matter as the marriage contract should not be made to yield to subversive private agreements and personal considerations. The State itself has unmistakably given expression to this view. While section 51 of the Domestic Relations Law (Cons. Laws, ch. 14) in providing that the husband and wife cannot contract to alter or dissolve the marriage refers to an agreement after the marriage has been contracted, of course its plain purpose and principle would be violated by allowing parties to make such an agreement for the purpose of altering the marriage contract just as it was being entered into.

For these reasons I think the judgment should be affirmed, without costs.

Crane, J.

(dissenting). The plaintiff and the defendant were married in the borough and county of The Bronx, city and State of New York, on the third day of September, 1921. The marriage ceremony was performed by the civil authorities. The parties are man and wife under the law of this State and the obligations arising therefrom are as binding at law as if the ceremony were performed according to some religious rite.

The parties have never lived together because the defendant has failed and refused to provide a home for his wife. This action is for support and maintenance. The wife so far has lost.

The defendant admits in his testimony in this case that he has never offered a home to the plaintiff or provided her with one. He apparently has an idea, and this case has proceeded upon the theory, that because the wife refused to have intercourse with him the marriage has never been consummated and he is not obliged to provide for her. Such is not the law. The refusal by the wife of marital intercourse is not sufficient to justify the husband in abandoning her and does not constitute abandonment on the part of the wife. (Risk v. Risk, 202 App. Div. 299; Franklin v. Franklin, 154 Mass. 515; Anonymous, 52 N. J. Eq. 349; Cunningham v. Cunningham, 60 Penn. Super. Ct. 622; Stewart v. Stewart, 78 Me. 548; Fritz v. Fritz, 138 Ill. 436.) The cases in the various States are fully reviewed in the Risk case.

There would be no end of litigation if the intimate relations between husband and wife regarding what have been termed “ marital rights ” were the subject of inquiry. Sickness, insanity and temperament have often deprived men of these privileges, and yet they have met bravely the obligations to support the woman whom they have chosen for a wife. Refusal' to have intercourse or inability to have it, except where it is due to some malformation making it physically impossible, is no ground for divorce and no defense to an action for support in this State, A different idea has evidently been in the minds of the defendant and his counsel. In the affidavits submitted on the motion for alimony and counsel fee which form a part of this record, the defendant states: The sole tie that exists between the parties is the marriage ceremony at Borough Hall.” (This sole ” tie is the only one the law requires.) “ Deponent here admits that he has not supported his wife since July of this year, and declines the same on the ground that she has refused to be a wife to him. The plaintiff cannot succeed in this action, unless she shows that she is willing to live with defendant as husband and wife.”

What the defendant here means is that the plaintiff refused to cohabit with him as his wife. He does not mean that she will not live with him in a home to be provided for her and take care of him and consort with him as his wife, otherwise. He has refused from the beginning to provide a home for her, or to support her until she consents to cohabit with him.

She desires a religious ceremony before giving this consent. With that we have nothing whatever to do. What may move her consicence is none of our concern. She is the defendant’s wife; he is bound to support her, to provide her with a home or give her the means to live. If she refuse to live with him, he need not support her. If she consent to live with him and does live with him and perform her duties faithfully as a wife otherwise, the fact that she refuses to have intercourse is no justification to the defendant in abandoning her or turning her out.

Immediately after the ceremony the defendant brought actions,— three, so the affidavits state, to annul the marriage. In this effort he failed.

The testimony on the trial, was very brief; it deals largely with what the parties have been willing or are unwilling to do. The main point contested apparently has been the unwillingness of the wife to cohabit. This, as I have stated above, is not the question in this case, except as it may bear upon her willingness or refusal to live with the defendant. She swears that she is willing to live with the defendant if he provides her a home, and that he has never given her any support or offered to provide her with a place to live. As I read this record, the defendant will not do this unless the plaintiff consents to cohabit with him. His duty is to provide a home in the first instance, and take his wife into it. After that, matters may adjust themselves. A little tact and kindness upon the part of the defendant would probably remove the necessity for appearances in court. The position of the defendant is in my judgment unreasonable and unjustifiable. That he is the plaintiff’s husband he does not deny. That he is bound to support her and provide her with a home the law makes emphatic. The defendant has failed and refused to provide this home. He tries to excuse his failure upon the ground that his wife says and declares that she will not cohabit with him. This is not a case where the man and wife are living together, and the wife so refuses after solicitation. The defendant has first failed in his duty as a husband. He justifies his failure and breakdown of all matrimonial obligations because of what his wife threatens to do. A little knowledge of womankind would be more helpful to defendant than a lawsuit. It is the proverbial privilege of women to change their minds. A little forbearance, gentleness and consideration for the feelings of others will accomplish what force will fail to do.

Besides, there is a large matter of public policy involved in a case like this. The man and wife are not the only ones interested. The public is largely concerned in this question of divorce and the dissolution of homes. Any judge who has held a Special Term in our large cities is acquainted with the large number of uncontested divorce cases, and has had the feeling that they are frequently based upon perjury. The number of divorces is a matter of public comment and criticism. While the courts must grant decrees where honest testimony brings the case within our statutes, yet at the same time they should be careful not to let down the barriers or make it easy for deception. If the law is going to permit a man to get a separation because of non-intercourse, the next step will be to permit him to obtain a dissolution of the marriage upon the same ground where it has not been consummated. This would open wide the door for the annulment of marriages where absolute divorces could not be obtained upon the statutory ground. How is the court to determine whether the wife has refused the marital privileges, if both she and her husband are desirous of dissolving the marriage and she fails to appear in his action for annulment? It appears to me that we are going very far to encourage false and fraudulent claims and practices when we permit actions for desertion or annulment on the ground of non-intercourse, and start the courts to investigate whether a woman has or has not refused to cohabit. From an academic standpoint such a law may be reasonable; from a judicial-governmental standpoint it is impractical.

In view of the way in which this case has been tried and disposed of below, the judgment and dismissal of the complaint should be reversed and a new trial should be ordered. If upon this new trial the- defendant still persists in his attitude and refuses to support his wife unless she cohabits with him, then judgment must be given in her favor, provided she is willing to live with him and perform all the other duties of a wife. If she refuses to live with him until a religious ceremony is performed, then judgment should be given for the defendant.

The judgment should be reversed, and a new trial ordered.

Lehman, J.

(dissenting). The plaintiff seeks a judgment of separation from her husband and reasonable provision for her support. Abandonment and failure to provide for her support are alleged as the basis of her prayer for relief. It is undisputed and the trial judge has found that the defendant has never supported the plaintiff, yet all relief has been denied to her and judgment dismissing the complaint on the merits has been granted and affirmed. Since under the provisions of subdivision 4 of section 1161 of the Civil Practice Act a wife may maintain an action for separation because of the neglect or refusal of the defendant to provide for her,” the judgment of dismissal on the merits seems to establish that in this case the defendant was justified in his neglect or refusal to support the plaintiff because of act or omission on her part. (Civ. Prac. Act, § 1163.)

Stipulation by the parties conclusively establishes in general outline those relations of the parties which fix their mutual rights and obligations and details are to some extent supplied by the plaintiff’s uncontradicted testimony. The courts below have drawn their conclusions of law from undisputed facts. These facts create an unusual problem.

On September 3, 1921, the parties intermarried. The ceremony was performed by the deputy city clerk at the Borough Hall of the borough of The Bronx, New York city. Both parties were Catholics and prior to the civil ceremony they agreed that a religious service should be performed in a Catholic church after Christmas and that, as testified by the plaintiff: “ I shall live with my people, he should live with his people until we go thru the religious ceremony.” The understanding that the marriage should not be consummated until the religious ceremony was performed . is undisputed. In January, 1922, the plaintiff asked the defendant to go through the promised religious ceremony. The defendant refused. It does not appear that the defendant ever asked the plaintiff to cohabit with him without a prior religious ceremony; in fact, the plaintiff testified that when the defendant refused to take part in a church ceremony, he said, he don’t care to live with me,” and it appears from the statement of fact made by the defendant’s counsel at the opening of the trial that the defendant claims that his refusal to join in a religious marriage ceremony was due to resentment because the plaintiff took the part of her brothers in a quarrel they had with the defendant. The parties as a result have never lived together as man and wife and fhe 'marriage has not been consummated. The plaintiff asserts that she is not willing to have the usual marital intercourse with her husband until the promise to have the marriage blessed by the church, to which both parties belong, has been carried out. Solely because of this unwillingness the courts have refused to compel the husband to furnish support to her.

It can hardly be doubted that if we consider the problem presented solely as a question of equity and justice to the individual parties to the action and entirely apart from the social consequences of the positions they are assuming, the result of the decision is unfortunate. The parties have entered into a valid, enforcible marriage and by reason of that marriage the obligation to support the wife is imposed by law upon the husband so long as the wife does not fail or refuse to fulfill the obligations imposed by law upon her by reason of her wifely status. The husband definitely refuses to carry out that obligation and the courts have decided that his refusal is justified by his wife’s demand that the civil marriage be followed by religious ceremony before the marriage is consummated by cohabitation. If so the justification must rest solely upon grounds of public policy; upon the view that decision sustaining the position of the wife would be in conflict with the principles that the legal obligations of the marriage contract may not be varied by private agreement and that these obligations are invariably binding despite difference of ethical or religious standards among individuals. Justification for the husband’s attitude cannot be found according to any possible standards of honesty or good faith. Concededly the wife entered into the marriage only upon the husband’s promise that their union should receive the blessing of their church before the marriage should be consummated by cohabitation. When the marriage was contracted both parties contemplated that cohabitation without such blessing would be sinful. Having induced the plaintiff to enter into the marriage contract in reliance on his promise the defendant repudiates his promise. She is tied with bonds that may not be broken unless he is guilty of adultery. Of that she may not complain, for she voluntarily assumed those bonds; but she assumed those bonds intending to be a wife in fact and not in name only as soon as the religious ceremony was performed. By her husband’s promise to join in such ceremony and his subsequent repudiation of his promise, he has placed her in the hideous position of being legally bound to a man with whom she may not live as wife without being guilty of what in her own conscience and in the eyes of the church of which both parties are members would constitute a sin. The defendant does not even ask the plaintiff to live with him without religious ceremony. Indeed the evidence would perhaps fairly permit the inference that he too would regard cohabitation as a sin which he would be unwilling to commit. He seeks to evade his obligation to support his wife; he finds the way for such evasion in the unwillingness of his wife to cohabit with him, although such unwillingness is based upon a ground which he could remove, and which in good conscience he is bound to remove even though his promise to do so is not enforcible in law. By repudiating his moral obligation to place the plaintiff in a position where in good conscience and according to 'the tenets of her religion she could become his wife in fact, he is permitted to escape his obligation to support her. Does any rule of public policy dictate such result?

■ Though upon this question my conclusion is different from that arrived at by the majority of the court, yet it rests upon substantially the same premises. I do not understand that the majority of the court have intended at this time to decide that in effect refusal by one party to a marriage to submit to ordinary marital physical relations constitutes matrimonial - desertion or abandonment. They have decided, and I think intended to decide, only that a refusal by this plaintiff in the present case to submit to ordinary marital physical relations, resulting in a consummation of marriage, without some excuse which a 'court of law may recognize would constitute misconduct ” within the meaning of section 1163 of the Civil Practice Act. I think that view is clearly correct. Even if we should hold hereafter when the question is directly presented that a willful refusal to cohabit would not, after the marriage is consummated, constitute such misconduct, yet it seems clear that obligation at least to afford opportunity for consummation of the marriage is an essential part of the marriage contract (See Civ. Prac. Act, § 1141) and that repudiation of this obligation by the wife would justify the husband’s failure to support her. The question, however, still remains whether here there has been either repudiation of this obligation or refusal to carry it out without excuse cognizable by the courts.

At the outset, at the risk of seeming to repeat the obvious, I must point out that under section 1161 of the Civil Practice Act an action for separation may be brought for the neglect or refusal of the defendant to provide for his wife. Here the defendant never provided in any way for his wife. Section 1163 of the Civil Practice Act provides that misconduct of the plaintiff ” constitutes a defense to this action. Has there been such misconduct? If not I can see no defense. I use the word misconduct ” in a very broad sense. Perhaps there may be times when the conduct of the wife would not ordinarily be described as misconduct, yet would furnish what might reasonably be regarded as excuse for failure by the-husband to support. Whether under such circumstances we should say that the husband has been guilty of no breach of duty under section 1161 of the Civil Practice Act or that he has established a defense under section 1163 is unimportant. I use the term “ misconduct ” in a sense sufficiently broad to cover such cases; yet in all cases it must be remembered that never has there been any doubt that a husband is always bound to support his wife unless by his wife’s act or omission he has been freed temporarily or permanently from his obligation. I have pointed out that the plaintiff’s conduct which it is claimed deprives her of the right to support is the result of defendant’s wrong; that there is not even proof of any refusal by the plaintiff to carry out her marital obligation, for no request to do so has been made to her by the defendant; that in effect the defendant is permitted by his own wrong to evade his own obligation. Upon only one theory may that result be sustained, if at all, viz., that judgment in favor of the wife would be a decision that because of private agreement of the parties, or because of the tenets of their particular religion the legal obligations of their civil marriage contract need not be fully carried out.

I .accept without reservation or doubt the rule of law that the obligations of the marriage contract are fixed and may not be modified by private- agreement or the religious tenets of the parties. I agree that if a reversal of the judgment of the courts below would in the slightest degree impair the legal effect of a civil marriage or permit religious ceremony to alter or increase the legal obligation of the civil marriage, then the judgment of the courts below must be affirmed. Our public policy is upon these points fixed and must be upheld by the courts.

' In the present case the marriage performed in the Borough Hall between the parties constituted a valid marriage. From the instant it was performed all the obligations inherent in a contract of marriage were as matter of law assumed by the parties. They could have chosen to enter into such contract in the manner directed by the rules or canons of their church; they may not be heard to assert that the obligations of marriage were to attach only when subsequent ceremony should be performed by priest according to the rites of their church. They might lawfully stipulate for a subsequent blessing upon their union to satisfy their own conscience or sense of fitness; the State will recognize no force in a stipulation that until the marriage received the sanction of the church its obligations are unenforcible. The defendant as the plaintiff’s lawful husband is liable for the support of the plaintiff; the plaintiff as the defendant’s lawful wife may not reject the fundamental obligations inherent in the marriage contract, and if she does reject them the defendant is justified in refusing support. We must determine in this case whether plaintiff’s attitude constitutes such rejection.

An agreement not to consummate the marriage might well be considered as an agreement to “ alter ” the marriage forbidden both by our public policy and by the spirit if not the letter of section 51 of the Domestic Relations Law, but no agreement that the marriage shall not be consummated has been asserted here; no obligation to consummate the marriage is wholly repudiated or denied by the plaintiff. She recognized that obligation but asserts a right to postpone, until such time as the defendant will comply with his promise to perform these preliminary rites which will change sexual intercourse from an act which according to her view is morally illicit, to one which is sanctioned by the guardians of her conscience. Even in those jurisdictions where refusal of marital intercourse is regarded ordinarily as equivalent to desertion, the courts are impelled at times to consider whether reasonable, moral or psychological factors have determined such refusal. (See Parmly v. Parmly, 90 N. J. Eq. 490; also note in Cornell' Law Quarterly, April, 1925, page 374.) Marriage should constitute a bond, but rigid rules of law which decree that religious, moral and other psychological factors which determine human conduct must be disregarded in. the measurement of the performance of marital obligation will tend to make the marriage contract not a bond but a chain.

Formulation of exact rule which may be applied without difficulty to each case and which will define what constitutes sufficient justification, under varying circumstances, for refusal or neglect of a husband to provide support for his wife is impossible, yet at least it may be said that under varying circumstances the principle which always must guide the courts is that the permanence and immutability of the marriage relation must be sustained and vindicated and honest observance of its spirit must be required from both parties. Here the defendant does not even show in attempted justification that the plaintiff has ever refused to do anything he asked of her. So far as this record shows he himself may still share plaintiff’s unwillingness to cohabit or even to five in the same apartment without a religious ceremony — yet for his own purpose he refuses to go through such ceremony. The plaintiff does not refuse to perform her marital obligation. She insists only upon her husband first carrying out his solemn promise to her. Is her refusal to submit her body to him until that time a wrong to him in his marriage relation when that relation was entered with understanding by both that such submission would be a sin which he would not require of her? Is her attitude unwifely when his refusal to carry out his promise is a willful wrong to her? May he be released of his obligation of support because, as the evidence shows, he wishes to make it impossible for her to live with him or to become his wife in fact without a sense of sin which he has agreed not to put upon her? The obligations of the marriage contract are fixed by law, and disregard of obligations fixed by law may not be excused because performance is contrary to the tenets of a particular religion; yet certainly our law is not hostile to religion in family life and should not so construe obligation of the marriage contract as to compel performance of such obligation in a manner contrary to religious scruples which both parties recognized when they entered into the marriage. A determination that the husband in this case need not support his wife unless she is willing to live with him even without a religious ceremony does not result in the vindication of the validity of civil marriage or in the supremacy of its legal obligations; it results in the husband’s successful evasion of the obliga- ■ tions of his marriage by his own wrong. Certainly where both parties are agreed that without a religious ceremony cohabitation is improper, the husband who refuses to have the religious ceremony performed in accordance with his previous promise, with purpose of evading marital obligation, should not be in a position to urge that the wife’s unwillingness to cohabit without such ceremony constitutes such failure to perform her marital duties as justifies his refusal to support her. The defendant has induced the plaintiff to enter into the civil marriage relying upon his promise to join thereafter in a religious ceremony. Assuming that this promise is void the defendant still is bound in good faith as plaintiff’s husband to refrain from insisting upon the performance of a marital obligation of intercourse until the steps have been taken which both parties contemplated at the time of the marriage to relieve such performance from what they regarded as sin. Even though the defendant should offer to cohabit without the promised religious ceremony, he could not change the fact that such cohabitation would, in plaintiff’s conscience, constitute a sin, and not only is it within his power to satisfy his wife’s conscience but in good faith and because of his own acts he is bound to do so. A sense of sin is poor foundation for permanent marriage relation and a husband who demands consummation of marriage at the price of his wife’s sense of virtue, and at the same time invites refusal of his demand by willful failure to carry out conditions which induced the wife to enter into the marriage, should not be permitted to urge that refusal as justification for his own failure to support his wife.

The judgment should be reversed and a new trial ordered, with costs to appellant.

Pound, McLaughlin and Andrews, JJ., concur with Hiscock, Ch., J.; Crane and Lehman, JJ., dissent in opinion; Cardozo, J., absent.

Judgment affirmed.


author: Per Curiam.

text:
    Berthold Nagy, Respondent, v. Arcas Brass and Iron Company, Inc., Appellant.
    Arbitration — waiver — pleading — unreasonable delay in making application for arbitration may justify finding of waiver — agreement to arbitrate not properly pleaded as defense or counterclaim — when pleaded rebuts any inference that might be drawn from mere service of answer.
    1. While the interposition by one sued of an answer claiming his right to arbitrate, even if he also pleads an independent counterclaim, is not in itself sufficient to justify a refusal of relief asked for under sections 3 and 5 of the Arbitration Law (Cons. Laws, ch. 72), yet unreasonable delay in making the proper application may justify a finding of waiver. The Arbitration Law contemplates prompt action.
    2. While the agreement to arbitrate is not itself properly pleaded either as a defense or a counterclaim, when pleaded it is no less an assertion that the defendant does not intend to abandon his rights, and so rebuts any inference that would otherwise be drawn from the mere service of the answer.

      Nagy v. Areas Brass & Iron Co., 213 App. Div. 830, affirmed.
    (Argued January 14, 1926;
    decided January 22, 1926.)

      Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 13, 1925, which affirmed an order of Special Term denying a motion by defendant to direct arbitration of certain controversies pursuant to a contract to that effect.

      Robert K. Story, Jr., and John H. W. Krogmann for appellant.
    Defendant by interposing an answer containing counterclaims did not waive its right to arbitration so long as it asserted that right in its answer. (Hiltl Co., Inc., v. Bischoff, 119 Misc. Rep. 572; Matter of Hosiery Manufacturing Corp. v. Goldston, 238 N. Y. 22; 206 App. Div. 414; Matter of Bauer Co., 206 App. Div. 423; Kenvin & Glass Co., Inc., v. Huylers, 202 App. Div. 739)

      M. Milton Gewertz for respondent.
    Defendant by interposing an answer which contained a counterclaim, waived its right to arbitration, in spite of the fact that it pleaded its right to arbitration in its answer. (Matter of Zimmerman v. Cohen, 236 N. Y. 15; Hosiery Manufacturing Corp. v. Goldston, 238 N. Y. 22.)
   Per Curiam.

A party to an arbitration agreement may waive his rights thereunder. (Matter of Zimmerman v. Cohen, 236 N. Y. 15.) A refusal by him to arbitrate upon demand duly made by the other side constitutes such a waiver. So if sued, while the interposition by him of an answer claiming his right to arbitrate, even if he also pleads an independent counterclaim, is not in itself sufficient to justify a refusal of relief asked for under sections 3 and 5 of the Arbitration Law (Cons. Laws, ch. 72), yet unreasonable delay in making the proper application may justify a finding of waiver. While the agreement to arbitrate is not itself properly pleaded either as a defense or a counterclaim, when pleaded it is no less an assertion that the defendant does not intend to abandon his rights, and so rebuts any inference that would otherwise be drawn from the mere service of the answer. (Matter of Hosiery Manufacturers Corp. v. Goldston, 238 N. Y. 22.) But the Arbitration Law contemplates prompt action and too long a delay in seeking appropriate relief may be easily construed as an indication that this claim is waived.

Upon the record before us the Appellate Division may have affirmed the order of the Special Term either because it found that the defendant had refused to arbitrate before the action was begun or else that because of the great delay on its part it intended to waive what would otherwise have been its right. In view of this possibility we may not interfere with the result reached by it.

The order appealed from should be affirmed, with costs.

His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur; Cardozo, J., absent.

Order affirmed.