author: Desmond, J. Fuld, J. Lewis, J.

text:
    George E. Schivera, Appellant, v. Long Island Lighting Company, Defendant, and Robert Forrester, as Treasurer of Building and Construction Trades Council of Nassau and Suffolk Counties, an Unincorporated Association, Respondent.
    Argued June 3, 1946;
    decided October 3, 1946.

      Joseph, M. Proskauer, Donald Marks, Burton A. Zorn and Harold H. Levin for appellant.
    I. The complaint states a cause of action for equitable relief and incidental damages. Section 876-a does not apply to this case. The mere fact that the action arose as a result of a labor dispute between strangers to the plaintiff does not ipso facto bring it within section 876-a.
      (Canepa v. “ John Doe ”, 277 N. Y. 52; Chapman v. “ John Doe ”, 255 App. Div. 893; Scharf v. “ John Doe ”, 247 App. Div. 882; Coward Shoe, Inc., v. Retail Shoe Salesmen’s Union, 177 Misc. 708; Arden Sales Corp. v. Hawley, 176 Misc. 821; Back v. Kaufman, 175 Misc. 169; Feldman v. Weiner, 173 Misc. 461; Carpenters Union v. Ritters Cafe, 315 U. S. 722.) II. Section 876-a does not apply .to an action in which the picketing by a labor union has an unlawful objective. (American Guild of Musical Artists v. Petrillo, 286 N. Y. 226; Opera on Tour, Inc., v. Weber, 285 N. Y. 348; Florsheim Shoe Store Co. v. Shoe Salesmen’s Union, 288 N. Y. 188.) III. Since plaintiff is not a party to the dispute between the builder and the building trades council and is an ultimate consumer, section 876-a does not apply. (Goldfinger v. Feintuch, 276 N. Y. 281; Canepa v. “ John Doe ”, 277 N. Y. 52; Arden Sales Corp. v. Hawley, 176 Misc. 821; Feldman v. Weiner, 173 Misc. 461; Chapman v. “John Doe ”, 255 App. Div. 893; People v. Bellows, 281 N. Y. 67; People v. Muller, 286 N. Y. 281.) IV. To grant relief to plaintiff would not constitute an abridgement of liberty of discussion as guaranteed by the Federal Constitution. (Bakery Drivers Local v. Wohl, 315 U. S. 769; Thornhill v. Alabama, 310 U. S. 88; A. F. of L. v. Swing, 312 U. S. 321; Cafeteria Union v. Angelos, 320 U. S. 293; Carpenters Union v. Ritters Cafe, 315 U. S. 722.)

      1. Cyrus Gordon and Carl Rachlin for respondent.
    I. The controversy between the parties involves or arises out of a labor dispute within the meaning of section 876-a of the Civil Practice Act. (Norman v. Sullivan, 185 Misc. 957; New Negro Alliance v. Grocery Co., 303 U. S. 552.) II. Even if the controversy is not a labor dispute or does not grow out of a labor dispute, within the meaning of section 876-a of the Civil Practice Act, making known the fact of a lawful labor dispute between the trades council and the builder, by peaceful means is encompassed within the meaning of freedom of speech, as guaranteed in the 1st and 14th Amendments to the United States Constitution and article I, section 8 of the Constitution of the State of New York. The injunction order of Special Term was an infringement upon the right of freedom of speech, as guaranteed by the Federal and State Constitutions, and was violative thereof. (A. F. of L. v. Swing, 312 U. S. 321; U. S. v. Carolene Products Co., 304 U. S. 144; Sewn v. Tile Layers Union, 301 U. S. 468; Thornhill v. Alabama, 310 U. S. 88; Carlson v. California, 310 U. S. 106; Bakery Drivers Local v. Wohl, 315 U. S. 769.)
   Desmond, J.

The facts are undisputed. William Levitt & Sons, Inc., not a party here, owns a tract of land in Roslyn Heights, Nassau County, on which it has huilt and is building a number of residences. The streets on which the houses are located, inside the development, are private streets and there is only one entrance thereto from the public highway, through a gateway. Levitt is a nonunion builder which, sometime prior to November 28,1945, refused to recognize the defendant-respondent union or to bargain with it. Thereupon the union on November 28,1945, called a strike of such union men as were employed by Levitt inside the development. At the same time the union established a picket line at the gateway leading from the public road into the Levitt property. The picketing was peaceful and there can be no doubt that, in so picketing Levitt, the union members were exercising their constitutional right of free speech. About three weeks after the strike and picketing began, plaintiff contracted to purchase from Levitt one of the dwellings in the subdivision and on January 28,1946, closed the purchase. The house was completed except that defendant Long Island Lighting Company had not yet connected to this house (and to others in the area) its gas and electric services. On December 7, 1945, defendant Long Island Lighting Company sent some of its employees to the subdivision to do the work necessary to connect up its gas and electric lines to certain of the residences, including the one now owned by plaintiff. The lighting company’s employees belonged to a union other than defendant union. What followed is described thus in an affidavit by a vice-president of Long Island Lighting Company:

“When defendant Long Island’s employees arrived at the entrance gate of said community known as North Park, which was the only point of public ingress to the houses specified in said applications, they were confronted by two pickets carrying placards in sandwich-board fashion which bore the following legend:

‘Unfair
TO
Building
- Trades
Mechanics of A. F. of L.
Building & Construction Trades Council of
Nassau & Suffolk Counties’
“The said pickets took up their position in the roadway leading to the houses in which defendant Long Island’s employees (members of Local Union B-1049) and said employees of defendant Long Island, upon asking whether they would be allowed to enter the property or not, were told by one of the said pickets that they, the said pickets, had instructions not to allow any utilities to do any work whatsoever in the community known as North Park. Thereupon, when confronted with these circumstances, the said employees of defendant Long Island refused to cross the picket line, and gave as the reason for their refusal to so cross said picket line that as members of Local Union B-1049, International Brotherhood of Electrical Workers, A. F. of L., that by virtue of the provisions of the constitution and by-laws of said Union of which they were members, and the Union Shop provisions of the contracts between said Union and Long Island and its subsidiary the Nassau Company, they were obligated to respect the existence of a picket line and were forbidden to cross the same; that for them to cross such picket line would result in the loss of membership in the Union and, ultimately, loss of employment.
“As a result of the refusal of the employees of defendant Long Island to cross the picket line and proceed with the work of installing the equipment necessary to provide gas and electric service applied for, the defendant Long Island was prevented from carrying out said work.”

With these facts before it, Special Term denied the motion of [defendant union for a dismissal of the complaint and directed defendant Long Island Lighting Company to install its services at plaintiff’s residence. It went further and granted plaintiff an injunction, pendente lite, against the. picketing. It not onlj enjoined the defendant union from “ picketing plaintiff’s premises ’ ’, or the area in which it is located, in such manner as to compel the lighting company employees to cross the picket line in order to do their work, but forbade picketing “in such manner as will directly or indirectly result in preventing the Long Island Lighting Company from installing the gas and electric service in plaintiff’s premises”. That, of course, effectively forbade any picketing at all since picketing was physically possible only at the single gateway entrance to the development, which entrance is, incidentally, a considerable distance from plaintiff’s dwelling.

On appeal the Appellate Division reversed on the law and dismissed the complaint, solely because of plaintiff’s conceded fáilure to comply with section 876-a of the Civil Practice Act. That well known “anti-injunction” statute deprives the courts of “jurisdiction” to issue any restraining order “in any case involving or growing out of a labor dispute”, except after finding facts concededly not here present. The Appellate Division stated: “This ease grows out of a labor dispute in which the disputants are the Building and Construction Trades Council of Nassau and Suffolk Counties, and William Levitt & Sons, Inc., builders ”. (270 App. Div. 852.) That statement seems to us to be unquestionably true on the undisputed proof, and, being so, it ends this case.

Plaintiff’s only answer is that he is not a party to that labor dispute. We do not see how that can by-pass the express prohibition of section 876-a. That statute, like its prototype, the Federal Norris-LaG-uardia Act, prohibits the issuance of any injunction, which, like the one here granted by Special Term, enjoins peaceful picketing in a labor dispute. Jurisdiction to issue any such injunction is, in so many words, denied to the courts. It makes no difference who is the plaintiff. There is no jurisdiction to issue such an injunction on anyone’s application. Such are the plain words of the statute, and the obvious intent makes it even plainer. The whole purpose of the “anti-injunction” statute would be neatly and effectively thwarted if such an injunction were available to an outsider, injured or annoyed by the peaceful and lawful picketing. Such a third party can always be found by the disputant who wishes to enjoin his adversary — it was conceded in open court on the argument of this appeal that the attorney who represents this plaintiff-householder is in fact being paid by the strike-bound employer Levitt. (That circumstance explains why plaintiff continues to seek a reinstatement of the temporary injunction against picketing, even though the picketing has now ceased and the gas and electric installations have in fact now been made.)

The cases cited as justifying this injunction are not in point since they involve either secondary boycotts or violent or otherwise intrinsically unlawful strikes or picketing.

Since, as the Appellate Division held, this injunction was forbidden by section 876-a, it is unnecessary to discuss the violation of the union’s fundamental constitutional right of peaceful picketing.

The judgment and order should be affirmed, with costs, and the certified question answered in the negative. The motion to dismiss the appeals should be denied.

Fuld, J.

(concurring). The question, simply posed, is whether a third person, who suffers incidental injury from peaceful picketing in a labor dispute between others, may obtain injunctive relief without complying with the provisions of section 876-a of the Civil Practice Act. I agree with the conclusion stated by Judge Desmond that plaintiff here must comply with' the requirements of that statute. Its broad language makes no. exception for cases such as the present, and there is no reason in logic or justice why the courts should engraft on it such an exception.

Every labor dispute has the capacity of injuring noncontestants. Every strike, every stoppage of production of cessation of work due to labor differences, necessarily imposes an involuntary burden of hardship upon the consuming public. .That plaintiff suffered inconvenience or injury as a result of the picket line neither renders the union liable (Restatement of Torts, § 809) nor furnishes reason for departing from the State’s settled policy. (See May’s Furs & Ready-to-Wear, Inc., v. Berner, 282 N. Y. 331, 340; Interborough Rapid Transit Co. v. Lavin, 247 N. Y. 65, 74-75; Exchange Bahery & Restaurant, Inc., v. Rifkim, 245 N. Y. 260.) If the mere fact of such incidental injury were to give rise to a cause of action, the protection which the Legislature intended to confer upon workingmen by enacting section 876-a would soon disappear, and, indeed, this court has already ruled that the statute applies even though plaintiff alleges that he is not a party to the primary dispute between employer and union. (People v. Muller, 286 N. Y. 281, 284; Goldfinger v. Feintuch, 276 N. Y. 281.)

There was here no secondary boycott aimed at plaintiff. Any hardship resulting to him was, as indicated, only an incidental effect, not the primary objective of the picketing. Nevertheless, even if the picketing had been accompanied by threats or intimidation directed against the lighting company or its employees, section 876-a would still be applicable. (May’s Furs & Ready-to-Wear, Inc., v. Bauer, supra.) As this court expressed it in the May case (282 N. Y., at p. 341): “Plaintiffs contend that the fact of extreme violence warrants the conclusion that the case at bar does not involve a labor dispute, and consequently is not subject to the restrictions contained in section 876-a. The fallacy of this argument is revealed by the fact that where a defendant has not been guilty of unlawful activities, perforce no injunction would issue even in the absence of section 876-a. The need for statutory safeguards can exist only where a defendant is guilty of some wrongdoing and is liable to injunctive restraint. The effect of the statute is to regulate the procedure by which an injunction may be obtained and to limit the scope of the relief which may be granted. The statute is rendered meaningless unless it is allowed to operate in those cases where plaintiff is entitled to some relief.”

Actually, as the affidavits herein establish the lighting company’s employees were prevented from making the necessary installations, not by threats or by “ acts of coercion going beyond the mere influence exerted by the fact of picketing ” (Cafeteria Union v. Angelos, 320 U. S. 293, 295), but by reason of the constitution and by-laws of their own union.

We are not called upon to determine the wisdom of what was done. Our task is to construe the statute, and, as indicated above, I cannot read the broad provisions of section 876-a as being inapplicable to the case before us.

The motion to dismiss the appeals should be denied, the judgment and order of the Appellate Division should be affirmed, with costs, and the question certified answered in the negative.

Lewis, J.

(dissenting). The action is.in equity for injunctive relief and incidental damages. The injunction sought by the plaintiff would compel the defendant lighting company to install at his residence, those connecting facilities which will make gas and electricity available for domestic use. The plaintiff also seeks a temporary injunction against the defendant Trades Council restraining it from picketing the area surrounding his home in such a manner that employees of the lighting company are prevented from installing those services.

Our inquiry goes to the legal sufficiency of the plaintiff’s complaint which has been successfully challenged by the respondent, Trades Council, upon the asserted grounds that a labor dispute is involved and that the complaint fails to conform with the provisions of section 876-a of the Civil Practice Act. There is also before us for review, by leave, of the Appellate Division upon a certified question, an order of that court which reversed on the law an order of Special Term insofar as it granted plaintiff’s motion for an injunction pendente lite. In those circumstances we may adopt as the factual basis for our decision the statement of facts alleged in the complaint and additional facts set forth - in affidavits which were considered by Special Term and the Appellate Division in passing upon the plaintiff’s right to a temporary injunction. (Florsheim Shoe Store Co. v. Shoe Salesmen's Union, 288 N. Y. 188, 192-193.)

The plaintiff purchased from William Levitt & Sons, Inc., a dwelling house in the North Park section of Eoslyn Heights, Nassau County. The house was designéd for the use of gas as the heating element and electricity for illumination. After a certificate of occupancy had been issued to the plaintiff a formal application was made to the defendant Long Island Lighting Company — the only utility enfranchised to furnish gas and electric service for domestic use in Nassau County — to perform its statutory duty to connect its gas mains and electric lines with the plaintiff’s house. (Transportation Corporations Law, § 12). In its effort to comply with such demand the defendant lighting company directed its employees to install the connections for which application had been made. Meantime, however, a labor dispute had arisen between the plaintiff’s grantor, William Levitt & Sons, Inc., and the respondent Building and Construction Trades Council — an association of twenty-six local labor unions the members of which are engaged in building trades in Nassau and Suffolk counties. The cause of that dispute is that, as a builder and developer of suburban homes in various sections of Nassau County, including the North Park section of Roslyn Heights, William Levitt & Sons, Inc., has refused to recognize the unions affiliated with the defendant council. At this point we note that neither the - plaintiff nor the lighting company has any unity of interest with the disputants in that labor controversy. However, when the lighting company’s employees were enroute to plaintiff’s home and had reached the single entrance to the North Park section they were confronted by pickets who carried placards bearing the legend Unfair to Building Trades — Mechanics of A. F. of L. Building & Construction Trades Council of Nassau & Suffolk Counties.” Upon inquiry by the lighting company’s employees whether they would be allowed to enter the section where plaintiff’s house was located they were told that the pickets “ had instructions not to allow any utilities to do any work whatsoever in the community known as North Park.” The employees of the lighting company thereupon refused to cross the picket line and gave as the reason for such refusal that they were forbidden to do so by the constitution and by-laws of their own Local Union B-1049 International Brotherhood of Electrical Workers, A.F. of L. As a result of such picketing the defendant lighting company refused to install the connections which would have afforded plaintiff the gas and electric service which the company was under a statutory duty to furnish. The ground for such refusal by the lighting company was that its employees were members of Local Union B-1049, with which it had a contract governing labor conditions affecting such employees; that to have' compelled its employees to cross the picket line, or to have employed others to do so in an effort to make the installations at plaintiff’s house would have caused a strike by its entire body of employees and that such strike in turn would have deprived consumers of gas and electric service within its franchise area comprising large sections of Nassau and Suffolk Counties.

The motion by the defendant Trades Council to dismiss the complaint was denied at Special Term where a mandatory injunction issued directing the defendant lighting company to make the connecting installations for which formal application had been made. Special Term also enjoined the defendant Trades Council from picketing the area in which the plaintiff’s house is located in such manner as to compel the employees of the defendant lighting company to cross a picket line in their effort to gain access to plaintiff’s premises for the purpose of installing gas and electric service, or in such manner as will directly or indirectly result in preventing the lighting company, from making such installations. Upon appeal by the defendant Trades Council to the Appellate Division the order of Special Term was reversed on the law; plaintiff’s motion for a temporary injunction was denied and the motion by the defendant Trades Council to dismiss the complaint was granted. The Appellate "Division has stated the basis of its decision to be that — “This case grows out of a labor dispute in which the disputants are the Building and Construction Trades Council of Nassau and Suffolk Counties, and William Levitt & Sons, Inc., builders. Since section 876-a of the Civil Practice Act applies to ‘any case involving or growing out of a labor disputé,’ plaintiff should have complied with the provisions of that section.” (270 App. Div. 852.)

It is true that the picket line formed across the only entrance to the North Park section where plaintiff’s premises are located was stationed at that point by the defendant Trades Council in the exercise of its right to conduct peaceful picketing as an incident to those rights which it asserts in the labor dispute in which it is engaged with William Levitt & Sons, Inc. It is important to note, however, that the plaintiff pleads no grievance against the defendant Trades Council by.reason of the activities of its pickets against William Levitt & Sons, Inc,; nor does the temporary injunction granted by Special Term restrain such activities in any way.

The plaintiff’s house was uninhabitable without gas to supply heat for domestic uses and electricity for like purposes. Lacking both heat and light the application was made which, except for interference by picketing done under the direction of the defendant Trades Council, would have brought about compliance by the defendant lighting company with its statutory duty to furnish gas and electricity. The grievance which the. plaintiff pleads is that, although he is an entire stranger to the labor dispute — of which the picket line is an incident — the activity of that picket line has served, without fault on his part, to deprive him of gas and electric services in his home to which he is legally entitled and which the defendant lighting company is under a statutory duty to supply. In those circumstances we conclude that plaintiff’s complaint and the affidavits before us state a ease which is not one “involving or growing out of a labor dispute” and accordingly does not fall within the purview of section 876-a of the Civil Practice Act. (Goldfinger v.Feintuch, 276 N. Y. 281, 286; Canepa v. “ John Doe ”, 277 N. Y. 52, 54-55; American Guild of Musical Artists v. Petrillo, 286 N. Y. 226, 231.)

Labor objectives there are which have gained the sanction of law in this State and in the nation. However, like all rights recognized by government ruled by justice under law, the statutory and common-law rights which labor unions have gained in support of their objectives are burdened with the duty of respect for those private rights of individuals which are not within the scope of the unions’prerogatives. We have said that “ * * * picketing is for the purpose of promoting the lawful interests of a labor union in a labor dispute” (per Lehman, Ch. J. in People v. Muller, 286 N. Y. 281, 284). In the present case, however, the facts pleaded by the plaintiff, which we must accept as true, may be the subject of proof of conduct in a labor dispute by pickets posted by the defendant Trades Council which go beyond the limits of permissible interference with the private rights of the plaintiff who has no unity of interest with the disputants and whose pleading states that he has “ no relationship to or concern with said dispute ”. In such a case equity may intervene. (See People v. Bellows, 281 N. Y. 67, 70-71; Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150, 155.)

Neither the plaintiff’s complaint nor the temporary injunction granted by Special Term serves as a limitation upon speech. We are not confronted with that constitutional problem because neither the complaint nor the temporary injunction which the plaintiff seeks offends against constitutional guarantees of free speech. In this connection the Supreme Court of the United States, dealing with a kindred problem, has recently said “ * * * recognition of peaceful picketing as an exercise of free speech does not imply that the states must be without power to confine the sphere of communication to that directly related to the dispute. Restriction of picketing to the area of the industry within which a labor dispute arises leaves open to the disputants other traditional modes of communication. -To deny to the states the power to draw this line is to write into the Constitution the notion that every instance of peaceful picketing — anywhere and under any circumstances — is necessarily a phase of the controversy which provoked the picketing. Such a view of the Due Process Clause would compel the states to allow the disputants in a particular industrial episode to conscript neutrals having no relation to either the dispute or the industry in which it arose.” (Carpenters Union v. Ritter’s Cafe, 315 U. S. 722, 727-728.)

The vice of the defendant Trades Council’s conduct upon which plaintiff rests his right to relief was not in the exercise of its right of free speech. (See Bakery Drivers Local v. Wohl, 315 U. S. 769, 775.) In the complaint before us is the allegation that “said defendant unions acting singly and in concert have threatened defendant Lighting Company with a strike if said Lighting Company should cause said utilities to be installed. As a result of said picketing and threats, defendant Lighting Company has refrained from causing its employees to install said utilities, and; has refused to make such installation. ’ ’ The conduct by the defendant Trades Council of which the plaintiff complains is the unlawful interference with performance by the defendant lighting company of its statutory duty to make available- to plaintiff the electric and gas services to which he was legally entitled.

There remains for consideration the contention by the defendant Trades Council that the question presented by this appeal has become moot and that accordingly the appeal must be dismissed upon the ground that this court will not review abstract questions. The argument thus advanced fails to heed the fact that in addition to the injunctive relief sought by the plaintiff he demands compensatory damages. After setting forth in the complaint acts and omissions by the defendant of which he complains it is alleged that “ plaintiff and his-family have been unable to occupy said premises and will be unable to do so until said utilities have been installed.” It is also alleged that “ by reason of the premises, plaintiff expects that he will be subjected to substantial loss and damage as a result of the acts and omissions of the defendants, the exact amount of which damage is now unascertainable.”

The assertion by the defendant Trades Council that the question presented by the appeal has become moot has as its basis the fact that after the decision herein by the Appellate Division which reversed the order of Special Term and dismissed the plaintiff’s complaint, the defendant Trades Council withdrew the picket line posted at the single entrance to the North Park section where the plaintiff’s premises are located. Thereafter, on or about May 4, 1946, the defendant lighting company made the installations which afforded gas and electric service to plaintiff’s house to which he had acquired title on January 28, 1946. If, as the complaint states, the plaintiff took title on the latter date to the premises here involved, and if, despite formal application thereafter made to the defendant lighting company, the services of gas and electricity for domestic purposes were not made available at his home until May 4, 1946, proof of.the lack of those services during the substantial intervening period of time under the conditions pleaded by the plaintiff may afford a legal basis for his demand for compensatory damages against both defendants. What was said in Nevins, Inc., v. Kasmach (279 N. Y. 323, 326) applies here with equal force: Since the plaintiff rightfully invoked the jurisdiction of equity to apply for an injunction, the complaint must be sustained and plaintiff may have any incidental relief by way of damages or otherwise to which it may be entitled so that complete disposition of the controversy between the parties, arising in equity, may be obtained (McGean v. Metropolitan Electric Ry. Co., 133 N. Y. 9, 16, 17; Sadlier v. City of New York, 185 N. Y. 408, 414, 415).” (See, also, Ferguson v. Village of Hamburg, 272 N. Y. 234, 239; People ex rel. O’Connor v. Girvin, 227 N. Y. 392, 397; Williams v. Montgomery, 148 N. Y. 519, 524-525.)

The judgment and order of the Appellate Division should be reversed and the order of Special Term affirmed, with costs in this court and in the Appellate Division. The question certified by the Appellate Division should be answered in the affirmative.

Loughban, Ch. J., and Dye, J., concur with Desmond, J.; Fuld, J., concurs in separate opinion; Lewis, J., dissents in opinion in which Conway and Thacher, JJ., concur.

Judgment and order affirmed, etc. [See 296 N. Y. 851.]


source: Caselaw Access Project

author: Fuld, J. Conway, J.

license: Public Domain

text:
    Excelsior Insurance Company of New York, Respondent, v. State of New York, Appellant. Liverpool and London and Globe Insurance Company of Liverpool, England, Respondent, v. State of New York, Appellant. Anthony L. Wathley, Respondent, v. State of New York, Appellant.
    (Claim. No. 25112.)
    (Claim No. 25113.)
    (Claim No. 25114.)
    Argued January 10, 1946; reargued June 4, 1946, and October 15, 1946;
    decided October 17, 1946.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd, Wendell P. Brown, Edward L. Ryan and John R. Davison of counsel), for appellant.
    I. Claimants failed to show a breach of duty owed to them by the State. Flood’s history did not impose upon the State the duty of keeping him imprisoned. (Pollock’s Law of Torts, 150, 151; Restatement, Torts, §§ 316, 319; Amer. Jur. § 61, p. 697; Steinberg v. Gauchois, 249 App. Div. 518; Whitside v. Wheeler, 158 Ky. 121; Thibodeau v. Cheff, 24 Ont. Law Rep. 214; Calabria v. State, 176 Misc. 925, 263 App. Div. 1056, 289 N. Y. 613; Halverson v. 562 W. 149th St. Corp., 290 N. Y. 40; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339.) II. The State did not assume the duty of keeping Flood constantly confined. (Hosmer v. Carney, 228 N. Y. 73; Sporza v. German Savings Bank, 192 N. Y. 8.) III. The finding of the Appellate Division is contrary to the weight of evidence. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339.) IV. There was nothing in the history of Flood prior to the acts complained of, known to the officers and employees of the Wassaic State School, which placed them on notice that unless kept under constant guard he would elope and would damage the property of another. V. In undertaking to care for and train Flood as a mental defective the State did not assume .the duty of keeping him under constant surveillance or behind locked doors and barred windows. (Calabria v. State of New York, 176 Misc. 925, 263 App. Div. 1056, 289 N. Y. 613; People ex rel. MacCracken v. Miller, 291 N. Y. 55.)

      John E. Mach for respondents.
    I. Claimants are entitled to judgment on the facts and law since the undisputed evidence shows that the escape of the inmate and the resultant fire were due to the negligence of the officials and employees of the institution in failing to take reasonable measures to guard against the escape. II. If, as the Court of Claims assumes, there was negligence in the first instance on the part of the officials and employees of Wassaic State School, that ends the ease on the question of liability. Liability is not then lifted because those officials and employees did not foresee that the escapist Flood would set a building on fire if permitted to be at large. It was enough, that within the range of prudent foresight, some form of harm or injury might possibly occur if a mental defective, with a long record of escapes and pilferings, and a mental condition which was growing worse, were permitted to roam the countryside (Robert v. U. S. S. B. Emergency Fleet Corp., 240 N. Y. 474; Munsey v. Webb, 231 U. S. 150; Condran v. Park & Tilford, 213 N. Y. 341; Meisle v. N. Y. C. & H. R. R. R. Co., 219 N. Y. 317; O’Neill v. City of Port Jervis, 253 N. Y. 423; Shattuch v. State of New York, 166 Misc. 271, 254 App. Div. 926; Benson v. State of New York, 52 N. Y. S. 2d 239; Calabria v. State of New York, 176 Misc. 925; Weihs v. State of New York, 267 App. Div. 233; Jones v. State of New York, 267 App. Div. 254.) III. The case record and the conduct of Flood at the State school prior to the fire, gave ample notice to that institution that he was dangerous to be at large. (Sporsa v. German Savings Bank, 192 N. Y. 8; Foley v. State of New York, 294 N. Y. 275.)
   Fuld, J.

On the night, of February 19, 1936, Francis Flood, an eighteen-year-old moron, ran away, or, as it is technically termed, “ eloped ” from the Wassaic State School in Amenia, New York, a public institution for the care and treatment of mental defectives, where he had been for about four months. Coming to a lumberyard in nearby. Dover Plains, he entered an unlocked barn owned by Anthony Wathley, one of the claimants in this case. Since it was sub-zero weather and he was thinly clad, he kindled a fire in a bucket, using matches and cellophane which he had taken with him and pieces of straw which ho found lying loose atop some bales of hay.- When he felt sufficiently warmed, he resumed his flight — first turning the bucket upside down in the belief that that was the way to put out the flame. Unfortunately, however, the fire blazed and spread, causing the property damage for which Wathley and his coclaimants — two insurance companies which became subrogated to his rights to the extent of payments made to him under policies insuring the property against loss by fire — commenced this action upon consolidated claims .for recovery against the State on the ground of negligence.

Flood had previously escaped many times from the Borne State School — where he had spent about nine years prior to entering Wassaic in October, 1935 — and once or, perhaps, twice before from Wassaic. Eighteen years of age, he was a high grade moron with an I.Q. of 66, only slightly below the dividing line, and a mental age of a boy of ten and one half years. While his judgment was deficient and while he demonstrated a definite inability to learn or to progress -at school, he possessed no other important mental defect or disturbance. Neither his extensive case history nor the evidence in the case revealed that he had any criminal tendencies or that he had ever before caused injury to either person or property. Nothing in either his history or his record furnished the slightest basis for a belief that it was dangerous for him to have matches or that he might start a fire.

The Court of Claims dismissed the claims after trial, holding that the State could not reasonably have anticipated the fire damage on the basis of Flood’s prior record; that his elopement was neither the result of negligence nor, at any rate, the proximate or responsible cause of the fire; and that his supervision and treatment by the Wassaic authorities, were proper and reasonable under the circumstances. The Appellate Division reversed and found that the State was guilty of actionable negligence.

The Court of Claims correctly decided in favor of the State Since dismissal of the claims is required as a matter of law, there is no need to consider the question of the weight of the evidence.

Wassaic State School was maintained, in accordance with constitutional mandate (N. Y. Const., art. XVII, § 4), for the care and treatment of the poor and indigent mental defectives, of the State (Mental Hygiene Law, § 120). “ Mental defective ” is defined as “ any person afflicted with mental defectiveness from birth or from an early age to such an extent that he is incapable of managing himself and his affairs, who for his own welfare or the welfare of others or of the community requires supervision, control or care and who is not insane or of unsound mind to such an extent as to require his commitment to an institution for the insane * * * ” (§ 2, subd. 3, at present, subd. 9). Persons “ in confinement on a criminal charge ” may not be admitted to the school (§ 121).

In short, mental defectives are not received at Wassaic for the purpose of incarceration; they are there, to quote the language of the statute, for ‘ care and treatment ’ ’. The school, consistent with statutory policy and purpose, functions for the benefit and training of its charges, there being in prospect the restoration of the individual to a useful place in society. It was, in every sense, an open institution, one without walls or bars.

Toward the inmate Flood, the State had a “ quasi-parental power ” — bound, Sir Frederick Pollock has observed, to use more diligence in informing itself what treatment was proper for him than a parent would be bound to use. (Pollock on Law of Torts [new American ed., 1894], pp. 150-151.) So far as third persons were concerned, though, the State stood in loco parentis. (Cf. Restatement, Torts, §§ 316-317.) The State owed the community, the outside world, no greater duty than would parents under similar circumstances. In the absence of reason indicating a need to isolate him, neither parent nor State is under the necessity of locking him up or keeping him under constant surveillance. (Calabria v. State of New York, 289 N. Y. 613.)

No hazard being apparent, Flood’s act cannot render the State responsible for the resulting damage. As Chief Judge Cardozo phrased it in Palsgraf v. Long Island R.R. Co. (248 N. Y. 339, 344): “ The risk reasonably to be perceived defines the duty to be obeyed,” and that test has, in principle, been consistently applied by the courts in determining whether to impose liability upon the State where injury befalls the patient who elopes from a public institution (cf. Calabria v. State, supra; Martindale v. State of New York, 269 N. Y. 554; Shattuck v. State of New York, 166 Misc. 271, affd. 254 App. Div. 926) or a third person who is assaulted by an escaped inmate of a mental hospital (Weihs v. State of New York, 267 App. Div. 233; Jones v. State of New York, 267 App. Div. 254), or where property is damaged by such an inmate. (Benson v. State, 52 N. Y. S. 2d 239.)

Regulations of the State Mental Hygiene Department, it is true, required the Wassaic authorities to lock up all * * * matches ” to search the clothing of patients for prohibited articles at regular intervals, and to keep elopers “ under close and constant observation.” From that standpoint, the State may have been negligent in not assuring compliance with the regulations and in not making certain that the boy did not elope. But such conduct, while perhaps a wrong in relation to its ward and to the institution itself, could not be regarded as a wrong to the community or to third persons, such as claimants herein. Even if the State acted negligently with respect to Flood or the institution, that fact does not entitle claimants herein to sue as the vicarious ” beneficiaries of the breach of duty owed to others. (Palsgraf v. Long Island R. R. Co., supra, p. 342.)

With the foregoing principles in mind, we fail to find basis for the imposition of liability upon the State. The authorities at Wassaic could not reasonably have anticipated — from his history of harmless elopements — a Flood likely to set fires, or otherwise dangerous, while at large. That being so, and since the boy was neither insane nor criminal, it owed no duty to claimants or other members of the outside world to guard him closely or to see to it that he did not leave the institution. • •

A situation somewhat analogous to that here involved was presented in Prudential Society, Inc., v. Ray (207 App. Div. 496, affd. 239 N. Y. 600). There, an incompetent had pledged with plaintiff pawnbroker a valuable diamond ring which her husband, who was also committee of her person and property, had given her. As the husband — defendant in the action predicated upon his asserted negligence — knew, she had long been in the habit of pawning jewelry and giving away clothing; in fact, the husband had previously replevied articles pledged by her. However, for sometime prior to the act of pledging referred to, she had apparently been normal and, indeed, her physicians had advised the husband to treat her as a normal person and not to keep her under restraint. In a suit for damages, after defendant had replevied the ring, it was held that the husband was not guilty of any breach of duty owed to the pawnbroker, since the wife’s condition at the time was not such as to require confinement. (See, also, Ballinger v. Rader, 153 N. C. 488, 151 N. C. 383; Hullinger v. Worrell, 83 Ill. 220.)

Decision herein has a significance which transcénds the issue of whether or not a money, recovery should be allowed. In time gone by, mental defectives were confined and kept under constant surveillance. Medical and psychiatric advances, demonstrating the inadvisability of that system, prompted the State to abandon it and adopt the modern and therapeutically approved method of allowing the moron a freedom of action without close and continual watching. To hold the State liable in a case such as the present may have an inimical and retarding effect on the treatment of mental defectives. The State, faced with accepting responsibility as an insurer of any damage the moron might cause, may well be tempted to depart 'from its salutary procedure, may well be influenced to revert to the outmoded and disadvantageous system of confining the mental defective, of keeping him under constant surveillance, while he is being trained to make those social adjustments essential to independent and successful living.

A balance must be struck between contending interests — (1) the State’s duty to treat and care for its mental defective wards, with an eye toward returning them to society more useful citizens, and (2) the State’s concern that the inmates of its institutions cause no injury or damage to the property of those in the vicinity. That balance may be hard to achieve. We keep within settled legal principles, however, if the State is held only to a duty of taking precautions against those risks “ reasonably to be perceived ” (Palsgraf v. Long Island R.R. Co., supra, p. 344), and if the community assumes the risk of accidental loss or damage to property by an inmate of, an open institution such as Wassaic.

In each action, the judgment of the Appellate Division should be reversed and that of the Court of Claims affirmed, with costs in this court and in the Appellate Division.

Conway, J.

(dissenting). The question presented for our consideration is the extent of thé duty of the State to the owners and tenants of dwellings and outlying buildings adjoining property taken by the State for the purpose of housing mental defectives from surrounding counties and New York City. On the facts here we think there is no question as to the negligence of the State: the rules of the Mental Hygiene Department then in effect at this school show that elopers were to be kept “ under close and constant observation ”, and the practice of the school was to .provide constant attendance upon patients when they were outside the school buildings and to lock the doors at night when they were inside. When the State itself took these precautions it may not at the same time deny the necessity for them. Mental Hygiene Law, section 2, subdivision 3, makes the welfare of the community as well as the welfare of the mental defective reason for “ supervision, control or care ”.

There is no question here but that Flood was an eloper. He had eloped from Rome State School and police officials found him wandering in the city of Poughkeepsie. From there he was taken to Wassaic State School and later, on November 1, 1935, formally transferred from the custody of the Rome State School to that of Wassaic State School. The case record from Rome State School, which was sent to the officials at Wassaic, revealed that Flood had “ had to be kept on a lock-up ward ” because of his proclivity of running away ”. The case record showed that he had eloped “ at least four times ” from the Rome State School. When he reached Wassaic, since he was suffering from a communicable disease, he was placed in the ward of the hospital. On November 6,1935, he escaped from that hospital ward through an open window, but was later returned to the hospital. The nurse who left him without supervision on February 19, 1936, went on duty in the hospital ward on November 23, 1935. No notice was ever given her that Flood was an eloper, nor that he had run away from Wassaic on November 6th. She was alone in the ward with about forty patients. Under instructions from one of the doctors she took ten or twelve of the patients, Flood among them, to the basement for a smoke at about seven o’clock in the evening. After she lighted their cigarettes (since they were not permitted to have' matches), she left them unattended for about ten minutes. During those ten minutes, so little supervision was there in the institution that Flood had the time and the opportunity, to go upstairs to a bathroom where he .had hidden some clothing three days before and to come down again and dress. Clearly there was negligence in supervision. One extra nurse in a hospital ward would have prevented the destruction of very considerable property. Patients in hospital wards in all hospitals, whether institutional or not, are always supervised. Particularly is that the case where the patients are suffering from communicable diseases. The alternative is not iron bars or armed guards. We do not think that in order to avoid engaging an extra nurse,- or even several, or a proper number of employees, so that there may be proper supervision, that those who administer the Department of Mental Hygiene and the appropriate boards of visitors would place all these mental defectives, whether in hospital wards or not, under lock and key as prisoners. Yet that is what the State urges is the necessary result if it must pay his fire loss- to the individual claimant, whose loss was so great that it exceeded his insurance coverage.

If there be negligence in supervision, then the only question is whether the conduct of the boy Flood should have been anticipated. As to that, we need do no more than quote the testimony of the clinical director of the school, who said that it is “ impossible to state ” what these patients will do in the future, whatever their past records. In addition, the claimants’ expert witness testified that in his opinion Flood’s judgment was so defective that danger from any fire which he set anywhere could reasonably be anticipated and that it was not' safe for Flood to be at large.

The judgment should be affirmed, with costs.

Loughran, Ch. J., Desmond, Townley and Hinkley, JJ., concur with Fuld, J.; Conway, J., dissents in opinion in which Thacher, J., concurs.

Judgments reversed, etc.

       Designated pursuant to section 5 of Article VI of State Constitution in place of Lewis, J., disqualified.

       Designated pursuant to section 5 of Article VI of State Constitution in place of Dye, J., disqualified.


author: Fuld, J.

text:
    Wallace Williams, as Administrator of the Estate of Robert Williams, Deceased, Respondent, v. Grace Hartshorn, Appellant.
    Argued September 30, 1946;
    decided October 17, 1946.

      Percy B. Smith and Edmund S. Brown for appellant.
    The remedy afforded by the Workmen’s Compensation Law is exclusive. (Matter of Peck, 206 N. Y. 55; Caplan v. Caplan, 268 N. Y. 445; Matter of Lyle v. Lyle Cider & Vinegar Co., 243 N. Y. 257; Patrikes v. J. C. H. Service Stations, Inc., 180 Misc. 917; Matter of Salatto v. Salatto, 256 N. Y. 569; Matter of Munter v. Ideal Peerless Laundry, 229 App. Div. 56; Matter of Duprea v. Duprea, 224 App. Div. 673; Barrencotto v. Cocker Saw Co., 266 N. Y. 139; Matter of Post v. Burger & Gohlke, 216 N. Y. 544; DeAntonis v. Catalano, 256 App. Div. 10; Pantolo v. Lane, 185 Misc. 221; Varrichio v. Schmitt, 295 N. Y. 920; Park v. Union Manufacturing Co., 114 P. 2d 373; Reed v. Industrial Acc. Comm., 10 Cal. 2d 191; Broilier v. Van Alstine, 163 S. W. 2d 109.)

      Albert E. Hollis for respondent.
    The provisions of the Workmen’s Compensation Law have no application to the present action. (Murphy v. Rochester Telephone Co., 208 App. Div. 392, 240 N. Y. 629; Matter of Peck, 206 N. Y. 55.)
   Fuld, J.

The question here posed is this: Is the administrator of a partnership employee, who died as a result of injuries arising out of and in the course of his employment, precluded from maintaining a common-law action for negligence against the partner who owned the premises where the partnership business was carried on and where the employee was killed ?

The Workmen’s Compensation Law was designed to assure to the workingman a protection against loss of earning power through ill jury sustained in his employment, irrespective of how that injury occurred or what brought it about. After imposing this new and comprehensive liability upon the employer, the statute accords to him, in return therefor, relief from any and all other liability on account of such injury or death ”. (Workmen’s Compensation Law, § 11; see Barrencotto v. Cocker Saw Co., 266 N. Y. 139,142.) Further evidence of the legislative intent to make compensation the comprehensive and exclusive remedy for such injury. as regards the employing organization is found in section 29, subdivision 6, of the statute, which precludes common-law actions based upon the negligence or wrong of another in the same employ.” (Cf. Mittman v. Meyerson, 19 N. Y. S. 2d, 575.)

Regardless of his status as owner of the premises where the injury occurred, an employer remains an employer in his relatians with his employees as to all matters arising from and connected with their employment. He may not be treated as a dual legal personality, a sort of Dr. Jekyl and Mr. Hyde ”. (Per Guy J., Winter v. Doelger Brewing Co., 95 Misc. 150, 153.) Accordingly, defendant, as employer, was absolved from “ any other liability whatsoever * * * at common law or otherwise on account of such * * * death”. (Workmen’s Compensation Law, § 11; see, also, Winter v. Doelger Brewing Co., Inc., 226 N. Y. 581, affg. 175 App. Div. 796; DeAntonis v. Catalano, 256 App. Div. 10; Park v. Union Mfg. Co., 45 Cal. App. 2d 401.) Decisiqn by this court in the Winter case points the conclusion here. Plaintiff, employed as a delivery man by defendant brewing company, was injured in the course of his usual work while delivering beer to a saloon. Though the premises were located at some distance from the brewery, they were owned and controlled by defendant, and it was defendant’s own negligent conduct — the improper maintenance of an elevator — that occasioned the injury. Nevertheless, it was held that the employee could, not resort to an action at law, since the employer’s exclusive liability was under the Workmen’s Compensation Law.

Nor does the fact that defendant herein is but one member of the partnership which employed decedent alter the result. While the Legislature has the right to consider a partnership apart from its members (Matter of Schwartzman, 288 N. Y. 568), in the absence of such legislative treatment, a partnership is not to be regarded as a separate entity distinct from the persons who compose it. (Partnership Law, § 10; Caplan v. Caplan, 268 N. Y. 445; Matter of Lyle v. Lyle Cider & Vinegar Co., 243 N. Y. 257; Matter of Peck, 206 N. Y. 55; Park v. Union Mfg. Co., supra.)

It is clear, then, that the present action cannet be maintained, for its prosecution would violate not only the letter of the statute, but, also, its very spirit and purpose.

The orders should be reversed and the complaint dismissed, with costs in all courts. The question certified should be answered in the affirmative. .

Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Orders reversed, etc.


author: Dye, J. Conway, J.

text:
    In the Matter of Standard Food Products Corp., Appellant, against John F. O’Connell et al., as Members of the State Liquor Authority, Respondents.
    Argued April 8, 1946;
    decided October 17, 1946.

      George Morton Levy for appellant.
    I. Petitioner made no sales or deliveries to unlicensed persons within the meaning of the statute. (Matter of Sears, Roebuck & Co. v. McGoldrick, 279 N. Y. 184.) II. The doctrine of respondeat superior does not apply in this case. (Cullinan v. Burkard, 93 App. Div. 31.) III. The action of the Liquor Authority was arbitrary and capricious. (Matter of Toyos v. Bruckman, 266 App. Div. 28.)

      Alvin McKinley Sylvester, Harry F. Karst and Jack Reinstein for respondents.
    I. There was substantial and competent evidence to sustain the findings by the authority that petitioner sold and delivered alcoholic beverages to persons not duly licensed under the Alcoholic Beverage Control Law. (People v. Hawk, 156 Misc. 870, 268 N. Y. 678; Matter of Savoy Associates, Inc., v. Valentine, 266 App. Div. 63; Matter of Cullinan [Niederstein Cert.], 88 App. Div 6; Matter of Goodstein v. State Liquor Authority, 252 App. Div. 729; Matter of Wallach v. State Liquor Authority, 251 App. Div. 822; People ex rel. Klein v. Bruckman, 248 App. Div. 807; Matter of Orado, 247 App. Div. 897; Matter of Cullinan [McGue Cert.], 39 Misc. 636; Matter of Lyman, 29 Misc. 524; Cullinan v. Burkard, 93 App. Div. 31; People v. Werner, 174 N. Y. 132; People v. D’Antonio, 150 App. Div. 109.) II. The determination of the authority was neither capricious nor arbitrary and was based solely upon the evidence adduced at the hearing. (Matter of Miller v. Kling, 291 N. Y. 65; Matter of Valentino v. O’Connell, 268 App. Div. 812; Matter of Yates v. Mulrooney, 245 App. Div. 146; Matter of Townley v. Bruckman, 168 Misc. 422; People ex rel. Regan v. Enright, 240 N. Y. 194; People ex rel. Morrissey v. Waldo, 212 N. Y. 174; People ex rel. O’Callahan v. French, 123 N. Y. 636; People ex rel. Masterson v. French, 110 N. Y. 494; Bertholf v. O’Reilly, 74 N. Y. 509; Matter of Fortino v. State Liquor Authority, 273 N. Y. 31; People ex rel. Joline v. Willcox, 198 N. Y. 433.)
   Dye, J.

The State Liquor Authority has suspended for a period of thirty days the wholesale liquor license held by the petitioner-appellant and has directed a forfeiture of its bond.

According to the record before us, the petitioner-appellant is engaged in the wholesale liquor business in the city of New York, serving between 3,500 and 4,000 customers to whom it makes deliveries in its own trucks except in the Staten Island area where a licensed liquor truckman is hired. Due to the unusual demands for popular brands of whiskey, the leading distillers developed a practice of furnishing wholesalers with allocation lists wherein specified quantities of whiskey were allotted to retailers listed therein. Such a list was furnished by Car-stair’s Distilling Company to the petitioner-appellant who gave copies of it to its salesmen for use in their assigned territories, without checking same for current license holders. The practice óf petitioner was to accept the list as accurate and to rely on its salesmen who were instructed to check on the retailer’s license when taking an order, to list the license number on the order and to take no orders from any unlicensed retailer. The same instructions were applicable to truckmen making deliveries. A salesman, employed by the petitioner-appellant and assigned to the Staten Island territory, discovered that Car-stair’s allocation list contained the names and addresses of retailers who had gone out of business or who, for various reasons, were not currently licensed to sell whiskey. This discrepancy suggested a scheme, the execution of which furnished the basis of the charges herein. It worked in this fashion: The salesman made out a fake order in the name of the nonexistent or t unlicensed retailer, noting thereon a fictitious license number and marking it for C.O.D. delivery. This fake order was then processed in the same manner and along with genuine orders. In the usual course, a package containing the whiskey called for by the fake purchase slip was sent to the delivery platform, together with a C.O.D. delivery receipt, and was there picked up by Wacker’s Express, a licensed liquor truckman regularly hired by the appellant. By prearrangement the driver of the express truck delivered the whiskey to the salesman who put up the cash called for by the C.O.D. invoice. The truck driver then signed the delivery' receipt in the name of the presumed purchaser with an illegible signature and turned it into the office along with the cash and the genuine receipts for bona fide transactions. The fake order, having been handled as a C.O.D., had never passed through the credit department where it would have been subjected to a check before delivery. In this manner, many small lots of whiskey, aggregating about thirty-six cases, were diverted. One step in the normal procedure was overlooked and led to its exposure. The scheme was uncovered when the petitioner-appellant, in keeping with routine office practice, mailed a paid invoice containing an itemized statement of the transaction to an unlicensed retailer whose name had been used by the dishonest salesman in furtherance of his fraudulent scheme and such person, on receipt of the paid invoice, knowing that it had neither purchased nor received the Carstair’s whiskey mentioned, reported it to the State Liquor Authority who made an investigation which revealed the above circumstances.

This appear brings up for review the sufficiency of this evidence as a matter of law to sustain the determination of the State Liquor Authority that the appellant had made sales of alcoholic beverages to unlicensed persons within the meaning of the statute. Section 100, subdivision 2, of the Alcoholic Beverage Control Law provides: No manufacturer and no wholesaler shall sell, or agree to sell or deliver in this state any alcoholic beverage for the purposes of resale to any person who is not duly licensed pursuant to this chapter to sell such beverages, at wholesale or retail, as the case may be, at the time of such agreement and sale.”

Section 3, subdivision 28, reads as follows: “ ‘ Sale ’ means any transfer, exchange or barter in any manner or by any means whatsoever for a consideration, and includes and means all sales made by any person, whether principal, proprietor, agent, servant or employee of any alcoholic beverage and/or a warehouse receipt pertaining thereto. To sell ’ includes to solicit or receive an order for, to keep or expose for sale, and to keep with intent to. sell and shall include the delivery of any alcoholic beverage in the state.”

The statutory definitions in section 3, subdivision 28, broad as they are, do not of themselves enlarge the prohibition contained in section 100, subdivision 2, but depend, as do other regulatory statutes, upon proof of a clear violation of the prohibited acts before the penalty provisions will be enforced. We have heretofore held that when acts not mala in se are to result in loss or impairment of life, liberty or property the applicable statute should be narrowly construed (People v. Shakun, 251 N. Y. 107), and that considerations of expediency ” must not outweigh a lack of proof (People v. Wallace & Company, 282 N. Y. 417, 420). Similarly, a license to engage in the liquor business, even though frequently referred to as a privilege and not a right, when it has been issued and acted upon by the holder, should be subject to revocation or suspension only upon competent proof showing a clear violation of the applicable regulatory provision. Under the proof in this record we are unable to say that the petitioner-appellant sold or agreed to sell or deliver ;alcoholic beverages to unlicensed persons for the purpose of resale. The proof shows that the liquor was not ordered or received, or price paid-therefor, by the unlicensed person named on the purchase slip — his name, in fact, being used, without knowledge or authority, to conceal a fraudulent diversion. The only testimony in the record regarding the ultimate disposition of the liquor is that the salesman — the actual recipient — used some for his personal consumption and gave the rest to his friends. Both the petitioner-appellant and the purported purchaser were the victims of a fraudulent scheme engineered by a dishonest employee, and there is no factual support for the conclusions that the petitioner-appellant either sold or agreed to sell or deliver liquor to any unlicensed person for the purpose of resale, as defined by the statute.

While it may be said that the petitioner-appellant was lax in the conduct of its business, the suspension of its license and the forfeiture of its bond cannot be supported on the theory of its neglect or failure to discover that the fake purchaser was unlicensed, for nondiscovery was not the violation with which the petitioner-appellant was charged.

The order of the Appellate Division should be reversed and the determination of the State Liquor Authority annulled, with costs in this court and in the Appellate Division.

Conway, J.

(dissenting). This proceeding was instituted to obtain a review of a determination and order made by the State Liquor Authority (hereinafter referred to as Authority) suspending the wholesale liquor license of the petitioner, Standard Food Products Corp. (hereinafter referred to as Standard) for a period of thirty days and making demand upon Standard and the surety company which executed the bond in connection with the issuance of the license, for the penal sum provided for therein. The determination by the Authority was made after hearing and resulted in the sustaining of seven charges of violations of section 100, subdivision 2, of the Alcoholic Beverage Control Law. That subdivision reads as follows: “ 2. No manufacturer and no wholesaler shall sell, or agree to sell or deliver in this state any alcoholic beverage for the purposes of resale to any person who is not duly licensed pursuant to this chapter to sell such beverages, at wholesale or retail, as the case may be, at the time of such agreement and sale.”

In order to make the prohibition against a violation of that subdivision as broad and far reaching as possible, for it was" of vital importance in carrying out the policy of the State (§ 2), the Legislature made its own definition of a sale ”. It defined it as follows in section 3, subdivision 28: “ 28. ‘ Sale ’ means any transfer, exchange or barter in any manner or by any means whatsoever for a consideration, and includes and means all sales made by any person, whether principal, proprietor, agent, servant or employee of any alcoholic beverage and/or a warehouse receipt pertaining thereto. ‘ To sell ’ includes to solicit or receive an order for, to keep or expose for sale, and to keep with intent to sell and shall include the delivery of any alcoholic beverage in the state.” Thus the Legislature not only provided for the conventional sale defined in the Personal Property Law, section 82, but it provided that the words “ to sell ” as used in section 100, subdivision 2, should include the receipt of an order or even the keeping of an alcoholic beverage with intent to sell it. Finally such words were defined to include the delivery of an alcoholic beverage in the State to anyone, for the one to whom such delivery might be made was not specified.

Standard, a wholesaler, (Alcoholic Beverage Control Law, § 3, subd. 35) over a period of nine months accepted and placed upon its books, through its duly authorized employee and agent, orders for the sale and delivery of liquor (§ 3, subd. 19) to unlicensed retailers on Staten Island, New York City as follows:

(1) Between March 28, 1944, and August 14,-1944, six orders for one Piscopo, whose license had been revoked by the Authority in December, 1942.

(2) [a] Between March 28, 1944, and August 14, 1944, six orders for Alabama Club, Inc., 523 Tomkins Avenue, Rosebank, Staten Island, to which no license had ever been issued. A license had been issued at that address to one Migliore, but that license had been surrendered on November 8, 1943. [b] During the period from March 28,1944, to August 14, 1944, eight orders for Brass Rail, Inc., 4263 Hylan Boulevard, Great Kills, which had never been licensed. A license issued to one Andrzejak at that address had been surrendered on December 1, 1942.

(3) Eleven orders over an undisclosed period for Bill’s Wild Cat at 3292 Hylan Boulevard, Dongan Hills. It does not appear that a license had ever been issued under that name but one had been issued at 3291 Hylan Boulevard, etc., for Deacon Wilde Cat, Inc., which had been surrendered on October 1, 3 942. A new license was issued on August 8, 3944, to Vindvill’s Inc., at the same address.

(4) Between February 25, 1944, and April 18, 1944, three orders for one Peter Crane at premises for which there was no license in effect from January 1,1944, to April 30,1944, although for some undisclosed period there had been a summer license.

(5) Over a period from March 28,1944, to May 18,1944, three orders for one Leo Berna at premises which had been licensed for the sale of beer only.

(6) During tííe period from December 1, 1943, to August 14, 1944, ten orders for one Savoco, who had been unlicensed since March, 1942.

(7) On March 28,1944, one order for one Cornell, whose last license was a summer license for the year 1943.

Standard concedes that no check or inquiry was made by those in its (1) order department, (2) credit department, (3) shipping department or (4) delivery department for the purpose of learning whether the orders above mentioned were for licensees or for licensed premises. Standard concedes further that under the statute, “ if a sale or delivery is made to an unlicensed person it is wholly immaterial whether the sale was made through inadvertence, negligence or otherwise ” but argues that in this case there is ample proof in the record that petitioner took all reasonable precautions to prevent sales to unlicensed persons. It instructed the salesmen not to take orders from unlicensed customers. It instructed the drivers not to make deliveries to unlicensed premises and, except on C.O.D. orders where no question of credit was involved all license numbers were checked by the credit department.” (Emphasis supplied.)

Precautions and instructions to employees are no defense. As Standard itself phrased it they are immaterial. Standard was not doing business as a matter of right but as a matter of privilege under a license by the State. It was obligated by statute and agreement to take no orders for unlicensed persons and to make no deliveries to anyone other than licensed persons. Here it did both. That its salesman placed with it orders for liquor for unlicensed persons in order that with the connivance of a truck driver he might appropriate the liquor for himself, was no defense. The orders were for unlicensed persons and unlicensed premise^. The fact that the salesman was dishonest could not make the persons or premises licensed ones, nor constitute an excuse for not performing a statutory duty. A simple inquiry would have disclosed the absence of licenses. A conspiracy between the salesman and truck driver worked no change in the obligations of Standard. The orders remained orders for unlicensed persons and the deliveries to the truckman were deliveries for unlicensed persons and premises, and, upon conversion of the merchandise by the salesman and truck driver, were still deliveries to unlicensed persons. Both receipt and acceptance of the orders and the deliveries of the liquor constituted sales within the definition in the act {supra). While the failure here to employ honest and law-abiding salesmen was not available to Standard as an excuse for failure to check the orders upon its books, it should be pointed out that a reading of the Alcoholic Beverage Control Law in its entirety clearly discloses the legislative intent to put the burden of compliance and obedience upon a licensee such as Standard, since it conducts its business as a matter of favor and not as a matter of right. See especially section 2.

Finally, that Standard relied upon a distiller’s lists of licensees to whom beverages might be allocated during a shortage, and thus fell into the same errors as the distiller, was clearly no defense.

The question whether under section 118, subdivision 6, the license of Standard should have been revoked rather than suspended has not been argued and we do not pass upon it.

There was ample substantial and competent evidence to sustain the determination of the Authority and the order of the Appellate Division should be affirmed, with costs.

Loughran, Ch. J., Lewis and Thacher, JJ., concur with Dye, J.; Conway, J., dissents in opinion in which Desmond, J., concurs.

Order reversed, etc.


author: Per Curiam.

text:
    George A. Langan, as Trustee of Onondaga Litholite Company, Bankrupt, Respondent, v. First Trust & Deposit Company et al., Appellants, et al., Defendants.
    Argued October 2, 1946;
    decided November 14, 1946.

      H. Duane Bruce for First Trust & Deposit Company and others, appellants.
    Section 603 of the Civil Practice Act imposes no limitations on the Court of Appeals in reviewing the order appealed from.

      Lawson Barnes for Domark Corporation, appellant.

      Victor Levine for respondent.
    On the appeal taken by permission of the Appellate Division on a certified question the Court of Appeals must presume that all questions of fact were determined by the Appellate Division in favor of the respondent. (Civ. Prac. Act, § 603.)
   Per Curiam.

Neither in the order appealed from nor in the order granting leave to appeal to this court is there any statement by the Appellate Division that its decision was based solely on the question of law in the case and was not also the result of an exercise of discretion. In such circumstances, section 603 of the Civil Practice Act requires us to presume that the contrary is the fact. The appeals must therefore be dismissed, without costs on the ground that the question of law certified is not decisive of the correctness of the order appealed from (Civ. Prac. Act, § 589, subd. 3, cl. [b] Braunworth v. Braunworth, 285 N. Y. 151).

The appeals should be dismissed, without costs.

Loughran, Ch. J., Conway, Desmond, Thaoher, Dye and Fuld, JJ., concur; Lewis, J., taking no part.

Appeals dismissed. [See 296 N. Y. 834.]


author: Per, Curiam.

text:
    Hanna A. Verstandig, Respondent, v. Babbette Schlaffer, Individually and as Executrix of Wolfgang Schlaffer, Deceased, et al., Appellants.
    Argued October 10, 1946;
    decided November 14, 1946.

      Sol L. Firstenberg, Jacob Bromberg and John Dehler for appellants. I. Contracts of insane persons are voidable.

      (Matter of Long, 261 App. Div. 456, 287 N. Y. 449.) II. Contracts' of insane persons made before adjudication can be avoided only by the insane person on regaining his reason or after adjudication by his committee or by his personal representatives after his death. (Finch v. Goldstein, 245 N. Y. 300; Matter of McGuinness, 290 N. Y. 117; Matter of Frank, 283 N. Y. 106; Blinn v. Schwarz, 177 N. Y. 252; Hoadley v. Hoadley, 244 N. Y. 424; Ingraham v. Baldwin, 9 N. Y. 45; Martin v. Teachers' Retirement Bd. of City of N. Y., 269 App. Div. 115.) III. Where the parties may be placed in “ status quo ”, contract of a person of unsound mind will be rescinded. (Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541; McCarthy v. Bowling Green Storage & Van Co., 182 App. Div. 18; Blinn v. Schwarz, 63 App. Div. 25, 177 N. Y. 252.) IV. Plaintiff is not a “ bona fide ” purchaser for value and the case of Goldberg v. McCord, (251N. Y. 28) is clearly inapplicable. (Spicer v. Waters, 65 Barb. 227; Salmon v. Norris, 82 App. Div. 362.)

      H. Leonard King for respondent.
    I. An executed contract with an insane person before office found, is not void, but voidable, and such a contract is not even voidable as against a bona fide purchaser for value without notice of the incompetency. The respondent is such a bona fide purchaser. (Matter of Richard Beckwith, 3 Hun 443; Riley v. Albany Savings Bank, 36, Hun 513, 103 N. Y. 669; Haines v. Scott, 35 App. Div. 515; Goldberg v. McCord, 251 N. Y. 28.) II. Assuming, without conceding, that the parties can be placed in status quo, this does not, ipso facto, mean that the contract must be avoided. III. In order to have the contract set aside, it was incumbent upon defendants to have promptly offered to: rescind. (Little & Ives Co. v. Lamb Publishing Co., 108 Misc. 14; Castiglia v. Lucas, 132 Misc. 480.)
   Per, Curiam.

The contracts of a person of unsound mind, who has not been'judicially declared incompetent, are voidable at his election upon recovering his reason or at the- election of his committee or ¿personal representatives or heirs. (Finch v. Goldstein, 245 N. Y. 300; Smith v. Ryan, 191 N. Y. 452; Blinn v. Schwarz, 177 N. Y. 252; McCarthy v. Bowling Green Storage & Van Co., 182 App. Div. 18.) The power of avoiding such a contract may be exercised, at least against the other party thereto, even in the case of an executed contract which is fair and for the benefit of the incompetent and which has been made in good faith.and without notice of the incompetency, provided only that the party so executing it can be and is placed in statu quo. (Smith v. Byan, supra; Riggs v. American Tract Society, 84 N. Y. 330; Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541; McCarthy v. Bowling Green Storage & Van Co., supra.) Since defendants herein have offered to replace plaintiff in her original position, their counterclaim for rescission should not have been dismissed in the absence of a finding that the status quo cannot be restored.

The reference in Goldberg v. McCord (251 N. Y. 28, 32) to “ bona fide purchasers for value without notice of the incompetency ” relates to remote grantees and cannot be applied to the immediate parties to the contract.

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

Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ., concur.

Judgments reversed, etc. [See 296 N. Y. 997.]


text:
    Arturo T. Manrara et al., Appellants, v. Sara W. Murphy, Respondent, et al., Defendants.
    Argued October 3, 1946;
    decided November 14, 1946.

      Thomas A. Litsch for appellants.
    I. Plaintiffs’ second cause of action accrued in 1945 and is not barred. (Bergmann v. Lord, 194 N. Y. 70; Altman v. Finkel, 268 App. Div. 666, 295 N. Y. 651; Press Pub. Co. v. McGill, 136 N. Y. S. 177; Stevens Co. v. Maus, 155 App. Div. 249; Bank of United States v. Rosengarten, 175 Misc. 677.) II. The court below erred in holding, as a matter of law, that the plaintiffs are presumed to have known of this defendant’s fraud more than six years ago, and that the action is barred since the facts did not indicate, nor would diligent inquiry have. disclosed, her fraudulent intent. (Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290; Altman v. Finkel, 268 App. Div. 666, 295 N. Y. 651; Higgins v. Crouse, 147 N. Y. 411; Matter of Di Crocco, 170 Misc. 826; Ga Nun v. Palmer, 216 N. Y. 603; Baldwin v. Short, 125 N. Y. 553; Greenwald v. Wales, 174 N. Y. 140; Hanlock v. Eric, 23 F. Supp. 692; Pitcher v. Sutton, 238 App. Div. 291; Buttles v. Smith, 281 N. Y. 226; McKenzie v. Wappler Electric Co., Inc., 215 App. Div. 336; Hearn 45 St. Corp. v. Jano, 283 N. Y. 139; Erickson v. Quinn, 47 N. Y. 410; Seely v. Seely, 164 App. Div. 650; Calligari v. Sartori, 174 App. Div. 103, 219 N. Y. 655.) III. Prior to 1944, diligent inquiry would not have disclosed the fraud of this defendant. (Erickson v. Quinn, 47 N. Y. 410; Spallhols v. Sheldon, 148 App. Div. 573; Higgins v. Crouse, 147 N. Y. 411; Davison v. Heivitt, 106 P. 2d 733; Bailey v. Glover, 88 U. S. 342.) IV. The motion should have been denied because there is an issue of fact as to when discovery was made. (Hearn 45 St. Corp. v. Jano, 283 N. Y. 139; Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290; Rosenberg v. Rosenberg, 241 App. Div. 510; Dumbadze v. Lignante, 244 N. Y. 1; Flynn v. Royal Development Co., 37 N. Y. S. 2d 640, 265 App. Div. 592; Carmody v. Royal Development Co., 258 App. Div. 1032; Roulston v. Warner, 134 Misc. 459; Rosenberg v. Rosenberg, 241 App. Div. 510.)

      George I. Gross and Clayton B. Lush for respondent.
    I. The second alleged cause of action is harred by the Statute of Limitations. (Bergmann v. Lord, 194 N. Y. 70; Cary v. Koerner, 200 N. Y. 253; I. & T. N. Bank v. Quachenbush, 143 N. Y. 567; Baumler v. Ackerman, 63 Hun 40; Conyngham v. Duffy, 125 N. Y. 200; Hearn 45 St. Corp. v. Jano, 283 N. Y. 139.) II. The third alleged cause of action is barred by the Statute of Limitations. (Higgins v. Crouse, 147 N. Y. 411; Burhan v. Ex-Lax, Inc., 168 Misc. 735; Sielcken-Schwars v. American-Factors, Ltd., 265 N. Y. 239; Ectore Realty Co., Inc., v. Manufacturers Trust Co., 250 App. Div. 314; Klotz v. Angle, 220 N. Y. 347; Taft v. Wright, 47 How. Pr. 1, 59 N. Y. 656; Buttles v. Smith, 281 N. Y. 226; Rosen 45 St. Corp. v. Jano, 283 N. Y. 139; Werbelovsky v. Rosen, 260 App. Div. 222; Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290.)
   Per Curiam.

The appellants in their brief limit the appeal to so much of the judgment appealed from as “ dismisses the second and third causes of action in the amended complaint ”.

In connection with the second cause of action, we are concerned with the Statute of Limitations applicable to an action by a judgment creditor under section 1189 of the Civil Practice Act to reach property conveyed in fraud of creditors and to subject it to the satisfaction of his demand. Since no limitation of time for the commencement of such an action is specially prescribed by any statute, section 53 of the Civil Practice Act applies, and the time limited by that section is 61 ten years after the cause of action accrues.” Section 1189 of the Civil Practice Act provides that the judgment creditor may maintain the action when an execution against the property of the judgment debtor has been returned wholly or partly unsatisfied. The alleged fraudulent transfer was made prior to the return of execution unsatisfied on June 14, 1933, and accordingly the action accrued on that date. The present action was commenced on April 23, 1945, more than ten years thereafter. The fact that a second execution on the same judgment was returned unsatisfied on April 9, 1945 — less than ten years before the commencement of this action — did not revive the action, which “ accrued ” on June 14,1933, and was barred on June 14,1943.

The third cause of action is claimed to be an action for actual fraud which was not discovered hy the plaintiffs until less than six years before the action was commenced. Statements under oath made by one of the plaintiffs and hy plaintiffs’ counsel disclose that the fraud, if any, was known to the plaintiffs and their counsel more than ten years before the action was commenced.

We are constrained to conclude that the second and third causes of action were properly dismissed.

The judgment should he affirmed, with costs.

• Loughran, Oh." J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ., concur.

Judgment affirmed.


author: Thacher, J.

text:
    Clarence E. Smalley et al., Respondents, v. Forbes G. Hutcheon, as Administrator of the Estate of Bertha Hutcheon, Deceased, Appellant.
    Argued October 7, 1946;
    decided November 14, 1946.

      H. H. Brown, Raymond J. Scully and E. C. Sherwood for appellant.
    I. Plaintiffs have no right to maintain this action insofar as it concerns personal injuries as it is barred by the Illinois Statute of Limitations (Ill. Rev. Stat. ch. 83, § 15). II. There was no “ pendency of suit ” or Us pendens because there was no valid service of process upon the defendant administrator. (Gage v. Chicago Title & Tr. Co., 303 Ill. 273; Lyon v. Moore, 259 Ill. 23; Hallorn v. Trum, 125 Ill. 247; Grant v. Bennett, 96 Ill. 513; Morris v. Ile, 152 Ill. 190; Herb v. Pitcairn, 384 Ill. 237; Bank of Edwardsville v. Raffaele, 381 Ill. 486; Griffen v. County of Cook, 369 Ill. 380; Ohio Mil Ins. Co. v. Inter. Ins. Exch., 367 Ill. 45; Matter of Estate of Shanks, 282 Ill. App. 1; Gill v. Lynch, 367 Ill. 203; Herb v. Pitcairn, 384 Ill. 237; Schram
      v. Keane, 279 N. Y. 227; Erickson v. Macy, 236 N. Y. 412; Knox v. Beckford, 167 Misc. 200, 258 App. Div. 823, 285 N. Y. 762.) III. Even if the filing of the complaint without service of process could be viewed as a pending action, plaintiff was not “ non-suited ” within the meaning of section 24a of the Illinois Statute of "Limitations. (Sehnert v. Schipper & Block, Inc., 168 Ill. App. 245; Holmes v. C. & A. R. R. Co., 94 Ill. 439; Boyce v. Snow, 187 Ill. 191; Kouch v. Sheppard, 223 Ill. 172.)

      Sydney A. Syme for respondents.
    I. The Illinois Statute of Limitations does not bar the prosecution of this action. (Ill. Rev. Stat. [1941], ch. 83, § 24a.) II. The action was “ commenced ” in the Illinois court. III. Plaintiffs were “non-suited ” within the meaning of section 24a of the Illinois Statute of Limitations. (Sachs v. Ohio Nat. Life Ins. Co., 131 F. 2d 134.)
   Thacher, J.

This is an action by a husband-and wife, nonresidents of this State, to recover from the administrator of a decedent damages suffered by them when the automobile in which they were riding came into collision, on one of the highways of the State of Illinois, with a motor car driven by the defendant’s intestate. Judgments upon verdicts of the jury in favor óf the plaintiffs were affirmed below and are brought here for review by the defendant administrator, whose only contention is that the action- is barred by the Statute of Limitations.

The accident occurred on September 29,1941, and defendant’s intestate died a few hours thereafter. Letters of administration upon her estate were issued to the defendant by the Surrogate of Queens County in the State of New York where she resided at the time of her death. On July 24,1942, less than a year after the accident occurred, plaintiffs filed a complaint in an action against Forbes G. Hutcheon, as administrator of Bertha Hutcheon, deceased, and caused a summons to be issued in the Circuit Court of Illinois and delivered to the Secretary of State of Illinois. This, it is claimed, was authorized by section 20a of the Motor Vehicle Law of that State (Ill. Rev. Stat., ch. 95%, § 23). Under this Illinois statute, which is similar to section 52 of the Vehicle and Traffic Law-of New York, the operation of a motor vehicle over the highways of that State by a non-resident is given legal effect as an appbintment of the Secretary of State to act as attorney for the acceptance of service of legal process in any action against the operator arising out of the operation of a motor car within the State. The statute requires service of the process upon the secretary, together with a bond to reimburse the successful defendant for expenses of coming to the State to defend the action. The service is not sufficient, however, unless within ten days a notice of such service and a copy of the process are sent by registered mail to the defendant at his or her last known address.

In this case there was no process directed to the operator of the car. She died before any complaint was filed and the complaint subsequently filed named her husband, as her administrator, as defendant. Thereafter he, as administrator, appeared specially and moved to quash the service. Limiting his appearance to that purpose, he put the motion to quash upon the ground that as a foreign administrator service upon him was not authorized and the court had no jurisdiction over his person. His motion to quash was granted upon the ground that the statute did not authorize ” service of process upon the executor or personal representative of a non-resident owner or operator in an action against such owner’s or operator’s estate. The court concluded: The motion to quash the service is granted, and the service is quashed. Since the disposition of the motion is decisive of the right of plaintiffs to bring this suit in this state, the complaint is therefore dismissed at plaintiffs’ cost. Judgment against plaintiffs for costs. Execution awarded.”

The present action against the administrator was commenced by personal service of the summons and complaint on the defendant within this State on March 22, 1944. The single question presented upon the appeal is whether the action is barred by the Statute of Limitations. Where a cause of action arises outside of this State in favor of a non-resident, an action to enforce it may not be brought in a court of this State after the expiration of the time limited for bringing such an action either by the laws of this State or by the laws of the State where it arose (Civ. Prac. Act, § 13). Actions to recover damages for personal injury resulting from negligence can be brought in New York within three years after the cause of action has accrued (Civ. Prac. Act, § 49, subd. 6). In Illinois the time within*which such an action must be begun is two years after the action has accrued (Ill. Rev. Stat., ch. 83, § 15). The cause of action accrued on September 29, 1941, the date of the accident, and this action was not commenced until March 22, 1944, after the two-year Statute of Limitations had expired. In this situation the plaintiffs seek refuge under the terms of section 24a of the Illinois Statute of Limitations (Ill. Rev. Stat., ch. 83, § 24a): “ In any of the actions specified in any of the sections of this act, if judgment shall be given for the plaintiff, and the same be reversed by writ of error, or upon appeal; or if a verdict pass for the plaintiff, and, upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or, if the plaintiff be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors, or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after. ’ ’

As the Illinois court held in quashing the service, the statute did not authorize service upon an administrator acting under letters issued in a foreign State. In the absence of statute, it is well established in Illinois that foreign administrators in their official capacity can neither sue nor be sued outside of the State from which they derive their authority and that the grant of the right of administration does not confer authority to appear and defend actions in other States or to go into any other jurisdiction and there permit claims to be adjudicated against the estates under their administration. Accordingly, it has been held in Illinois that even where the administrator appears in an action in a foreign State the judgment resulting is not binding on the estate (Judy v. Kelley, 11 Ill. 211, cited with approval in Dickinson v. Belden, 268 Ill. 105, 110, and in Kiting v. First Nat. Bank, 173 111. 368, 388). We do not pause to consider what actions against foreign administrators may be authorized by the States from which they derive their powers or whether actions thus authorized may be maintained in a State having no jurisdiction predicated either upon the domicile or the situs of assets of the decedent (see Helme v. Buckelew, 229 N. Y. 363; Baldwin v. Powell, 294 N. Y. 130). In this ease no statute of either State authorized the action in Illinois.

May this abortive action nevertheless be said to have extended the period of limitation within which the suit now pending in this State could be commenced? The answer depends upon whether the action in Illinois was commenced and was pending ” within the meaning of section 24a of the Illinois statute quoted (supra). There was no power to bring the administrator before the court nor could he by voluntary appearance subject himself to the jurisdiction of the court (Judy v. Kelley, supra). The court lacked jurisdiction not only of plaintiffs’ claim but of defendant’s person as well, and the statutory procéss directed against the individual operator was not available against the administrator.

It follows that the plaintiffs’ procedure, in filing their complaint against a foreign administrator, issuing process thereon to the Secretary of State and mailing copies thereof to the defendant, was without any legal sanction whatever. In a word, the attempt to commence the action was illegal. No action was commenced and none was pending against the defendant within the time limited by statute. What was done had no force, no effect and authorized nothing. Our decision in Erickson v. Macy (236 N. Y. 412) is controlling. In Gaines v. City of New York (215 N. Y. 533) the action relied upon to extend the statute was begun by actual service. It failed thereafter because the court had no jurisdiction to entertain an action against the City of New York. Dismissal on that ground did not render void all the prior proceedings in the action. In the instant case there was no validity in anything that was done before or after the unauthorized and abortive service of process, and the dismissal of the complaint at plaintiffs’ cost did not and could not validate plaintiffs’ abortive attempt to commence an action which they had no right to commence. The allowance of costs against the plaintiffs was expressly upon the ground that they had no right to bring the suit in Illinois. The facts in this case clearly mark the distinction between the Erickson case and the Gaines case (supra).

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

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Judgments reversed, etc.