author: Conway, J. Loughran, J.

text:
    Warren Walters, Respondent, v. Rao Electrical Equipment Co., Inc., Appellant, and Psaty & Fuhrman, Inc., Respondent.
    Argued January 13, 1942;
    decided July 29, 1942.

      Olin S. Nye, Brendan C. Kelly, Malcolm G. Bibby and Reginald V. Spell for appellant.
    Defendant-respondent was actively and concurrently negligent and, therefore, not entitled to indemnity at common law. (Sweet v. Perkins, 196 N. Y. 482; Employers’ Liability Assurance Corp. v. Post & McCord, Inc., 286 N. Y. 254; Bohlen on The Law of Torts, pp. 293-294; Petkinic v. Eidlitz & Son, 241 App. Div. 720; 266 N. Y. 437.) The indemnity clause does not clearly and unequivocally agree to indemnify defendant-respondent for its own active and concurrent negligence. (Dudar v. Milef Realty Corp., 258 N. Y. 415; Petkinic v. Eidlitz & Son, 241 App. Div. 720; 266 N. Y. 437; Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 34; Employers’ Liability Assur. Corp. v. Post & McCord, Inc., 261 App. Div. 242; 286 N. Y. 254.)

      Samuel Saline for Rao Electrical Equipment Co., Inc., amicus curiæ.

    The active negligence of respondent combined with the negligence of appellant to cause the accident. (McNamara v. Eastman Kodak Co., 220 N. Y. 180; Drummond v. Norton Co., 156 App. Div. 126; 213 N. Y. 670; Berla v. Zambetti, 235 App. Div. 464; Caminiti v. Mathews Constr. Co., 241 App. Div. 879; Caspersen v. La Sala Bros., 253 N. Y. 491; Employers’ Liability Assur. Corp. v. Post & McCord, 286 N. Y. 254; Williams v. Board of Trustee, 210 App. Div. 161; Fulton County General Electric Co. v. Hudson River Tel. Co., 200 N. Y. 287; Sweet v. Perkins, 196 N. Y. 482; Haverstick v. Hansen & Sons, Inc., 277 N. Y. 158.) As between parties concurrently and actively negligent, no right of indemnity exists. (Ocean Steam Navigation Co. v. Compania Transatlantic Espanola, 144 N. Y. 663; City of White Plains v. Ellis, 113 Misc. Rep. 5; Booth v. Carleton Co., 236 App. Div. 296; Rosenman v. Detz, 259 App. Div. 911; Eifert v. U. S. Fidelity & Guaranty Co., 261 App. Div. 1081.) Appellant agreed to indemnify respondent, the general contractor, only against appellant’s own acts of negligence. (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36; North American Ry. Constr. Co. v. Cincinnati Traction Co., 172 Fed. Rep. 214; Petkinic v. Eidlitz & Son, Inc., 241 App. Div. 720; 266 N. Y. 437; Swift & Co. v. Stewart & Co., 261 App. Div. 930; Washington & Berkeley B. Co. v. Pennsylvania S. Co., 215 Fed. Rep. 32; McGlove v. Augus, Inc., 248 N. Y. 197.)

      Desmond T. Barry, Edward A. Shandell and Clarence B. Tippett for respondent.
    The defendant-respondent was entitled to have its cross-claim against the -defendant-appellant sustained on the basis of the common law right of indemnification since appellant was the active and direct wrongdoer and respondent was the passive wrongdoer and on the basis of the indemnity agreement which imposed responsibility for the accident that occurred in the course of the work solely upon appellant. (Callan v. Pugh, 54 App. Div. 545; Scott v. Curtis, 195 N. Y. 424; Dudar v. Milef Realty Corp., 258 N. Y. 415; Phœnix Bridge Co. v. Creem, 102 App. Div. 354; 185 N. Y. 580; Oceanic Steam Navigation Co. v. Compania Transatlantic Espanola, 134 N. Y. 461; Interborough Rapid Transit Co. v. City of New York, 237 App. Div. 612; 262 N. Y. 612; American Employers’ Ins. Co. v. Brandt Masonry Corp., 252 App. Div. 506; Washington Gas Light Co. v. District of Columbia, 161 U. S. 316; Koch v. Fox, 71 App. Div. 288; Turner Constr. Co. v. Rockwood Sprinkler Co., 249 App. Div. 508; 275 N. Y. 635; Long Island R. R. Co. v. American Bridge Co., 175 App. Div. 170; 225 N. Y. 692; Westinghouse, Church, Kerr & Co. v. Long Island R. R. Co., 160 App. Div. 200; 216 N. Y. 697.)
   Conway, J.

Plaintiff sued Psaty & Fuhrman, Inc., hereinafter called general contractor and Rao Electrical Equipment Co., hereinafter called sub-contractor for personal injuries alleged to have been sustained through their negligence. The general contractor served a cross-complaint against the sub-contractor upon an indemnity agreement to which reference will be made hereafter. The jury rendered a verdict against both defendants and the trial court thereafter dismissed the cross-complaint. The Appellate Division affirmed the judgment for plaintiff against the two defendants but reversed the order of the trial court dismissing the cross-complaint.

Plaintiff was employed as a riveter by a third contractor and at the time he suffered his injuries was engaged in work at the base of a column on the ground floor of a building which was being erected at the World’s Fair in Queens County. A piece of pipe used as a conduit for electric wiring fell from the hand of an employee of the sub-contractor at work on the floor above. Harm would not have come to the plaintiff, however, had the general contractor thoroughly planked over the steel beams upon which the structural steel work was being erected.

The Labor Law (Cons. Laws, ch. 31), section 241, subdivision 4, provides: “ All contractors * * * when constructing * * * buildings * * * shall comply with the following requirements: *******

“ 4. If the floor beams are of iron or steel, the entire tier of iron or steel beams on which the structural iron or steel work is being erected shall be thoroughly planked over to not less than six feet beyond such beams, except spaces seasonably required for proper construction of the iron or steel work, for raising or lowering of materials or for stairways and elevator shafts designated by the plans and specifications.”

There had not been compliance with that subdivision by the general contractor. On the contrary, a four inch space adjacent to the column had been left unplanked. It was through that opening that the piece of pipe descended upon the plaintiff.

The contract of indemnity entered into between the general contractor and the sub-contractor contained the following clause: “22. Should any person, or-persons, or property be damaged or injured by the Subcontractor, or by any person, or persons, employed under him, in the course of the performance by him of this agreement or otherwise, whether by negligence or otherwise, said Subcontractor shall alone be liable, responsible and answerable therefor, and does hereby agree, to and with the said Contractor, to hold harmless and indemnify the Contractor of and from all claims, suits, actions, costs, counsel fees, expenses, damages, judgments or decrees by reason thereof.” (emphasis supplied.)

The underlined words clearly indicate that the clauses of which they are a part were modified by that portion of the paragraph in which the sub-contractor assumed liability for the acts of any person employed by him which should result in injury or damage to person or property. The underlined words would be meaningless unless the liability of the sub-contractor were subject to that qualification and construction. Any intention to extend the liability of the sub-contractor beyond that limit, clearly defined in the quoted paragraph, would have had to be unequivocally expressed. No such intention is here revealed. The sub-contractor was not hable for the negligence of the general contractor even though concurrent. (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36, 41.) There we pointed out, citing cases: “ It is a general rule long established that contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms.”

The failure of the general contractor thoroughly to plank over the steel beams was a breach of a primary non-delegable duty. (Employers’ Liability Assur. Corp. v. Post & McCord, Inc., 286 N. Y. 254, 264.) In that case we said: “ The court charged the Graziano jury as matter of law, upon the record there presented, that it was the active duty of the general contractor, if the space required covering, to cover over the floors. The charge was right (Lyles v. Terry & Tench Co., 227 N. Y. 361; De Haen v. Rockwood Sprinkler Co., 258 N. Y. 350; Caspersen v. La Sala Bros., supra; Labor Law, § 241); but right or wrong, that instruction is here beyond attack. If a proximate cause of the accident, violation of the statute, as the court correctly charged, was actionable negligence and violas tion of the ordinance evidence to be considered with other evidence on the question of negligence. (Teller v. Prospect Heights Hospital, 280 N. Y. 456, 460, 461. Cf. Schmidt v. Merchants Despatch Transp. Co., 270 N. Y. 287, 306.) Whether the general contractor performed its active primary duty in that respect and whether the failure to do so, if there was such failure, was the sole proximate cause of the accident or a concurring cause without which the accident could not have happened were questions of fact for the jury (Lyles v. Terry & Tench Co., supra; De Haen v. Rockwood Sprinkler Co., supra).”

The general contractor and the sub-contractor were joint active tort feasors. (Thompson-Starrett Co. v. Otis Elevator Co., supra; pp. 40, 43, 44.) The case of Dudar v. Milef Realty Corp., 258 N. Y. 415), is not in conflict. There there was no defect in the hod hoist and no violation of statutory obligation with reference to it. It was the negligent operation of the hoist which constituted the active negligence. In the case of Turner Construction Co. v. Rockwood Sprinkler Co. (275 N. Y. 635), the sub-contractor defendant by its agreement (1) assumed entire responsibility and liability in and for any and all damages for injury of any kind or nature whatever to all persons, whether employees or otherwise, caused by or resulting from the execution of the work provided for in the agreement, or occurring in connection therewith, and (2) agreed to indemnify and save harmless the general contractor Turner from and against any and all loss, expense, damage or injury caused or occasioned directly or indirectly by the act or negligence of the sub-contractor or resulting from the use by the sub-contractor of any materials, tools, implements, appliances, scaffolding, ways, works or machinery or other property of Turner, whether the same arose under the common law or otherwise. Recovery was properly had by the general contractor under the terms of that agreement. In the case of Petkinic v. Eidlitz & Son, Inc. (266 N. Y. 437), there was, as here, affirmative active negligence of both the general contractor and the sub-contractor.

The judgment should be modified to the extent of dismissing the cross-complaint of the general contractor against the subcontractor and, as so modified, affirmed, with costs to the appellant.

Loughran, J.

(dissenting.) Active misconduct of the defendant sub-contractor was the affirmative cause of the plaintiff’s injuries. Liability of the codefendant general contractor was the result of omission of its secondary duty to protect the plaintiff from such violence. (See De Haen v. Rockwood Sprinkler Co., 258 N. Y. 350, 352.) Indemnity is given to the person morally innocent but

legally liable, as against the actual wrongdoer whose misconduct has brought the liability upon him.” (Bohlen, Studies in the Law of Torts, p. 512.) From that point of view, the contract between the codefendants required the defendant sub-contractor to indemnify the defendant general contractor against the claim of the plaintiff, as the Appellate Division held.

Rippey, Lewis and Desmond, JJ., concur with Conway, J.; Loughran, J., dissents in opinion in which Lehman, Ch. J., and Finch, J., concur.

Judgment accordingly.


source: Caselaw Access Project

author: Conway, J.

license: Public Domain

text:
    Abraham Wilkes, Appellant, v. Equitable Life Assurance Society of the United States, Respondent.
    Argued March 17, 1942;
    decided July 29, 1942.

      Copal Mintz for appellant.
    Even if the defendant be entitled to recover the sum of money which it had paid -under the last three policies, the provisions for the collection thereof out of the disability payments payable under the first six and uncontested policies, violate provisions of the Insurance Law (Cons. Laws, ch. 28). (Morris v. Windsor Trust Co., 213 N. Y. 27; Coffin v. McLean, 80 N. Y. 560; Pink v. Title Guaranty & Trust Co., 274 N. Y. 167; Fistere v. Janapoll, 241 App. Div. 353; Matter of People [Consolidated Indemnity & Ins. Co.], 287 N. Y. 34; Columbian Nat. Life Ins. Co. v. Hirsch, 267 N. Y. 605; Archer v. Equitable Life Assur. Society, 218 N. Y. 18; Groonstad v. Robbins Dry Dock and Repair Co., 236 N. Y. 52.)

      James D. Ewing and William R. McDermott for respondent.
    The defendant is entitled to offset the total of the disability income benefits paid on the policies issued with such benefits as the result of plaintiff’s false representations against those incomes accrued and to accrue under the valid policies. (Pink v. Title Guarantee & Trust Co., 274 N. Y. 167; Caldwell v. Ryan, 210 Mo. 17; Matter of People [Consolidated Indemnity & Ins. Co.], 287 N. Y. 34; Belden v. State, 103 N. Y. 1; Hodson v. New York City Employees’ Retirement System, 243 App. Div. 480; Zwingmann v. Zwingmann, 150 App. Div. 358; Wetmore v. Wetmore, 149 N. Y. 520; Weigold v. Weigold. 236 App. Div. 126.)
   Conway, J.

This action was instituted to recover disability benefits under nine life insurance contracts. The disability of plaintiff was conceded and no defense was interposed as to six of the policies. The defendant alleged by way of defenses and counterclaims that the issuance of the disability provisions of the other three policies had been procured by false and untrue representations. Those defenses and counterclaims were established. The judgment rescinded the disability provisions in the three policies, declared them lapsed for non-payment of premiums (those which would have been properly waived during disability had there been no falsity of representation), awarded. defendant $12,300 for disability payments theretofore made, less the disability payments due plaintiff on the six unchallenged policies and costs and authorized the defendant to apply future disability benefits on those six policies toward satisfaction of the judgment. The Appellate Division modified by providing that the three policies should lapse only if the accrued premiums were not promptly paid and by correcting a mathematical error in the amount of the judgment.

We find merit in but one of appellant’s contentions. The defendant may not be permitted to collect its money award out of the disability benefits already due or as they become due under the six uncontested policies. That would be violative of chapter 626 of the Laws of 1934, now in substance embodied in subdivisions 2 and 5 of section 166 (formerly § 55-b) of the Insurance Law (Cons. Laws, ch. 28), providing that no disability benefits “ shall be liable to execution, attachment, garnishment, or other process, or to be seized, taken, appropriated or applied by any legal or equitable process or operation of law, to pay any debt or liability of such insured person * *

The judgment should be modified in accordance with this opinion and as so modified affirmed, with costs to the appellant.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur.

Judgment accordingly.


author: Per Curiam.

text:
    Edward Hayton, an Infant, by Joseph Hayton, His Guardian ad Litem, et al., Appellants, v. Mary M. McLaughlin et al., Respondents.
    Argued April 30, 1942;
    decided July 29, 1942.

      Sidney J. Feltenstein for appellants.
    There was evidence from which the jury could have found that the defendants were guilty of the maintenance of a nuisance. (Shaw v. City of New York, 279 N. Y. 666; Kirschenbaum v. Oschuetz, 261 N. Y. 519; Feinman v. Rubenstein, 264 N. Y. 662; O’Rourke v. Castagnola, 242 App. Div. 638; Bland v. Kaufman, 249 App. Div. 842; Heeg v. Licht, 80 N. Y. 579; Landau v. City of New York, 180 N. Y. 48; Cohen v. City of New York, 113 N. Y. 532.)

      William C. Chanter, Corporation Counsel (Oren Clive Herwitz and Paxton Blair of counsel), for City of New York, respondent.
    The city may legally permit an abutting lot owner to use as a courtyard a portion of the dedicated street area not presently needed for pedestrian travel. This constitutes a proper and traditional street use, which, carries with it the right to fence in the courtyard for its protection and preservation. Therefore, in the absence of proof that the fence was intrinsically dangerous or negligently maintained, the city could not be guilty of maintaining a nuisance either in law or in fact. (Tymon v. M. L. S. Constr. Co., 262 N. Y. 161; City of New York v. Masten, 174 App. Div. 661; 223 N. Y. 638; Linton v. Coupe, 138 App. Div. 519; Dougherty v. Village of Horseheads, 159 N. Y. 154; Robert v. Powell, 168 N. Y. 411; McCloskey v. Buckley, 223 N. Y. 187; Lyman v. Village of Potsdam, 228 N. Y. 398; Matter of Green v. Miller, 249 N. Y. 88; Denton v. State of New York, 72 App. Div. 248; Jewish Hospital of Brooklyn v. “ John Doe,” 252 App. Div. 581; Parsons Brothers v. City of New York, 107 App. Div. 324; 184 N. Y. 604; Mecca Realty Co. v. Kellogg Toasted Corn Flakes Co., 166 App. Div. 74; 221 N. Y. 724.)

      Edward T. Costello for Mary M. McLaughlin respondent.
    There was no proof that the individual defendant was negligent. (Greiner v. City of Syracuse, 228 App. Div. 566; 256 N. Y. 688; Horton v. City of New York, 213 App. Div. 172; McCloskey v. Buckley, 223 N. Y. 187; Cameron v. Purdue Realty Corp., 231 App. Div. 149; Robert v. Powell, 168 N. Y. 411.)
   Per Curiam.

This case was tried upon the theory that it was one of nuisance growing out of negligence. That is a well settled cause of action in this state. Khoury v. County of Saratoga (267 N. Y. 384), and cases there cited. Since that was the theory of the trial and the basis upon which the case was submitted to the jury under a charge to which no exception was taken, the classifications in the majority opinion in the court below are not applicable. The Adminsitrative Code of the City of New York (L. 1937, ch. 929), section C26-233.0, permits the maintenance of such parts of a structure as project beyond the building line until removal is directed. That section is applicable to non-da ngerous encroachments existent at the time of the passage of the Code. The encroachment in this instance was eight feet long by fifteen feet, five inches wide and was enclosed by an eighteen-inch wire fence. It was not a nuisance as a matter of law. The city properly states its position as follows: “ While we believe that the foregoing authorities clearly hold that a fence around a courtyard within the street area is not per se a nuisance, we do not wish to be understood, as arguing that such a fence could, under no circumstances, be found to be a nuisance as a question of fact. On the contrary, we think it is clear that where, from the evidence, a jury may find that the nature or condition of the fence is dangerous to those lawfully using the sidewalk, or where, from the evidence, a jury may find that the remaining sidewalk area is inadequate for pedestrian travel, the question of whether the fence is a nuisance in fact is properly one for the jury.” The city may not permit the maintenance of a structure or purpresture in the highway which is foreseeably dangerous, by reason of its form or character, to adult pedestrians or children at play. It was a question of fact for the jury whether the eighteen-inch wire guard or fence in question constituted a substantial foreseeable danger to children playing games. (Shaw v. City of New York, 253 App. Div. 924; affd., 279 N. Y. 666.)

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

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


text:
    The People of the State of New York, Appellant, v. Abraham Moskowitz, Respondent.
    Argued June 17, 1942;
    decided July 29, 1942.

      John J. Bennett, Jr., Attorney-General (Everett D. Mereness, Henry Epstein and Patrick H. Clune of counsel), for appellant.

      James Kiley and Salvatore J. Leombruno for respondent.
   Per Curiam.

It does not appear “ affirmatively in the body of the order that the court below has exercised its power to review the facts, and that, being satisfied with the judgment in that respect, the reversal was ordered for error of law alone.” (People v. Redmond, 225 N. Y. 206, 208.) For that reason we cannot review the order. Even if we find in the opinion of the court indications that the reversal is on the law, this court cannot review the order of reversal. (People v. Redmond, 225 N. Y. 206; People v. Radcliffe, 231 N. Y. 634; People v. Bergman, 252 N. Y. 346; People v. Kuland (266 N. Y. 1.) Since the enactment of section 543-a of the Code of Criminal Procedure, a statement in an order of reversal of the Appellate Division that the reversal is for error of law creates a presumption that the Appellate Division reviewed the facts and was satisfied with the conviction in that respect.” We think that a similar statement by the County Court creates the same presumption. There is, however, no such statement in the order of the County Court here.

The appeal should be dismissed unless the County Court shall grant a motion, made within twenty days, to resettle its order of reversal so as to show that the judgment of the City Court was reversed upon the law.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


text:
    Elizabeth Wolfson, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    Argued June 18, 1942;
    decided July 29, 1942.

      Harris Jay Griston and Alexander Schwartz for appellant.
    Whether the death was due to the accident of a fall on the slippery, icy sidewalk, or to a purported heart condition presented a question of fact for the jury. (Sagendorf v. Prudential Ins. Co., 249 App. Div. 687; MacNair v. Commercial Travelers Ins. Co., 249 App. Div. 732; 275 N. Y. 630; Slavin v. Metropolitan Life Ins. Co., 249 App. Div. 805; Breese v. Fidelity & Casualty Co., 247 App. Div. 850; Thurber v. Commercial Travelers Ins. Co., 51 App. Div. 608; Wachtel v. Equitable Life Assur. Society, 241 App. Div. 172; Larkin v. InterState Casualty Co., 43 App. Div. 365; Kay v. Travellers Ins. Co., 242 App. Div. 798; 266 N. Y. 671; Jensen v. Commercial Travelers Ins. Co., 247 App. Div. 835; Loewenthal v. Commercial Travelers Mut. Acc. Assn., 253 App. Div. 583.)

      William B. Moore for respondent.
    Because a verdict in favor of the plaintiff would have been unsupported by the evidence, the trial court was required to direct a verdict in favor of the defendant. (Smith v. Massachusetts Bonding & Ins. Co., 207 App. Div. 682; 241 N. Y. 558; McMartin v. Fidelity & Casualty Co., 264 N. Y. 220; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Collins v. City of New York, 185 App. Div. 586.)
   Per Curiam.

The evidence presented an issue of fact as to whether or not the insured died as the result of a pre-existing heart condition.

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

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


author:
      Per Curiam.
     Lewis, J.

text:
    The People of the State of New York, Respondent, v. Joseph Greenberg and Fred Graf, Appellants.
    Argued June 4, 1942;
    decided July 29, 1942.

      Abraham Wilson and Daniel J. McMahon for appellants.
    The trial court charged the jury that the code agreement was a legal, valid and enforceable instrument. Appellants should not have been convicted, nor should the case have been submitted to the jury unless it had been established that they used the code as an instrument of oppression. (People v. Powell, 63 N. Y. 88; People v. Friedlander, 280 N. Y. 437; People v. Flack, 125 N. Y. 324; Cuyler v. McCartney, 40 N. Y. 221; People v. O’Farrell, 175 N. Y. 323; People v. Miles, 123 App. Div. 862; 192 N. Y. 541; Minner v. United States, 57 Fed. Rep. [2d] 506.)

      Charles P. Sullivan, District Attorney (James F. T. Delaney of counsel), for respondent.

      (Schechter Poultry Corp. v. United States, 295 U. S. 495.) The evidence justified the jury’s finding as to the appellants’ guilt of the crimes of extortion and their conviction thereof is warranted in law. (People v. Barondess, 133 N. Y. 649; People ex rel. Short v. City Prison, 145 App. Div. 861; 206 N. Y. 632 ; People v. Hughes, 137 N. Y. 29; People v. Weinseimer, 117 App. Div. 603; 190 N. Y. 537.)
   Per Curiam.

Under the law of the case as established by the charge of the trial judge the evidence was insufficient to sustain a conviction of either defendant of the crime of extortion or of conspiracy to commit extortion under any of the counts of the indictment as framed.

The judgments should be reversed and a new trial ordered.

Lewis, J.

(dissenting). There is in the record evidence from which the jury could have found that one Albert Miller obtained a small sub-contract in connection with a plumbing installation project at Rockaway Beach Playground; that he employed only union men on the work; that unknown to him a voluntary code,” since abandoned, had been entered into between the Association of Master Plumbers of the City of New York Queens-borough Project, Inc., and two local unions respecting wages, hours of employment and other matters bearing upon their mutual relations; that the code provided that in connection with each plumbing contract of $500 or more obtained by a subscriber of the code, one and one-half per cent of the contract price had to be paid to the Plumbing Code Committee by the subscriber before work on the contract could be prosecuted; that upon payment of such percentage a green card ” was issued to the subscribing contractor; that the appellants, without authority from any union, threatened to pull ” the union men from Miller’s sub-contract work at Rockaway Reach unless he signed the code, paid the required amount and thereby became entitled to a green card;” that when Miller remonstrated, his union employees — who were then receiving union wages and were working under union regulations with no complaint — left his employ. From the foregoing and related evidence the jury could find that the sum of $120, thus paid to the Plumbing Code Committee, was obtained from Miller with his consent but as a result of fear on his part induced by the threat of the appellants to prevent work progress upon his sub-contract at Rockaway Beach Playground. I find no evidence to sustain the convictions of the appellant Greenberg under the first count of the indictment. I dissent from the decision in so far as it reverses the judgments of conviction against the appellants on the third, sixth and seventh counts.

Lehman, Ch. J., Loughran, Rippey and Desmond, JJ., concur in Per Curiam opinion; Lewis, J., dissents in memorandum in which Finch and Conway, JJ., concur.

Judgments reversed, etc.


author: Finch, J.

text:
    In the Matter of Harry Lipman, Doing Business as Acme Shellac Products Company, Respondent. Haeuser Shellac Company, Inc., Appellant.
    Argued February 26, 1942;
    decided July 29, 1942.

      Edward A. Alexander for appellant.
    There was no agreement in writing between the appellant and Lipman and hence compulsory arbitration could not be had (Civ. Pr. Act, §§ 1449, 1450). (Paige v. Faure, 229 N. Y. 114.) The making of the contract was not only denied but evidentiary facts submitted showing that it did not exist, and the Special Term properly left that issue to the jury, as well as the issue of cancellation. (Matter of Japan Cotton Trading Co. v. Farber, 233 App. Div. 354; Finsilver, Still & Moss v. Goldberg M. & Co., 253 N. Y. 382; Matter of Engel v. Weintraub, 242 App. Div. 505; Lewis v. Houlberg, 220 App. Div. 762; Matter of Marchant v. Mead-Morrison M. Co., 252 N. Y. 284; Samuels v. Samis, 124 Misc. Rep. 35; Matter of Ermolieff v. Liss, 140 Misc. Rep. 214; Matter of Young v. Crescent Development Co., 240 N. Y. 244.) The refusal of the appellant to arbitrate an alleged controversy arising between Lipman and the appellant, was fully justified, as not being a controversy within the scope or contemplation of the arbitration agreement. (Matter of Buxton v. Mallery, 245 N. Y. 337; Matter of Young v. Cresent Development Co., 240 N. Y. 244.) The petition does not allege facts to show the existence of any controversy between the parties. (Matter of Bernstein [Abrams], 176 Misc. Rep. 563; Matter of Webster v. Van Allen, 217 App. Div. 219.)

      Julius Zizmor and Frank Zizmor for respondent.
    Petitioner, as assignee may compel the appellant to submit to arbitration in accordance with the terms of the contract of September 18, 1940. (Matter of Lowenthal, 199 App. Div. 39; 233 N. Y. 621; Matter of Hosiery Mfrs. Corp. v. Goldston, 238 N. Y. 22; Gargiulo v. California Wineries & Distilleries, 103 Misc. Rep. 691.) Inasmuch as appellant concedes the making of the contract of September 18, 1940, and its failure to proceed to arbitration in accordance with the provisions thereof, the order appealed from properly directed that the appellant proceed to arbitration without the necessity of a trial of alleged preliminary issues. (Matter of King-Varick Corp., 129 Misc. Rep. 645; Matter of Bullard v. Grace Co., 240 N. Y. 388; Matter of Wilkins, 169 N. Y. 494; Matter of Pierce v. Brown Buick Co., 258 App. Div. 679.) A controversy exists which should be submitted to arbitration. (Hipple v. Melachrino, 159 App. Div. 741; Matter of Wenger & Co. v. Propper I. H. Mills, 239 N.Y. 199.)
   Finch, J.

The petition alleges that on September 18,1940, Acme Shellac Products Corp., hereinafter referred to as-Acme, entered into a written contract with the Haeuser Shellac Company, Inc., hereinafter referred to as Haeuser, by which Haeuser agreed to sell and deliver to Acme 150 barrels of bone dry white shellac at twenty-three cents per pound, delivery by December 31, 1940. The contract contained the following clause: Any and all controversies in connection with, and /or arising out of, this contract shall be exclusively settled by arbitration by the Arbitration Committee of the American Bleached Shellac Manufacturers Association, Inc., in accordance with the rules of said Association.” Petition also alleges that Haeuser failed and refused to deliver, although demand was duly made.

On October 1, 1940, Acme entered into a new contract with Haeuser for the sale of 150 barrels of shellac to Acme at twenty-two cents a pound. This contract was sent to Acme by Haeuser enclosed in a letter which read:

“ We are enclosing herewith our contract in duplicate covering your purchase of 150 barrels of bone dry white shellac.
“ Will you please sign both copies and return for our signature. We will then send you one copy for your files. * * *
Yours very truly,
HAEUSER SHELLAC COMPANY, INC.”

Haeuser claims that this contract of October 1, 1940, by agreement of the parties, was substituted in place of the contract dated September 18, 1940, and that pursuant to this agreement the contract dated September 18, 1940 was thereby cancelled. It is to be noted that nothing in the contract of October 1, 1940, or in the accompanying letter indicated an intention to cancel the contract of September 18, 1940, nor was this contract ever surrendered for cancellation.

On December 31, 1940, petitioner Harry Lipman, who was president of Acme, discontinued business as a corporation and commenced operating the corporate business individually, doing business as Acme Shellac Products Co. In consequence Acme assigned the contract dated September 18, 1940, to Lipman indivi ually, who in turn assumed the performance of all the terms of said contract. Petition further alleges that Haeuser, however, although promising to deliver, never in fact delivered any of the goods under this contract of September 18, 1940, although constant demand was made for such delivery between September and December, 1940, as well as between January and July, 1941. Lipman thereupon demanded that Haeuser proceed to arbitrate the differences arising out of this contract, but Haeuser refused. In consequence petitioner moved at Special Term pursuant to section 1450 of the Civil Practice Act to compel Haeuser to proceed to arbitration in accordance with the terms of the contract.

At Special Term an order was entered directing that the making of the contract of September 18, 1940, be submitted to a jury and if the jury found that the contract was made, then was it thereafter cancelled and annulled by the parties? If not, Haeuser was directed to submit forthwith to arbitration. Upon appeal to the Appellate Division the order was modified by striking therefrom the submission to the jury so as to compel arbitration forthwith.

As to the making of the contract, there is no issue, since that is, in effect, admitted not only in the answer of defendant but also in its brief in this court.

Upon this appeal appellant stresses that the issue of the cancellation of the contract is one which must be determined by the court before it may compel arbitration. A different question would be here if the issue was whether the contract never came into existence and hence was void, or if, although the contract was made, there arose an issue of fraud, duress - or other impediment which rendered the contract voidable, or if there were any conditions precedent. But since appellant in the case at bar admits the making of the contract of September 18, 1940, and its failure to proceed to arbitration in accordance with that portion of the contract which provides therefor, sufficient has been shown to make applicable that part of section 1450 of the Civil Practice Act which reads as follows: Upon being satisfied that there is no substantial issue as to the making of the contract * * * or the failure to comply therewith, the court * * * hearing such application, shall make an order directing the parties to proceed to arbitration in accordance with the terms of the contract * * *.”

While it must ever be borne in mind that a court has no power to grant a motion to compel arbitration unless the subject-matter is comprised within the agreement to arbitrate made by the parties, yet when once an agreement to arbitrate has been made, such an agreement must be considered in the light of the broad language used in the above arbitration statute. (Civ. Prac. Act, § 1450:) This language seems to imply that all acts of the parties subsequent to the making of the contract which raise issues of fact or law, lie exclusively within the jurisdiction of the arbitrators. It is to be noted that, contrary to the contention of appellant, the statute only requires the contract to have been made and does not require that it shall continue to be in existence. The language of the agreement to arbitrate of course, must be sufficiently broad so as to permit of the application of the general principle that all issues subsequent to the making of the contract are not for the court but for the arbitrators. Where, however, as here, the language of the provision providing for arbitration uses not only the phrase any and all controversies arising out of the contract ” but also “ any and all controversies in connection with the contract,” this language would appear sufficiently broad to express the intention of the parties to include within the exclusive jurisdiction of the arbitrators as a general rule all acts by the parties giving rise to issues in relation to the contract, except the making thereof.

So in Matter of Kahn (284 N. Y. 515, 523), where the agreement for arbitration was much narrower than in the case at bar and the question presented was whether the court, before it may compel arbitration, must in this case pass upon an issue of whether the depositor has breached the agreement of settlement,” we held that before compelling arbitration it was not necessary for the court to determine that the contract was either performed by one party or breached by the other. The question of performance goes to the merits, and that, the parties have consented to have decided by the arbitral tribunal. (Matter of Wenger & Co. v. Propper Silk Hosiery Mills, Inc., 239 N. Y. 199.) The issue arising from the defense of cancellation, therefore, must be submitted for decision to the arbitrators.

Defendant also urges as a defense to the motion to compel arbitration that, since Lipman was not a party to the contract but is an assignee, he may not compel Haeuser to submit to arbitration. The argument of appellant is based on the premise that the arbitration clause may not be taken advantage of by an assignee. We have heretofore held, however, with reference to a contract similar to that in the case at bar, that the arbitration clause is an integral part of the contract and may be availed of, not only by the original parties but also by assignees. (Matter of Lowenthal, 199 App. Div. 39; affd., 233 N. Y. 621; Matter of Hosiery Manufacturers Corp. v. Goldston, 238 N. Y. 22.) These cited cases thus negative the contention that a contract for the sale of merchandise containing an arbitration clause may not be taken advantage of by an assignee.

Haeuser urges secondly that the contract is not assignable because it is a personal contract since Haeuser was obliged to sell the merchandise on credit and hence, while it might be satisfied with the credit standing of Acme, it might be unwilling to extend credit to Lipman. This contention is untenable. Since Haeuser did not refuse to arbitrate or to deliver the goods upon the ground that the credit of Lipman was not satisfactory, it may not now make such claim for the first time.- Moreover, this contract provided that, if the credit of the buyer was such that in the judgment of the seller, payment ought to be made in advance, upon notification by the seller to the buyer to this effect, the terms of payment were to be deemed amended so as to provide for payment in advance of delivery.

It follows that the order should be affirmed, with costs.

Lewis and Conway, JJ. concur with Finch, J.; Lehman, Ch. J., and Desmond, J., concur in the result for the reasons stated in the dissenting opinion in Matter of Kramer & Uchitelle, Inc. (288 N. Y. 467), decided herewith; Lotjghran and Rippey, JJ., dissent.

Order affirmed. (See 289 N. Y. 647.)


author: Lehman, Ch. J.

text:
    Manhattan Storage and Warehouse Company et al., Respondents, v. Movers and Warehousemen’s Association of Greater New York, Inc., et al., Appellants.

      Argued June 15, 1942;
    decided July 29, 1942.

      William F. Bleakley, Roswell P. C. May and Arthur P. West for Movers and Warehousemen’s Association of Greater New York, Inc., et al., appellants.

      Harry Sacker for Joseph Schorr, as President, and John J. McKenna, as Secretary-Treasurer of Local 814 of International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, appellant.

      James D. Wise, George J. Kraft and Robert M. Bozeman for respondents.
   Lehman, Ch. J.

On April 15, 1940, the defendant union entered into an agreement with the defendant associations of employers, which is known as “ the Collective Labor Agreement of the Moving and Storage Industry of New York, N. Y. 1940-1942.” The plaintiffs are members of the Movers & Warehousemen’s Association of Greater New York, Inc., one of the defendant associations of employers. They are parties to the agreement, and they recognize that they are bound by all its terms and provisions so far as these provisions are lawful and do not offend the public policy of the State.

The agreement, in section I, establishes the rates of pay or wages, the hours and the working conditions of persons employed in the business of moving and of storing household goods. The plaintiffs do not challenge the validity of these provisions. The agreement goes further. In section II it provides that “ unfair trade practices ” there described should be eliminated from the Industry,” and that in order to eliminate such unfair practices in the Industry for the benefit and protection of labor, the public and the Industry, and in order to create a joint agency of employers and employees to aid and assist the Interstate Commerce Commission of the United States and the Public Service Commission of the State of New York in the effective administration and enforcement of the Motor Carrier Act, 1935 and the New York Motor Truck Act, * * * the Moving and Storage Stabilization Committee * * * shall be and is hereby created * * * with the powers and duties hereinafter set forth.”

Among the. unfair practices ” winch the parties agreed should be “ eliminated ” is: “ Quoting or obtaining or attempting to secure a price for any service which shall be less than the sum of the wages necessary under Section I of the Agreement and of reasonable items of expenses and overhead entering into the cost of operation.” Included in the powers and duties of the Stabilization Committee is the duty “ to obtain from employers and from other sources reports of operating costs as a basis for the administration of Section II of the agreement.” It must “ receive and investigate complaints of violations by employers of the Agreement ” and it may exclude any employer from any or all rights or benefits under this Agreement for the violation of this Agreement or for the failure to comply with a decision or determination of the Committee.” In the exercise of these powers the Committee has, after investigation and hearing, established “ schedules of basic costs which must be used in calculating the minimum prices for service which may be quoted or charged. The parties have agreed that “ said basic costs are, on the average, not higher than the rates and charges for the same services filed by the employers subject to the Collective Labor Agreement, with the Interstate Commerce Commission and the Public Service Commission of the State of New York pursuant to Federal and State statutes.”

The plaintiffs contend that the provisions of Section II of the Collective Labor Agreement and the acts of the Stabilization Committee thereunder which fix or tend to fix prices relating to moving and storage of household goods are invalid and unenforceable.” The defendants reject that contention, and defendant union has threatened to call a strike because of such non-compliance by the plaintiffs. Upon an affidavit of the president of the Manhattan Storage & Warehouse Company, one of the plaintiffs, that the controversy is real, the controversy has been submitted to the Appellate Division pursuant to the provisions of section 546 of the Civil Practice Act, upon a statement of agreed facts. Both sides ask the court to determine whether the provision of the collective labor agreement prohibiting employers subject to the agreement from quoting or obtaining or attempting to secure a price for any service which shall be less than the sum of the wages necessary under Section I of the agreement and of reasonable items of expenses and overhead entering into the cost of operations is lawful;” whether the schedule of minimum prices as set forth in the schedule of Basic Costs * * * prescribed by the Stabilization Committee * * * are lawful; and whether plaintiffs are lawfully bound by said portions of the Collective Labor Agreement.”

The Legislature in the exercise of the police power and in order to promote the public welfare has provided in section 340 of the General Business Law (Cons. Laws, ch. 20) that 1. Every contract, agreement, arrangement or combination whereby * * * competition or the free exercise of any activity in this state in the manufacture, production, transportation, marketing or sale in this state or in the supply or price of any such article, product, commodity, service, transportation or trade practice is or may be restrained or prevented * * * is hereby declared to be against public policy, illegal and void. 2. The provisions of this article shall not apply to cooperative associations, corporate or otherwise, of farmers, gardeners, or dairymen * * * nor to contracts agreements or arrangements made by such associations, nor to bona fide labor unions.” Any person who makes or attempts to make or enter into such contract or combination or who within the State does any act pursuant to or “ in, toward or for the consummation thereof ” is guilty of a misdemeanor punishable by a heavy fine or imprisonment. (§ 341.) The Attorney-General may bring an action to restrain and prevent any act winch is declared illegal by the statute. (§ 342.)

Where there has been a submission of a controversy upon stipulated facts a determination of the controversy must be based upon those facts and no others; if the facts which have been stipulated are insufficient for the determination of the controversy, the submission must be dismissed. The court may not reject or disregard any fact which is relevant, nor may it find any fact not included among those stipulated. That is true even where the finding of an additional fact is the result of an inference based upon the stipulated facts, or some of them, which a trier of the fact migh reasonably draw. By the nature of the proceedings the function of the court is confined to the determination of the consequences which as matter of law flow from the stipulated facts; exercise of the judicial function of determining the facts is excluded. (Feist v. Fifth Avenue Bank, 280 N. Y. 189; Title Guarantee & Trust Co. v. Mortgage Commission, 271 N. Y. 302.)

The parties to the submission have stipulated that the defendant union is a “ bona fide ” union. They have stipulated that a cut throat ” competition long existed in the industry and that in order to meet such competition, many firms “ in violation of the contracts * * * which they had entered into with defendant Union ” felt constrained “ to make individual arrangements and agreements with their employees who were members of defendant Union, whereby said employees agreed to accept rates of pay, substantially less than those provided in the contracts made between the defendant Union and such firms, and to work upon terms and conditions different from and far less favorable than those contained in said contracts.” The parties have stipulated, too, that in other respects also, such competition adversely affected the wages and working conditions of employees and induced some employers to attempt “ to avoid the obligations imposed on them by State and Federal law respectively to maintain workmen’s compensation insurance for their employees and to pay social security and unemployment insurance taxes.”

The statement in the stipulation of the agreed “ facts upon which the controversy between them depends ” extends over many printed pages in the record. Our summary of the facts is far from complete. We content ourselves with stating our conclusion that the stipulated facts are intended to form the foundation for the conclusion that the provision of the contract which is questioned was reasonable and was calculated to remedy conditions which were harmful to employers, to employees and to the general public. Indeed, the parties have stipulated and agreed that “ the only means known whereby compliance with and performance of the agreements made between the Union and employers of its members * * * could be secured and the fraud and deception on customers eliminated was to establish prices for services which would be equal to the cost of rendering such services.” The plaintiffs’ challenge of the legality of the provisions of the agreement intended to compel the establishment of such prices is not based on any contention that the provision was not in good faith intended to remove an existing evil, or was not reasonably calculated to promote the interests of employees, of employers and of the general public. They have by their stipulation sought to bar such question. They maintain that regardless of the good intentions of the parties and the benefits that might result from the challenged provision, it does restrain competition in violation of section 340 of the General Business Law, and is, for that reason, unlawful, citing United States v. Socony-Vacuum Oil Co. (310 U. S. 150). The exemption of “ bona fide labor unions ” contained in the statute was not intended, the plaintiffs urge, to sanction such an agreement.

The Appellate Division did not, however, decide that question, nor, in our opinion, could it properly decide such a question in these proceedings. All the judges of the Appellate Division apparently agreed with the statement in the majority opinion that the exemption of “ bona fide ” labor unions in section 340 does not give immunity to the contracts or agreements of labor unions unless they are confined to some legitimate labor activity.” The prevailing opinion adds that: To grant labor unions an exemption so that they may enter into agreements to enforce monopolistic aims of employer groups by fixing the prices to be charged the public for services or commodities and thus to stifle competition would be to destroy entirely the anti-monopoly statutes.” (262 App. Div. 332, 335.) From the provisions of the contract, and in spite of the “ agreed facts ” upon which the parties had stipulated ” that “ the controversy between them depends,” the Appellate Division found in the provisions of the contract itself a basis for the conclusion that despite the thinly veiled attempt to conceal the real purpose * * * under this agreement the stabilization committee was authorized to fix prices to be charged in the industry ” (italics are new), and for that reason the Appellate Division held that the contract was unlawful.

We do not decide, or even consider, whether a court authorized to determine questions of fact might find in the terms of the contract sufficient ground for an inference that the real purpose of the contract was to “ enforce monopolistic aims of employer groups ” though the parties in the contract as well as in the stipulation of agreed facts may have tried to conceal that purpose. The Appellate Division has not, however, as we have said, power to determine any question of fact and to draw such an inference where the parties have submitted a controversy under a stipulation that the controversy depends upon the agreed facts. The finding of the Appellate Division demonstrates forcibly that this controversy cannot properly be determined upon such a submission.

An action for a declaration of “ rights ” and “ legal relations ” in accordance with section 473 of the Civil Practice Act serves a legitimate purpose where all persons who are interested in or might be affected by the enforcement of such “ rights ” and " legal relations ” and who might question in a court the existence and scope of such rights, are parties to the action and have opportunity to be heard. As to persons who are not parties a declaratory 'judgment would be a mere academic pronouncement without juridical consequence, but which might be embarrassing if attempt is made thereafter to enforce these rights in legal proceedings to which they are parties. A court may, and ordinarily must, refuse to render a declaratory judgment in such case. (Post v. Metropolitan Casualty Ins. Co., 227 App. Div. 156.)

Such considerations have peculiar weight in this case. The employers’ association of which these plaintiffs are members and the labor union have voluntarily entered into an agreement binding on both, except in so far as it may violate the public policy of the State established by the Legislature to promote the public welfare. Both parties to the contract may believe that enforcement of the contract will promote their interests —■ indeed we might assume that otherwise they would not have made the contract. In this action they are in effect asking the court to determine whether or not their agreement, entered into for the promotion, primarily, of their private interests, is unlawful because it conflicts with a public policy declared by the State to safeguard the interests of the public; yet the State is not a party to the proceedings and no party to the proceedings is authorized to defend the interests of the public. In the General Business Law the Attorney-General is expressly directed to prosecute, and to seek injunctions against, violations of the statute. Though in legal theory a declaration that the agreement is lawful would .not be binding in a criminal or civil proceeding initiated by the Attorney-General to punish or restrain a violation of the statute, yet its practical effect, and perhaps its intended purpose, would be to forestall and render futile such a proceeding. Even a declaration that the agreement is unlawful might be embarrassing, for it would be in practical effect a judicial mandate to the Attorney-General to enforce the judicial pronouncement of illegality effective by proceeding, initiated in accordance with the statute — though he has had no opportunity to present to the court factual considerations or legal arguments which might dictate a conclusion that the agreement is lawful and promotes the public interest. For these reasons it is plain that no action may be maintained for a declaration of the legality of the challenged provision of the agreement between the defendant union and the defendant associations of employers unless the Attorney-General is a party to it.

The same reasons with even more compelling force constrain the conclusion that the controversy between the plaintiffs and the defendants may not be determined upon a statement of agreed facts. Parties to a controversy in which no question of public policy is involved and which affects only private rights in which only the parties to the controversy are interested, may properly stipulate that the controversy depends upon facts upon which the parties have reached agreement. Where the controversy concerns rights which the parties may by agreement create, limit or define, they may by agreement concede facts which perhaps could not be proven, and restrict as they choose the matters upon which they have not agreed and upon which they seek the arbitrament of the court. Where, on the other hand, the power of the parties to create, limit or define their rights and legal relations is restricted by law in the public interest, the parties cannot by stipulation or agreement remove or loosen the restriction. If, in truth, the contract is not made by a “ bona fide ” union and is not intended to promote purposes of the union sanctioned by law, but is a mere cover for the promotion of ends which are prohibited, no stipulation of the parties can bar inquiry by the officers of the State or by the courts, or make lawful an agreement calculated to violate the declared public policy of the State. If, in truth, the agreement be, as the Appellate Division has suggested, a “ thinly veiled attempt to conceal the real purpose ” of authorizing the employer group to fix prices, no stipulation of the parties can be permitted to serve as an effective curtain for inherent illegality.

Nothing that we have said herein should be construed as an indication of any opinion by this court that in this case the statement of agreed facts does or does not faithfully and accurately present the true situation, or of any opinion whether, upon a different record and in a different form of proceeding, the decision of the Appellate Division might be correct. We repeat that in any event the finding of the court demonstrates that the controversy cannot properly be decided in this proceeding, and for that reason we have not considered any question of law involved directly or indirectly in the controversy.

The judgment of the Appellate Division should be reversed and the submission dismissed, without costs.

Loughran, Finch, Kippey, Lewis, Conway and Desmond, JJ., concur.

Judgment reversed, etc.


text:
    Edward C. Alexion, as President of Association of Motor Vehicle Salesmen of Greater New York and Vicinity, Respondent, v. Leslie W. Hollingsworth et al., Appellants.

      Argued June 9, 1942;
    decided July 29, 1942.

      Simon J. Liebowitz and Samuel Sumner Goldberg for appellants.
    Plaintiff never established its exclusive right to the use of the name, and in fact succeeded in establishing that the name was the property of those who refused to secede from the international. (Nilan v. Colleran, 283 N. Y. 84; Goller v. Stubenhaus, 77 Misc. Rep. 29; United Gold & Platinum Mines Co. v. Smith, 44 Misc. Rep. 567; Ostrom v. Greene, 161 N. Y. 353; Kehoe v. Leonard, 176 App. Div. 626; Green v. Gravatt, 19 Fed. Supp. 87; Local No. 7 of Bricklayers v. Bowen, 278 Fed. Rep. 271; Gardner v. Newbert, 74 Ind. App. 183; Neal v. Hutcheson, 160 N. Y. Supp. 1007; Brownfield v. Simon, 94 Misc. Rep. 720; 174 App. Div. 872; 225 N. Y. 643; Steinmiller v. McKeon, 261 App. Div. 899 ; 288 N. Y. 508; Low v. Harris, 90 Fed. Rep. [2d] 783; Lumber & Sawmill Workers Union v. International Wood Workers of America, 85 Pac. Rep. [2d] 1099; McFadden v. Murphy, 149 Mass. 341; Henry v. Cox, 25 Ohio App. 487.)

      Joseph Brill and Abraham J. Brill for respondent.
    Plaintiff owned the name “ Association of Motor Vehicle Salesmen of Greater New York and Vicinity ” when it became a constituent of the international, and, thereafter, continued to own that name, and had complete rights to such name on seceding from the international. (Wells v. Monihan, 129 N. Y. 161; Kelso v. Cavanagh, 137 Misc. Rep. 653; World Trading Corp. v. Kolchin, 166 Misc. Rep. 854; Wicks v. Monihan, 130 N. Y. 232.)
   Lehman, Ch. J.

In the early months of 1937 a group of men, employed as salesmen of new and used automobiles in Greater New York, organized an unincorporated association (hereinafter referred to as the Association) for the purpose of improving working conditions for automobile salesmen and securing better wages, hours and conditions of employment by collective bargaining with their employers. In December, 1937, a charter was granted by Retail Clerks International Protective Association (hereinafter referred to as the International), affiliated with the American Federation of Labor, to certain members of the Association and “ to their successors legally qualified to constitute the Union herein named and known under the title of Association of Motor Vehicle Salesmen of Greater New York and Vicinity Local No. 1415, for the purpose of a thorough organization of the retail clerks of the City of New York.” The charter provided, “ that the said Union do conform to the Constitution, Laws and Rules of The Retail Clerks’ International Protective Association, and in default thereof, or any part, this Charter may be suspended or revoked according to the laws of the International Association. And should the said Association of Motor Vehicle Salesmen be dissolved, suspended, or forfeit this Charter, then the persons to whom this charter is granted, or their successors, bind themselves to surrender the same with such other property as shall properly belong to the International Association.”

After the charter was granted, the Association which had received and accepted a charter from the International, had no existence independent of the local union, and its members pursued the labor objectives, for which the Association had been formed, only as members of that local union.

The local union included residents of Westchester county as well as of New York City. The union in 1940 conducted a strike against the Brown-Buick Company, Inc., an automobile dealer in White Plains, Westchester county. The strike was settled by arbitration and the Brown-Buick Company was directed to pay $1,700 to the local union. The employees of the Brown-Buick Company, Inc. claimed that they were entitled to the proceeds of the check for that amount received by the union. A bitter controversy arose within the union in regard to that and other matters. The members of the local who were employed in Westchester county complained to Nathan Wertheimer, the Eastern representative of the International, that the officers of the local union were discriminating against them, and were applying to their own purposes the proceeds of the check which should be distributed among the Westchester members. Wertheimer espoused their cause and acted as their spokesman.

The members of the local union in Westchester county threatened to withdraw from the union. Wertheimer wrote to Alexion, as “ manager ” of the local union, a letter dated February 6, 1941, in which he stated, among other things: “ I also wish to reiterate that the International is granting a separate charter for Westchester, to which Local Union all of the Brown Buick employees will be transferred. The issuing of this charter is being held in abeyance as per our conversation until the International will hear your objection to it. You may do so in writing direct to Brother C. C. Coulter or if possible meet in conference with our Secretary-Treasurer at Lafayette Indiana.”

While recriminations were being exchanged between the officers of .the local and Wertheimer, the representative of the International, Wertheimer mailed to the members of the local a notice of a meeting to be held in the Normandie Room of the Hotel Capitol in New York City at ten p. m. on February 19, 1941. The notice stated, “It is urgent that each and every member affiliated with the Retail Clerks International Protective Association, A. F. of L. attends to this meeting. Matters of vital importance will be recommended by the International through its Eastern representative, Nathan Wertheimer. An organization program will also be adopted at this meeting, and all other matters which may come up for discussion will be enacted.”

A large majority of the members of the local union who attended or attempted to attend the meeting called by Wertheimer belonged to the faction which supported the officers of the local union and were opposed to Wertheimer. A vice-president of the local union occupied the chair at the meeting and refused to permit Wertheimer to preside and, it is said, excluded Wertheimer and members of the opposing faction from the meeting. The minutes of the meeting show that the first business of the meeting was the presentation of charges against twenty-three members of the local union reciting that they have been and are engaging in activities which are inimical to the best interests of our local ” and that they are “ aiding, abetting and supporting forces which intend to split our local and to divide its forces,” and have been guilty of conduct and acts in violation of provisions of the constitution of the International. A panel of members to try these charges was then selected and instructed to proceed, according to the constitution and by-laws, to give a fair and impartial trial to the defendants. A resolution was then adopted that “ pending the trial of the charges which have just been received, the persons named in the said charges shall stand suspended from all of their membership rights in our union and as members of our union, pending their trial on the said charges.” (Sic) Charges were then presented against Nathan Wertheimer to be forwarded to the “ international secretary-treasurer ” of the International. Then a resolution was presented that the “ local union shall and does hereby secede and leave its affiliation with the Retail Clerks International Protective Association * * * that from now and henceforth our local union shall continue as a trade union, to be known as the Association of Motor Vehicle Salesmen of Greater New York and Vicinity, and remain as an independent union until such time as by warrant of fact and benefit of developments it may be determined by the membership to otherwise affiliate; and be it further

RESOLVED, that our union continue to keep in force and effect the contracts, protecting our membership in the various places of employment as they may now be employed, as they may now be in force and effect as written; that we do hereby ratify and adopt and continue the same as made by our local union in behalf of our membership as aforesaid; and be it further

“ RESOLVED, that all new contracts, documents, papers and other identifications pertaining to our local union shall henceforth be in the name and style of the Association of Motor Vehicle Salesmen of Greater New York and Vicinity; * *

According to the minutes the Resolution was met with tumultuous cheers and enthusiastic applause.” Mr. Wertheimer protested on various grounds and left the meeting. Thereafter the motion was unanimously adopted by those present at the meeting. Some of the members of the local union who were not present at the meeting have approved the resolution of secession and have adhered to the seceding faction. Members of the local union who belonged to the faction which had complained to Wertheimer and had asked his aid, including the twenty-three members who were suspended upon charges presented at the meeting when the vote was taken, have challenged the validity of the resolution of secession and they claim that they constitute the “ Association of Motor Vehicle Salesmen of Greater New York and Vicinity Local No. 1415 ” and that they alone are entitled to the benefit of the collective agreement negotiated by the local union, and that the seceding group are wrongfully withholding from them contracts and property belonging to the local union.

The plaintiffs represent the seceding group of the local union and they have brought an action against the defendants, who claim to be members of the local union. In their complaint they ask that judgment restraining the defendants from using the name Association of Motor Vehicle Salesmen of Greater New York and Vicinity,” from representing that the Association is affiliated with Retail Clerks International Protective Association, and from representing that the plaintiff Edward C. Alexion is not the president of the Association. Judgment in favor of the plaintiffs, granting them relief which, in some important respects, exceeds the relief asked for in the complaint, has been unanimously affirmed by the Appellate Division.

Section 22 of the constitution of the International provides, among other things, that “ a Local Union cannot withdraw from the International Association or dissolve, so long as seven members in good standing object thereto.” The local union having received and accepted a charter from the International which provides that the local must conform to the constitution, laws and rules of the International, the local union and its members are bound by the provisions of the constitution forbidding secession when more than six members object. (Brownfield v. Simon, 94 Misc. Rep. 720; affd., 174 App. Div. 872; affd., 225 N. Y. 643; Nilan v. Colleran, 283 N. Y. 84.) There can be no doubt that the members of the local union who have been suspended upon charges object, and have always objected, to the proposed secession of the local union from the International. There is conflict in the testimony as to whether the members so suspended attempted to attend and vote at the meeting where the resolution of secession was adopted. All disputed questions of fact have been resolved in favor of the plaintiffs by the findings and decisions of the justice who tried the case. Whether or not the defendants did attempt to attend and vote at the meeting is, however, immaterial. The mandate of the constitution that no local may withdraw from the International so long as seven members object cannot be evaded by suspending upon charges, members of the local union who might object, and depriving them of their membership rights without a trial, and then while members of the union opposed to withdrawal are thus deprived of a right to object, adopting the resolution at a meeting convened upon notice which gives no warning that a resolution of secession would be presented. The resolution of withdrawal, it is plain, does not comply with the conditions required under the constitution to give force to it. More than seven members do object.

The original unincorporated association ceased to function when its members received and accepted the charter as a local union from the International. Thereafter, by their own choice the Association acted as a constituent association of the International. The charter granted by the International became a contract which determined the rights and duties of the constituent society and its members. As the contract may prescribe the precise terms upon which a membership may be gained, so may it conclusively define the conditions which will entail its loss.” (Polin v. Kaplan, 257 N. Y. 277, 281.) The rights of the defendants as members of the local union cannot be lost except in the manner permitted by the contract, from which these rights spring. These rights include the right to use the name of the local union and to glean the benefit derived from collective agreements made by the local union. The question is not before us whether the seceding members of' the local union may also use the name under which they transacted their affairs before they received a charter as a local union. Nor do we decide at this time whether the plaintiffs may, under the circumstances described in this case, object to discharge by their employers because they have ceased to be members of the local union with which the employer has made the collective agreement. We decide only that the right of the plaintiffs to the use of the name, if they have any right, is certainly not exclusive and the complaint in this action for an injunction against the defendants on the ground that the defendants are using that name wrongfully must be dismissed.

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

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.; concur.

Judgments reversed, etc.


text:
    Edward C. Alexion, as President of Association of Motor Vehicle Salesmen of Greater New York and Vicinity, et al., Respondents, v. E. H. Goodwin Motor Car Company, Inc., et al., Appellants, Impleaded with Another. E. H. Goodwin Motor Car Company, Inc., Appellant, v. Edward C. Alexion, as President of Association of Motor Vehicle Salesmen of Greater New York and Vicinity, Respondent, Impleaded with Another.
    Argued June 9, 1942;
    decided July 29, 1942.

      Samuel Sumner Goldberg and Irving Hatterer for appellants.

      Joseph Brill and Abraham J. Brill for respondents.
   Per Curiam.

The ground upon which the judgments are based is destroyed by the reversal of the judgment in Alexion v. Hollingsworth, 289 N. Y. 91, decided herewith. We do not now consider what may be the rights and relations of the parties viewed in the light of our decision in that case. Determination of such questions must be postponed until they are presented upon a new trial.

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

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


text:
    The People of the State of New York, Respondent, v. Carlo Barone and Dominick Grippo, Appellants.
    Argued June 10, 1942;
    decided July 29, 1942.

      Alfred A. Duffy, Louis E. Drago and Samuel Goldstein for Carlo Barone, appellant.

      Samuel Bader and Harry G. Anderson for' Dominick Grippo, appellant.
    It was impossible for the defendant Grippo to receive a fair trial as a result of Barone’s extraordinary conduct throughout the trial. The trial court committed reversible error in failing to safeguard the rights of the defendant Grippo in denying his motions for a severance or, in the alternative, for the declaration of a mistrial. (People v. Snyder, 246 N. Y. 491; People v. Feolo 282 N. Y. 276.)

      William O’Dwyer, District Attorney (Henry J. Walsh and Thomas Cradock Hughes of counsel) for respondent.
    Grippo was not entitled to a severance of the trial. (People v. Fisher, 249 N. Y. 419; People v. Feolo, 282 N. Y. 276.)
   Per Curiam.

In spite of the attempt of the trial judge to protect the defendant Grippo, the behaviour of the co-defendant Barone at the trial made a fair consideration of the evidence against Grippo by the jury impossible.

As to the defendant Barone, the judgment of conviction should be affirmed.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

As to the defendant Grippo, the judgment of conviction should be reversed and a new trial ordered.

Lehman, Ch. J., Loughran, Rippey and Desmond, JJ., concur; Finch, Lewis and Conway, JJ., dissent.

Judgments accordingly.


text:
    John F. Johnson, Appellant, v. R. T. K. Petroleum Co., Inc., Respondent, Impleaded with Others.
    Argued June 18, 1942;
    decided July 29, 1942.

      Harry A. Spiegelman, Joseph J. Schwartz and John M. Wilson for appellant.
    The question whether the driver of the truck was an employee of the respondent or an independent contractor, was one of fact, and the finding by the trial court that he was an employee is conclusive. (La Duke v. International Paper Co.,
      258 App. Div. 375; Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60; Braxton v. Mendelson, 233 N. Y. 122.) The driver of the truck was the employee of the respondent and the latter was responsible for his negligence. (La Duke v. International Paper Co., 258 App. Div. 375; Matter of Morton, 284 N. Y. 167; Matter of Washburn v. Bunce, 272 N. Y. 547; Matter of Jacobi v. Supreme Junior Coat Co., 268 N. Y. 654; Schmedes v. Deffaa, 214 N. Y. 675; Charles v. Barrett, 233 N. Y. 127; McNamara v. Leipzig, 227 N. Y. 291; Martucci v. Eskay Coal & Fuel Corp., 257 App. Div. 998; Malloy v. Scott, 275 N. Y. 496; Fritz v. Krasne, 273 N. Y. 649.)

      William C. Goodson and Alexander D. Diamond for respondent.
    The evidence establishes conclusively that Hunt was operating the truck in question in furtherance of his own business as an independent contractor and was not the servant of the respondent, so as to render the latter liable for the accident. (Brown v. Steamship Terminal Operating Corp., 267 N. Y. 83; Martucci v. Eskay Coal & Fuel Corp., 257 App. Div. 998; 282 N. Y. 642; McLaughlin v. Audley Clarke Co., 225 App. Div. 805; 251 N. Y. 507; Irwin v. Klein, 271 N. Y. 477; Ramsey v. N. Y. C. R. R. Co., 269 N. Y. 219; Brown v. Steamship Terminal Operating Corp., 267 N. Y. 83; Charles v. Barrett, 233 N. Y. 127; Fritz v. Krasne, 161 Misc. Rep. 442 ; 248 App. Div. 573; 273 N. Y. 649; Howitt v. Hopkins, 219 App. Div. 653; 246 N. Y. 604; Haykl v. Drees, 247 App. Div. 90; 272 N. Y. 576; Natell v. Taylor-Fichter Steel Constr. Co., 257 App. Div. 764.) The Appellate Division properly dismissed the complaint against the respondent because of a total failure on the part of the plaintiff to sustain the burden of showing the applicability of the doctrine of respondeat superior. (Charles v. Barrett, 233 N. Y. 127; Brown v. Steamship Terminal Operating Corp., 267 N. Y. 83; Irwin v. Klein, 271 N. Y. 477; McNamara v. Leipzig, 227 N. Y. 291; Malloy v. Scott, 248 App. Div. 882; 275 N. Y. 496; Cattini v. American Ry. Exp. Co., 202 App. Div. 336; 234 N. Y. 585; McLaughlin v. Audley Clarke Co., 225 App. Div. 805; 251 N. Y. 507; Haykl v. Drees, 247 App. Div. 90; 272 N. Y. 576.)
   Per Curiam.

On this record it was error to hold as a matter of law that the co-defendant driver and owner of the truck was an independent contractor rather than a servant of the corporate defendant. The nature of the relationship existing was a question of fact which the trier of the facts resolved in favor of the plaintiff. (See Braxton v. Mendelsohn, 233 N. Y. 122; Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60; Irwin v. Klein, 271 N. Y. 477; Fritz v. Krasne, 273 N. Y. 649.) The evidence sustains that finding.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed with costs in this court and in the Appellate Division. (See 289 N. Y. 647.)

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.


author:
      Per Curiam.
     Rippby, J.,

text:
    In the Matter of John T. McCall, Respondent; Charles A. Muzzicato et al., Appellants.
    Argued October 5, 1942;
    decided October 8, 1942.

      Louis J. Lefkowitz, Alfred J. Bohlinger and Frederick T. Paine for Charles A. Muzzicato, appellant.
    Muzzicato’s declination of the Senatorial nomination obtained at the primary election as the nominee of the Republican and American Labor Parties was in all respects valid. (Cons. Laws, ch. 17, §§ 319-f, subd. 8, 319-h.) The order appealed from is contrary to the spirit and intent of the State Constitution and the Election Law. (Matter of Ryan v. Murray, 172 Misc. Rep. 105; People v. Purdy, 154 N. Y. 439.)

      Philip Jones and Allen Goodwin for Richard A. DiCostanzo et al., appellants.
    The declination of the Republican and American Labor Party nomination for State Senator received by Muzzicato at the primary election was permissible. (Cons. Laws, ch. 17, §§ 319-f, subd. 8, 319-h.) The relief sought by petitioner is contrary to the spirit and intent of the Constitution and the Election Law. (Matter of Ryan v. Murray, 172 Misc. Rep. 105; People v. Purdy, 154 N. Y. 439.)

      William C. Chanler, Corporation Counsel (H. Broadman Epstein of counsel), for Board of Elections of City of New York.

      James B. M. McNally, Nicholas P. Iannuzzi, Nathan B. Gurock, Jacob Markowitz and Edmond Finbar McCarthy for respondent.
    The declination is not permitted by the statute. (Cons. Laws, ch. 17, § 319-f, subd. 8; Matter of Clonan, 176 Misc. Rep. 557; Mushlitt v. Silverman, 50 N. Y. 360; Johnson v. Hudson R. R. R. Co., 49 N. Y. 455.)
   Per Curiam.

Charles A. Muzzicato received the party nomination for State Senator in the primary election of both the Republican and American Labor parties. Subsequently he received the nomination of the Republican party for Representative-at-Large. Thereafter he declined the nomination of both parties for State Senator and the Board of Elections accepted the declination. Petitioner as the candidate of another party thereafter instituted this proceeding contending that under the Election Law the nominee could decline only the party nomination of the Republican party but could not decline the party nomination of the American Labor party.

The Election Law (Cons. Laws, ch. 17) provides in section 319-f, subdivision 8: “ A person whose name is printed on the primary ballot of a party, as a candidate for nomination by it to public office, and who is nominated, if such person is thereafter nominated for another office by such party * * * may decline the nomination made at the primary election * *

Construing the statute in accordance with the mandate of section 319-h, that “ * * * the provisions of this article shall be construed liberally for the purposes herein expressed or intended,” we reach the conclusion that section 319-f, subdivision 8 authorizes a candidate, in the circumstances herein described, to decline any nomination made at a primary election since. that is the only practicable method by which he can take advantage of the statutory permission to terminate his candidacy for office.

The order of the Appellate Division should be reversed and that of the Special Term affirmed.

Rippby, J.,

(dissenting). At the recent primary election Charleé A. Muzzicato was nominated by the Republican party as its candidate for the office of State Senator. He was also nominated as its candidate for the same office by the American Labor party at its primary election. Subsequently he was nominated by the Republican party at its State convention as its candidate for Congressman-at-Large. He was not nominated by the American Labor party as its candidate for Congressman-at-Large or for any other public office.

Section 319-f, subdivision 8 (L. 1942, ch. 852) provides that A person whose name is printed on the primary ballot of a party, as a candidate for nomination by it to public office, and who is nominated, if such person is thereafter nominated for another office by such party * * * may decline the nomination made at the primary election * * *.”

Muzzicato has declined the nomination of the Republican party made at its official primary election as he was authorized to do by statute. He has attempted also to decline the nomination of the American Labor party duly made at its official primary. There is no provision of law which authorizes or permits a person who has been regularly nominated by a political party at its official primary for a particular public office subsequently to decline that nomination except in the event he should be nominated thereafter by that party for another public office. The majority of the court is about to hold that if a person is nominated in the primaries for the same office by two or more political parties and then succeeds in obtaining nomination for another public office from one of those parties only, he may decline the primary nominations of all of such parties. The statute does not so read. Nor is there anything to indicate that there was any intent on the part of the Legislature to have it so construed. The Legislature alone has power to provide that a primary party nominee may decline his party primary nomination when that nominee has not subsequently been duly nominated by that party for another public office. The courts may not write such authority into the statute. We must take the law as we find it, the wording of the statute is clear and not open to any such construction as is now proposed. Direction to construe liberally (Election Law, § 330) is not license to legislate. (Sexauer & Lemke v. Burke & Sons Co., 228 N. Y. 341, 345; Matter of Bissell, 245 App. Div. 395, 396.)

The order should be affirmed, with costs.

Lehman, Ch. J., Loughran, Finch, Lewis and Desmond, JJ., concur in Per Curiam opinion; Rippey, J., dissents in opinion in which Conway, J., concurs.

Ordered accordingly.


text:
    In the Matter of Louis A. Warsoff, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued October 5, 1942;
    decided October 8, 1942.

      Robert H. Elder for appellant.
    The dismissal was error because petitioner made out a prima facie case. (Matter of Case, 214 N. Y. 199; Slocum v. N. Y. Life Ins. Co., 228 U. S. 364; Diamond v. Diamond, 259 App. Div. 690; Matter of Wicksel v. Cohen, 262 N. Y. 446.) As to “ erasures ” interlineations or alterations to the number of seven hundred eighty-one none of the objections is valid and all should have been overruled and the seven hundred eighty-one names counted. (Matter of Bromley, 128 Misc. Rep. 662; Crossman v. Crossman, 95 N. Y. 145; Matter of Wood, 144 App. Div. 259; Matter of Baldwin, 242 App. Div. 727.)

      John P. McGrath, Saul C. Cohen and Abraham J. Multer for Morton Singer, respondent.
    The burden of proof was on appellant, who failed to sustain it. (Matter of McDonnell v. Cohen, 252 App. Div. 277; 275 N. Y. 644.) Unexplained changes and alterations invalidate a designating petition. (Matter of Waters, 248 App. Div. 830; Matter of Dimenstein, 255 App. Div. 722; Farmers Loan & Trust Co. v. Siefke, 144 N. Y. 354; New Rochelle Sec. Co. v. International Thrift Society, 270 N. Y. 52; National Ulster County Bank v. Madden, 114 N. Y. 280; Gowdey v. Robbins, 3 App. Div. 353.)

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum, Paxton Blair and H. Broadman Epstein of counsel), for Board of Elections of the City of New York, respondent. The Board of
    Elections was empowered to adopt the principle that erasures and alterations invalidate a signature until explained away. There is no time for them tó defer their ruling until witnesses have been examined. (Matter of Sanford v. Commissioner of Internal Revenue, 308 U. S. 39; Matter of Baldwin, 242 App. Div. 727; Matter of Nunley v. Cohen, 258 App. Div. 746; Matter of Zelman, 255 App. Div. 832; Matter of Sullivan, 259 App. Div. 752; Matter of Marion, 174 Misc. Rep. 897.) When a designating petition has been pronounced invalid by the Board of Elections the burden is on the petitioner to show that its determination was erroneous. (Matter of McDonnell v. Cohen, 252 App. Div. 277; 275 N. Y. 644; People ex rel. Manhattan Ry. Co. v. Barker, 146 N. Y. 304; People v. Cook, 8 N. Y. 67; Morgan v. Quackenbush, 22 Barb. 72.)
   Per Curiam.

The Board of Elections was justified in its ruling that, in the absence of explanation, erasures or alterations, not initialled by the notary public, and other defects appearing on the face of the petition invalidate a sufficient number of signatures to require rejection of the petition.

The order should be affirmed.'

Lehman, Ch. J., Loughran, Finch, Ripfey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed.