text:
    In the Matter of Finsilver, Still & Moss, Inc., Appellant, against Goldberg, Maas & Co., Inc., Respondent. In the Matter of Goldberg, Maas & Co., Inc., Respondent; Finsilver, Still & Moss, Inc., Appellant.

      (Argued March 21, 1930;
    decided May 6, 1930.)

      Joseph Dannenberg for appellant.
    Section 4-a of the Arbitration Law is valid for it does not violate section 2 of article I of the Constitution- of the State of New York, nor the Fourteenth Amendment to the United States Constitution. (Bullard v. Grace Co., 240 N. Y. 388; Whitlock v. Ledford, 82 Ky. 391; Mitchel v. Curran, 1 Mo. App. 453; Dexter v. Young, 40 N. H. 30; Ruckman v. Ramson, 35 N. J. L. 565; Gowen v. Pierson, 166 Penn. St. 258; Duckworth v. Diggles, 139 Mass. 51; Matter of Berkovitz v. Arbib & Houlberg, Inc., 230 N. Y. 261; Tutein v. Hudson Valley Coke & Products Corp., 249 N. Y. 84;
      Wenger & Co. v. Propper Silk Hosiery Mills, Inc., 239 N. Y. 199; Hosiery Mfg. Corp. v. Goldston, 238 N. Y. 22; People ex rel. McLaughlin v. Police Comrs., 174 N. Y. 450; People v. Quigg, 59 N. Y. 83; Hanna v. Mitchell, 202 App. Div. 504; Divan v. Massarene, 199 App. Div. 872; Continental Securities Co. v. Interboro, 118 Misc. Rep. 11; 200 App. Div. 794; Sweeting v. American Knife Co., 226 N. Y. 119; 250 U. S. 596; Matter of King, 168 N. Y. 53.) It was unnecessary to have a trial by jury because no issues were raised and all of the facts were conceded. (Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Waldorf v. Simpson, 15 App. Div. 299; Wheeler v. Mowers, 16 Misc. Rep. 143; Chu Pawn v. Irwin, 31 N. Y. Supp. 724; Breese v. U. S. Telegraph Co., 48 N. Y. 132; Rozen v. Drydock, 7 Misc. Rep. 130; Ellis v. Keeler, 126 App. Div. 343; Upton v. Tribilcock, 91 U. S. 50.)

      Wallace T. Stock and Edwin L. Garvin for American Arbitration Association, amicus cwrice.

    The statute is constitutional and the Appellate Division erroneously gave it a meaning unexpressed, not intended by the Legislature, and derogatory of established rights. It does not deprive a participating party of any rights duly preserved by objection recorded before the arbitrators. (Willis v. City of Rochester, 219 N. Y. 427; People v. Crane, 214 N. Y, 154; Barrett v. Indiana, 229 U. S. 26; People v. Bradley, 207 N. Y. 592; Matter of Bullard v. Grace Co., 240 N. Y. 388; Jones v. Jones, 108 N. Y. 415; Matter of Smith, 197 N. Y. Supp. 373; Harkness v. Hyde, 98 U. S. 476; Van Courtland v. Underhill, 17 Johns. 405; Fudikar v. Guardian Mutual Ins. Co., 62 N. Y. 392; Halstead v. Seaman, 82 N. Y. 27; Berizzi v. Krausz, 239 N. Y. 315; Kent v. French, 76 Iowa, 187.) Assuming that section 4-a has the meaning put tipon it by the court below, there is neither denial of the right of jury trial nor due process of law. (Nagy v. Arcas Brass & Iron Co., Inc., 213 App. Div. 830; 242 N. Y, 97; Allied Mutuals Liability Ins. Co. v. Interstate Cork Co., Inc., 134 Misc. Rep. 504.)

      Harold M. Brown and Charles S. Rosenberg for respondent.
    Section 4-a of the Arbitration Law is invalid in that it violates section 6, article 1 of the New York State Constitution and the Fourteenth Amendment of the United States Constitution. (Gordon v. United States, 74 Sup. Ct. 35; 7 Wall. [U. S.] 188; Red Cross Line v. Atlantic Trust Co., 264 U. S. 109; People v. Nash, 111 N. Y. 316; Austin v. Searing, 16 N. Y. 112; Gitt v. Marqusee, 140 App. Div. 382; Bloomer v. Sherman, 2 Edw. Ch. 452; Matter of Berkovitz v. Arbib & Houlberg, Inc., 230 N. Y. 261; Stuart v. Palmer, 74 N. Y. 183; Meacham v. Jamestown R. R. Co., 211 N. Y. 346; Riglander v. Star Co., 98 App. Div. 101; 181 N. Y. 531; People v. Walter, 68 N. Y. 403.) Section 4-a of the Arbitration Law violates section 2 of article 1 of the State Constitution. (Greason v. Keteltas, 17 N. Y. 491; Snell v. Niagara Paper Mills, 193 N. Y. 433; Smith v. Western Pacific R. R. Co., 144 App. Div. 181; 203 N. Y. 499.) No contract of purchase and sale was entered into by the appellant because the alleged acceptance of the appellant dated October 3, 1928, differed from the offer of the respondent dated October 2,1928. (Senner & Kaplan Co. v. Gera Mills, 185 App. Div. 562; Davidge v. Velie, 95 Misc. Rep. 511; Hubbs & Co. v. Richard, 119 Misc. Rep. 436; 212 App. Div. 868; Feigel & Bros., Inc., v. Doll & Sons, Inc., 186 N. Y. Supp. 529; Machinery Utilities Co., Inc., v. Fry, 224 App. Div. 392; Eustathopoulo v. Gillespie, 218 App. Div. 179; General Silk Importing Co., Inc., v. Smith, 200 App. Div. 750; Nundy v. Matthews, 34 Hun, 74.) If section 4-a is valid then the issues of fact raised by the answering affidavit of the respondent on the motion below should have been referred to a-jury for determination pursuant thereto. (Matter of Gresham & Co., Ltd., 202 App. Div. 211; Matter of Palmer & Pierce,

      Inc., 195 App. Div. 523; Matter of Schwartzenbach, 203 App. Div. 845.)
   Cardozo, Ch. J.

The defendant in this arbitration proceeding, Goldberg, Maas & Co., Inc., signed and delivered to the plaintiff, Finsilver, Still & Moss, Inc., an order for the purchase of twenty-five pieces of merchandise, described as style number 195, the price to be six dollars and ninety-five cents per yard, and delivery to be made at stated times. There was an arbitration clause as follows: “All claims, demands, disputes, differences, controversies and misunderstandings arising under, out of, or in connection with, or in relation to this contract, shall be submitted to and be determined by arbitration, pursuant to the Arbitration Law of the State of New York, in The Tribunal of Justice known as the Court of Arbitration established and conducted by the American Arbitration Association and in accordance with its Rules.”

The plaintiff, upon receipt of the order, notified the defendant in writing of its acceptance, adding a description of the merchandise as “ Karavan Kamel Kloth,” forty-eight inches in width and thirty to thirty-five in length.

A dispute arising thereafter as to the width of goods delivered, the defendant gave notice to the plaintiff that future deliveries would be rejected. Upon this the plaintiff made demand for arbitration. A proceeding, based upon a submission, went forward to the stage of an award, but in the end was abortive for lack of an acknowledgment. That proceeding having failed, another was begun. In default of a new submission, there was adherence to the forms prescribed by the executory agreement. Under this the rules of the American Arbitration Association were to govern the procedure. The defendant was notified by the association that arbitration was demanded, and was requested to join in the selection of an arbitrator. The request having been ignored, the association, in adherence to its rules, made its own choice of an arbitrator from the members of a panel, and so notified the defendant, informing it also of the time and place of hearing. Again the defendant paid no attention to the warning. Upon its failure to respond, the arbitration proceeded in its absence. The arbitrator made an award of damages in favor of the plaintiff, upon which judgment was thereafter entered pursuant to an order of the court. The court at the same time denied a motion by the defendant for a perpetual injunction, or in the alternative for the submission to a jury of the question of the existence of a contract. Upon appeal to the Appellate Division the judgment and order were reversed on the ground that there had been an unconstitutional denial of due process of law.

The Arbitration Law of this State, as first enacted in 1920 (Cons. Laws, ch. 72), declared agreements for the arbitration of future differences to be valid and irrevocable, but did not set up any machinery whereby an award would be effective in the absence of an order that arbitration should proceed (Arbitration Law, § 3; Matter of Bullard v. Grace Co., 240 N. Y. 388). The workings of the statute were thought to have disclosed inconveniences as a result of that omission. Thus, where one of three arbitrators withdrew before the proofs had been submitted, there was need of a new order to give validity to the proceeding continued by the others (Matter of Bullard v. Grace Co., supra). Still more hapless was the plight of a party to a controversy if his adversary was a nonresident, without the jurisdiction. The process of the court could not reach the recalcitrant opponent to coerce response to a petition that the arbitration should proceed. In a much litigated case,.a claimant so situated tried the experiment of an arbitration without preliminary judicial sanction. The adverse party, resident in England, was notified of the proceeding, but refused to have a part in it, and later contested the jurisdiction when sued on the award abroad. On the authority of our decision in Matter of Bullard v. Grace Co. (supra), the House of Lords decided that the award was ineffective, though declaring at the same time that according to its own view of the law and the practice in Great Britain, an antecedent order was not an indispensable condition (Liverpool Marine & Gen. Ins. Co., Ltd., v. Bankers & Shippers Ins. Co., Jan. 29,1926, reported in 24 LI. L. Rep. 85, H. L., reversing a decision of the Court of Appeal reported in the New York Law Journal of March 4, 1925, sub nom. Bankers & Shippers Ins. Co. v. Liverpool Marine & Gen. Ins. Co., Ltd.; cf. Matter of Bullard v. Grace Co., supra, p. 396.)

Faced by these mischiefs, the Legislature by an amendment adopted in 1927 added to the Arbitration Law a section, designated 4-a, which reads as follows: “ Where pursuant to a provision in a written contract to settle by arbitration a controversy thereafter arising between the parties to the contract, or a submission described in section two hereof, an award has been, or is hereafter rendered, without previous application to the supreme court, or a judge thereof, as required by section three hereof, such award shall notwithstanding anything contained in section three hereof be valid and enforceable according to its terms, subject, nevertheless to the provisions of this section. At any time before a final judgment shall have been given in proceedings to enforce any such award whether in the courts of the state of New York, or elsewhere, any party to the arbitration who has not participated therein may apply to the supreme court, or a judge thereof, to have all or any of the issues hereinafter mentioned determined, and if, upon any such application the court, or a judge thereof, or a jury, if one be demanded, shall determine that no written contract providing for arbitration was made, or submission entered into, as the case may be, or, that such party was not in default by failing to comply with the terms thereof, or that the arbitrator, arbitrators and, or umpire was, or were not appointed or did not act, pursuant to the written contract, then and in any such case, the award shall thereupon become invalid and unenforceable. Where any such application is made any party may demand a jury trial of all or any of such issues, and if such a demand be made, the court or a judge thereof shall make an order referring the issue or issues to a jury in the manner provided by law for referring to a jury issues in an equity action.”

This section of the statute has been condemned by the Appellate Division as a denial of due process. Arbitration presupposes the existence of a contract to arbitrate. If a party to a controversy denies the existence of the contract and with it the jurisdiction of the irregular tribunal, the regular courts of justice must be open to him at some stage for the determination of the issue. The right to such a determination, either at the beginning or at the end of the arbitration or in resistance to an attempted enforcement of the award, is assured by the Constitution as part of its assurance of due process of law. In the view of a majority of the Appellate Division, the statute nullifies this right, or burdens it unreasonably, by attaching a condition that if the contract be upheld, the party unsuccessfully disputing its existence shall be deemed to have waived the benefit of a hearing before the arbitrators, though the proceeding be still pending.

We think the holding has its origin in a misconstruction of the statute, its aim and its effect. What the amendment seeks to do is to give validity to the practice which in the opinion of the English judges or most of them was permissible already without the aid of an amendment. A “ party might not wish to enter upon an expensive arbitration which might be a nullity, and he was given power to get the validity of the arbitration determined beforehand by the court. But this * * * still left it free to a party whose arbitration tribunal was duly constituted under the contract, to proceed at his risk, and enforce his award, if no objection could be raised to it ” (Scrutton, L. J., in Bankers & Shippers Ins. Co. of N. Y. v. Liverpool Marine & Gen. Ins. Co., Ltd., Court of Appeal, supra). This being the aim, the question is whether there has been any infringement of constitutional guaranties in making it effective. Two classes of parties are covered by the statute, those who stay out of the arbitration, and those who go in. A party to a controversy, informed by his adversary that there is to be a hearing by an arbitrator, may choose to stay out of the arbitration altogether. If he does, the statute is explicit in the protection of his rights. He may be heard by a court or judge in support of his contention that the arbitration is of no effect in that he never bound himself to arbitrate, and may have the issues of fact, if any, submitted to a jury. Even then, it is not too late to have a part in the arbitration if the proceeding is still open. There is no suggestion in the statute that as a penalty for resistance he shall forfeit any rights that would otherwise be his. The proceeding will often be kept open by a stay or by adjournments. If so, the unsuccessful denial of the jurisdiction of the arbitrators will not prejudice the opportunity to go before them on the merits.

So much for the party who stays out of the arbitration altogether, or who seeks a hearing in the court, with the right to trial by jury, before electing to go in. Eights substantially as great, however, are assured to the party who is in from the beginning. Nothing in the statute denies to one so situated the right to participate in the arbitration, and still contest the jurisdiction. On the contrary, the section opens with the declaration that the award shall be valid, though made without previous application to the court, in those cases and in those only where the arbitration is “ pursuant to ” the provisions of a contract. If it is not pursuant to a contract, if in truth there is no contract at all or none calling for arbitration, the self-constituted tribunal is a nullity, without power to bind or loose by force of its decision. We assume that circumstances may exist in wdiich a party to an arbitration, joining in its proceedings without protest or disclaimer, may be found to have joined by implication in the appointment of the arbitrators, and to have confirmed their jurisdiction, if otherwise defective. The limits of this implication and its effect may be postponed for definition until the event creates the need. On the other hand, the rule is well established and of general validity that where there is seasonable protest or disclaimer in response to a claim of jurisdiction, the protest or disclaimer is not nullified by proceeding thereafter to a hearing on the merits (Harkness v. Hyde, 98 U. S. 476, 479; Southern Pac. Co. v. Denton, 146 U. S. 202, 209; Hassler, Inc., v. Shaw, 271 U. S. 195; Jones v. Jones, 108 N. Y. 415, 425). We see no reason to doubt that the rule applies as fully to a proceeding before an arbitrator (Kent v. French, 76 Iowa, 187) as to one before a referee or before any board or officer who asserts the right to judge. The decision in Christman v. Moran (9 Penn. St. 487), to the effect that participation in the hearing is to be deemed a waiver of the protest was made many years ago (1848), before the underlying principle was clearly understood. It cannot be accepted in this State as embodying existing law. In the light of existing law we approach the amendment and determine its effect. Certain it is that in the terms of the statute there is no express denial of the right to join in the proceeding under protest and then contest the jurisdiction. If denial was intended, it has been left to doubtful implication. The implication should be clear before a right so fundamental will be held to have been lost. In the absence of a contract expressing a consent to arbitrate, an award by an arbitrator is an act of usurpation. Nowhere does the statute say that its quality shall be different. As an act of usurpation, it is subject to be challenged whenever and wherever it is put forward by the usurper as a source of rights and duties. Till there is an adjudication of its validity by a competent judicial officer, as for example upon a motion after due notice to confirm of to vacate it, the issue of jurisdiction is open at the instance and for the benefit of any litigant aggrieved.

We are not forgetful in all this of the element of obscurity introduced into the statute by the description of the remedy available to a litigant who does not fight the arbitration from within, but keeps out from the beginning. Why say that such a one may attack the jurisdiction of the arbitrators if others may do the same? The task of judicial construction would be easier if statutes were invariably drafted with unity of plan and precision of expression. Indeed, adherence to the same standards would be useful also in opinions. The ideal being unattainable, we must not exaggerate the significance of deviations from the perfect norm. Very possibly the description of the remedy had its origin in excess of caution. More probably the purpose was to assure to one so situated the privilege of a jury trial, which was then explicitly conceded. By contrast, one who fights from within, and has had a part in the proceeding, may lose the privilege of a jury in his attack on jurisdiction and be forced to abide by the decision of a judge. The motion to confirm is equivalent to a suit in equity to carry into effect the terms of the agreement and the arbitration had thereunder. In suits for specific performance there is no constitutional right to the verdict of a jury, though the existence of a contract be the basis of the controversy.

We hold that a party who joins in an arbitration after seasonable protest has the right, none the less, to contest by appropriate forms of challenge the jurisdiction of the' arbitrators, and that this right has not been taken away by reasonable implication through the concession of a particular remedy to a party who stays out. In so holding we are not to be understood as assenting to the view that there would be a denial of due process of law if the right had been withheld. There is no need to inquire whether due process of law will permit the Legislature to say that a party to such a controversy, failing in his challenge to the jurisdiction of the arbitrators after a contest in the court, shall be penalized thereafter by forfeiting the right to a hearing before the arbitrators while the proceeding is still open. It is a very different thing to say that to take voluntary part before the arbitrators in a trial upon the merits shall operate thereafter as a waiver of the right to contest the jurisdiction. Such a result has been worked out, in one State at least, without the aid of any statute (Christman v. Moran, supra). The conclusion may have been wrong, but there is little reason to believe that it was also unconstitutional. Such cases as York v. Texas (137 U. S. 15, 20, 21); Western Life Ind. Co. v. Rupp (235 U. S. 261, 271, 272), and Chicago Life Ins. Co. v. Cherry (244 U. S. 25, 29) are sign posts pointing us with distinctness along another route. The party who contests the jurisdiction may keep out. If he chooses to go in, the Legislature may say to what extent the going shall be interpreted as a waiver of other rights. In this case it has been generous, and has said that though in, he may wage the contest as if out.

The question remains as to the remedy, if any, that should have been accorded to the defendant upon its motion for an injunction and for alternative relief. It had refrained from taking part in the hearings before the arbitrator. That being so, by the very terms of the statute, it was entitled to a jury trial as to the existence of a contract, if any issue of fact was raised by the petition and the answer. We think an issue, not frivolous, remains to be determined. The order for the goods, it will be remembered, calls for twenty-five pieces of style No. 195, and does not otherwise describe them. The acceptance adds to the description a statement of the width and length. The break between the parties had its origin in a dispute about the width. Whatever the merits of the dispute, there was a variance in form at least between offer and assent. The plaintiff insists that the variance was unsubstantial, that it was one in form only (Williston, Contracts, § 78). There was, so it insists, a standard length and width, which were identified with certainty by the style number without more (Mesibov, etc., Inc., v. Cohen Bros. Mfg. Co., Inc., 245 N. Y. 305, 312). Whether this is so is a question that must be determined after trial. A suggestion, too, there is that the defendant assented to the variance, if there was any, by going forward with performance and accepting a delivery (Pettibone v. Moore, 75 Hun, 461, 464; Williston, Contracts, § 90), but this in turn is met by explanation or denial. Again a trial is necessary for choice between conflicting claims. The arbitration clause falls if a contract was never made.

The judgment of the Appellate Division vacating the award should be reversed and the judgment of the Special Term affirmed without costs to either party.

The order of the Appellate Division perpetually enjoin ing the enforcement of the award should be modified by directing a trial by jury of the existence of a contract, and staying the enforcement of the judgment until the hearing and determination of the issues so referred.

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


source: Caselaw Access Project

author: Pound, J.

license: Public Domain

text:
    Hall-Mark Realty Corporation, Respondent, v. Mary T. McGunnigle, Individually and as Executrix of Stephen A. McGunnigle, Deceased, Appellant.
    (Argued March 26, 1930;
    decided May 6, 1930.)

      James K. Foster and Daniel Underhill for appellant.
    Neither King’s nor Sevin’s heirs retained any interest in
      the westerly half of Division avenue and the three recent deeds could not revive any interest in either King’s or Sevin’s heirs. (Herman on Estoppel, 754; Bigelow on Estoppel [6th ed.], p. 397; Goodlittle v. Bailey, 2 Cowp. 597; Wendell v. People, 8 Wend. 183; White v. Williams, 48 N. Y. 344; Northrop v. Sumney, 27 Barb. 196; Jackson v. Camp, 1 Cow. 605; Sparhawk v. Bullard, 42 Mass. 95; Randall v. Chase, 133 Mass. 210.) It was clearly the intention of the grantors thereof to convey up to the line of the Van Veghten farm. (Rose v. Hawley, 118 N. Y. 502; Real Prop. Law, § 240, subd. 3; Matter of Ladue, 118 N. Y. 213; Bernstein v. Nealis, 144 N. Y. 347; Thayer v. Finton, 108 N. Y. 394; Childs v. Fichett, 4 Me. 471; Grandin v. Hernandez, 29 Hun, 399; Van Winkle v. Van Winkle, 184 N. Y. 193; Thompson v. Major, 58 N. H. 242.) The defendant’s title is marketable. (Todd v. Union Dime Sav. Bank, 128 N. Y. 636; Norwegian Evangelical Free Church v. Milhauser, 252 N. Y. 186; Reformed P. D. Church v. M. A. Bldg. Co., 214 N. Y. 268; Maupin on Marketable Titles, p. 770; Close v. Martin, 208 Mass. 236; Rawle Covts. for Title [5th ed.], § 259; Brown v. Witter, 10 Ohio St. 142.)

      Henry A. Uterhart and Alfred M. Schaffer for respondent.
    The descriptions in the deeds show conclusively that Division avenue was laid out entirely on the land acquired by King. (Kings County Fire Ins. Co. v. Stevens, 87 N. Y. 287; Gouverneur v. N. I. Co., 134 N. Y. 355; Sibley v. Holden, 10 Pick. 249; Smith v. Slocomb, 9 Gray, 36; Cottle v. Young, 59 Me. 105.) The defendant’s title is unmarketable. (Wright v. Mayer, 47 App. Div. 604; Blanck v. Sadlier, 153 N. Y. 551; Weinberg v. Sanders, 204 App. Div. 409; Chesebro v. Moers, 233 N. Y. 75; Maupin on Marketable Titles, 707; Ramapo v. Mapes, 216 N. Y. 362.)
   Pound, J.

Plaintiff sues to recover a down payment on the purchase of about eighty-four acres of farm land on the ground that the title tendered is unmarketable. The question is as to the ownership of a strip of land fifty feet wide and about eight hundred and eighty feet long running across the premises, being the westerly half of a so-called Division avenue laid out on a map between two contiguous farms by the owner of one of them in 1854 but never opened. One farm was known as the Van Veghten or King farm; the other as the Sevin farm. Division avenue is not and has never been either a public or private road, thoroughfare or highway.

It is not perfectly clear whether Division avenue was laid out entirely on the King farm or whether half of it was laid out on the Sevin farm. Reading all the descriptions in all the deeds together, the conclusion is reasonably certain that neither King’s nor Sevin’s heirs retain any interest in the westerly half of the paper road or strip of land designated as Division avenue, even though some of the descriptions appear to be ambiguous and inconsistent. Properly construed, the deeds of the land included in the Sevin farm run easterly to the Van Veghten or King farm and the deeds of the land included in the Van Veghten or King farm run westerly to the Sevin farm. All the land in the so-called Division avenue is thus included either in the King farm or the Sevin farm. Both farms now having the same owner, it is not necessary to fix the exact location of Division avenue as laid out on the map. When the line of another tract is called for in the description of a deed as one of the boundaries of the land conveyed, the line ordinarily runs to such boundary line. When such line is certain and notorious, it is to be treated as the monument or boundary rather than the ambiguous location of the center of a paper street which need not be taken as a monument or permanent landmark for the purpose of fixing the boundary line in this case. (Wendell v. People, 8 Wend. 183, 190.) This construction is plainly consistent with the intention of the grantors herein. The fixed boundaries govern. It does not appear that any one can be harmed or discommoded by giving effect to the obvious intent of the various grantors. As there is no “ reasonable decent, probability ” that the purchaser will . ever be imperiled by the starting of a law suit by other claimants, the title is marketable. (Norwegian E. F. Church v. Milhauser, 252 N. Y. 186.)

The judgment should be reversed, with costs in all courts, and judgment for specific performance granted as demanded in the answer.

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

Judgment accordingly.


author: Hubbs, J.

text:
    Samuel Harriman, an Infant, by Edmund Harriman, His Guardian ad Litem, Respondent, v. New York, Chicago and St. Louis Railroad Company, Appellant. Samuel M. Harriman, Respondent, v. New York, Chicago and St. Louis Railroad Company, Appellant.

      (Argued March 21, 1930;
    decided May 6, 1930.)

      Evan Hollister for appellant.
    In the absence of any evidence that any defect in the traveled portion of the private road was the proximate or even contributing cause of the accident, it was error for the trial court to deny the defendant’s motion for a dismissal of the complaints. (Powers v. N. Y. C. R. R. Co., 60 Hun, 19; Welsh v. Cornell, 168 N. Y. 508; Crofoot v. Syracuse, B. & N. Y. R. R. Co., 75 App. Div. 157; Delaware, L. & W. R. R. Co. v. Koske, 279 U. S. 7.) The complaints should be dismissed upon the merits because, as a matter of law, the plaintiffs were using the private roadway as licensees and not as invitees, at the time of the accident.
      (Meiers v. Koch Brewery, 229 N. Y. 10; Lamore v. Crown Point Iron Co., 101 N. Y. 391; Cornell v. Skaneateles R. Co., 15 N. Y. Supp. 581.)

      Dana L. Spring for respondents.
    The defendant owed the plaintiffs the duty of reasonable care. (Prince v. N. Y. C. R. R. Co., 14 N. Y. Supp. 817; Cotton v. N. Y., L. & W. R. R. Co., 20 N. Y. Supp. 347; Elliott on Railroads [2d ed.J, § 1151; Smith v. N. Y. C. R. R. Co., 63 N. Y. 58; Miller v. Harvester Co.. 193 App. Div. 258; Wharton on Negligence [2d ed.], § 437; Wallace v. Casey Co., 132 App. Div. 40; Glanzer v. Sheppard, 233 N. Y. 236; Marks v. Nambil Realty Co., Inc., 245 N. Y. 256; Skuse v. Erie, 217 App. Div. 818; Thompson on Negligence, vol. 2, § 1502.) The plaintiff were rightfully using the road.) (Meiers v. Koch Brewery, 229 N. Y. 10.)
   Hubbs, J.

Anthony Pfohl is .the owner of a farm in Erie county. The dwelling and other buildings are upon the south side of the highway and about three hundred feet therefrom. Years ago the railroad company constructed its road between the buildings and the highway. It also constructed a crossing over its tracks and a roadway leading to the highway. The tracks of the railroad were laid on an embankment and it was necessary also to construct the roadway on an embankment. The roadway embankment was constructed of cinders. It was elevated twelve feet above the natural level of the ground in order to reach the grade of the railroad and was about thirteen feet wide on top. For years the roadway so constructed had been used by the occupants of the farm and those having occasion to go from the farm to the highway. The railroad company maintained it and had made some improvements upon it. The sectionmen placed cinders on it. It was not an ordinary farm crossing, constructed by a railroad company to enable a farmer to carry on his farm work by going from one part of his farm to another. It was a crossing and road constructed for an entirely different purpose — to enable the farmer and others rightfully there to come and go between the farm and the main highway as had been done before the railroad was constructed. It is the only way from the buildings to the highway.

A few years ago the rails of the railroad were elevated and the railroad company at that time placed cinders on the roadway to bring it up to the new level of the railroad.

In November, 1927, Edmund Harriman, who lived on an adjoining farm, drove in a light truck across lots over a private lane from his farm to the farm dwelling in question. He was accompanied by his infant nephew, one of the plaintiffs. His purpose was to borrow a milk can. It appears that it was a custom for those neighbors to borrow implements, tools, etc., from each other. He was informed by Mr. Pfohl that the milk can which he wanted was at another neighbor’s, who lived on the main highway, and he was instructed to go there and get it. He proceeded over the roadway in question toward the highway. Immediately after his truck passed over the railroad tracks, the left rear wheel cut into the soft cinders, the bank cut off, and the truck went over the embankment. The infant plaintiff was injured and has recovered a verdict. His father has recovered a verdict for expenses incurred by him growing out of his son’s injury. On several other occasions vehicles had gone off the embankment. We have reached the conclusion that the question of the defendant’s negligence and of the plaintiff’s freedom from negligence was properly submitted to the jury.

It is urged by the appellant that the infant plaintiff was a bare licensee upon the roadway and that the only duty which the appellant owed to him was not to willfully injure him. We think the appellant has mistaken the ground upon which liability is predicated.

While the record does not disclose the reason why the railroad constructed the crossing and roadway, it must be assumed that it was under some obligation to do so, either under the statute requiring railroad companies to construct farm crossings (Buffalo Stone & Cement Co. v. D., L. & W. R. R. Co., 130 N. Y. 152) or because of a covenant to that effect contained in the grant of the right of way. (Prince v. N. Y. C. & H. R. R. R. Co., 38 N. Y. St. Repr. 793.)

Acting under its obligation, it constructed the roadway on an embankment from the highway to its tracks. It knew that its embankment and tracks cut off the access from the farm buildings to the highway. It actively interfered and changed natural conditions by constructing the embankment, not upon its own land, but upon the land of its grantor. It knew that the only way that its grantor and those lawfully going and coming to and from the highway to the farm could proceed would be over the roadway which it. undertook to construct. After its construction, it undertook to maintain it. The jury has found, upon sufficient evidence, that it constructed and maintained it in an unsafe and negligent manner. When the defendant undertook to carry out its obligation to construct and maintain a roadway, the law placed upon it the duty of performing the obligation with reasonable care. To construct and maintain it so that it should be reasonably safe for travel in the ordinary way by those who were lawfully using it was the measure of its duty.

The duty of an actor to exercise care in the performance of an obligation due to another may inure to a third person under certain circumstances. The principle has been recognized and enforced by the courts in this State ever since the decision of Thorne v. Deas (4 Johns. 84), and was well established in England long before that time. (Coggs v. Bernard, 2 Ld. Raym. 909; 1 Street, Foundations of Legal Liability, 186.)

The principle has been applied in various situations. The manufacturer of personal property who has reason to believe that the property will probably be used by others than his vendee without testing it is under a legal duty to manufacture with reasonable care, so that third persons will not be injured because of the negligent construction of the article manufactured. The duty to use care in manufacturing may extend beyond the immediate purchaser. (MacPherson v. Buick Motor Co., 217 N. Y. 382; Rosebrock v. General Electric Co., 236 N. Y. 227.) One who builds a scaffold for another may be hable to a third person injured while using it, because of its negligent construction. (Devlin v. Smith, 89 N. Y. 470.) An independent contractor owes to the employees of other contractors working on the same structure the duty of exercising care in performing his work if it is of such a nature that it probably will be a source of danger to other employees while lawfully engaged in work on the structure. (McGlone v. Angus, Inc., 248 N. Y. 197.) Chief Judge Cardozo has collated many cases involving the principle in his opinion in Glanzer v. Shepard (233 N. Y. 236).

We have reached the conclusion that the jury was justified in finding that if the defendant, in view of the situation, had exercised the care of an ordinarily prudent person, it would have apprehended that the probable result of its negligent construction and maintenance of the roadway would be injury to persons lawfully suing it.

The judgment in each action should be affirmed, with costs.

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

Judgments affirmed.


text:
    Zurich General Accident and Liability Insurance Company, Ltd., Respondent, v. Watson Elevator Company, Inc., Defendant, and Cross and Brown Company, Appellant.
    (Argued March 18, 1930;
    decided May 6, 1930.)

      Walter L. Glenney for appellant.
    As agent of the building, the defendant-appellant could not be held liable for an accident resulting from negligence of the employees in the building. (Loeb v. Hellman, 83 N. Y. 601; Slater v. Barnes, 207 App. Div. 413; Reynolds v. Strong, 103 N. Y. Supp. 106; MacPherson v. Buick Motor Co., 217 N. Y. 382; Schloendorff v. New York Hospital, 211 N. Y. 125.)

      Fred H. Rees for respondent.
    Defendant-appellant, being the sole agent and in control and management of the entire building, with the exception of the portion used by the owner, is legally liable for an accident resulting from the negligence of the elevator operator and the superintendent. (Caitini v. American Ry. Express Co., 202 App. Div. 336; 234 N. Y. 585; Charles v. Barrett, 233 N. Y. 127; Braxton v. Mendelson, 233 N. Y. 122; Vogemann v. American Dock & Trust Co., 131 App. Div. 216; Scioloro v. Asch, 198 N. Y. 77.) The defendant-appellant is directly liable for the negligence of any servant employed by it and working in connection with the management of the premises. (Mollino v. Ogden, 243 N. Y. 450; Marsh v. Hand, 120 N. Y. 315; Heinemann v. Heard, 50 N. Y. 27; Witney v. Martine, 88 N. Y. 535; Orcutt v. Century, 201 Mo. 424; Tippecanoe v. Jester, 180 Ind. 357.)
   Hubbs, J.

The appellant Cross & Brown Company is a domestic corporation engaged, among other things, in the business of acting as managing agent for owners of buildings and real property. The Rudolph Wurlitzer Company, Inc., was the owner, under a long term lease, of a sixteen-story store and office building on West Forty-second street in the borough of Manhattan, New York city. In June, 1921, the appellant and the owner of the building entered into a contract in writing in which it was agreed that the appellant should act as agent of the owner for the leasing of space in the building for a commission of one per cent on the gross rental on leases closed by it. It also agreed to take over the management of the building for the sum of $2,500 per year, the consent of the owner to be first obtained before any outlay for alterations or repairs should be contracted for except in case of emergency repairs.

The first four floors of the building were occupied by the owner for store purposes. The appellant entered upon the performance of its duties under the contract. It hired employees to operate the elevators and to perform other work about the building. When employees were hired by appellant they were each required to sign a card which recited that employment was accepted with Rudolph Wurlitzer Company, owner of the building, and that employment might be discontinued by the owner or Cross & Brown Company, its agent, at any time without notice. The appellant paid the employees their wages and each'month sent a statement of the exact amount so expended to the owner, which remitted the amount to the appellant. The appellant did not receive any percentage or commission on the wages, or make any charge against the owner for such service, except as it was included in the $2,500 yearly compensation received by it. The owner secured indemnity insurance in its name which covered elevator employees. The appellant discharged employees on occasion and hired others. It hired a man who was classified as superintendent of the building and who had the supervision of the employees and authority to hire and discharge. His wages were paid by the owner in the same way as the wages of the other employees and he signed the same kind of card stating that he was in the employment of the owner.

The appellant had a separate department for operating buildings and had an operating manager who had charge of building superintendents. He was paid by the appellant. The owner had exclusive charge of the first four floors of the building with which floors the appellant had nothing whatever to do. The appellant considered itself responsible for the proper management of the building outside of the part occupied exclusively by the owner.

On October 22d, 1923, a passenger in an elevator in that part of the building under the management of the appellant met with an injury which caused his death. The plaintiff’s version of the accident, • which has been accepted by the trial court, was that on the morning of the accident the elevator operator, on entering the elevator, discovered on the floor of the elevator a broken spring which controlled the' position of the operating lever, that he called the attention of the superintendent of the building to it and was told by the superintendent to use the elevator as it was, and that the defect caused the accident.

An action was commenced by the personal representative of deceased against the owner to recover damages because of his negligent death. The owner was insured by the plaintiff in this action. It settled the action against the owner, and by agreement was subrogated to the rights of the owner against the appellant.

The question for determination is whether the appellant is liable for the damage suffered by the owner, in being obliged to pay damages to the personal representative of the deceased passenger.

The action is based on an alleged implied contract of indemnity to recover over against the alleged primary wrongdoer. It is alleged that the appellant failed to manage the building properly according to its contract and that thereby the- owner suffered damage. The principle of respondeat superior is not involved. The negligence which caused the accident was either that of the superintendent of the building or of the operator, or of both.

There could not have been any negligence on the part of the appellant for failing to inspect the elevator for it was inspected by a representative of an insurance company the Friday before the Monday on which the accident happened, and found to be in proper order. For all that appears the spring might have broken within a few minutes before the operator came in the morning and discovered it. In order to hold the appellant liable it must be held that it is legally responsible for the personal act of the superintendent of the building and the operator, performed without its knowledge.

The principle of law applicable was clearly stated by Field, J., in Barnard v. Coffin (141 Mass. 37, at 41): “ The principle which runs through the cases is, that, if an agent employs a sub-agent for his principal, and by his authority, express or implied, then the sub-agent is the agent of the principal, and is directly responsible to the principal for his conduct, and, so far as damage results from the conduct of the sub-agent, the agent is only responsible for a want of due care in selecting the sub-agent; but if the agent, having undertaken to do the business of his principal, employs a servant or agent, on his own account, to assist him in what he has undertaken, such a sub-agent is an agent of the agent, and is responsible to the agent for his conduct, and the agent is responsible to the principal for the manner in which the business has been done, whether by himself or by his servant or agent.”

Stone v. Cartwright (6 T. Rep. 411) is an old English case often cited by the courts of this country. In that case Lord Kenyon, Chief Judge, said: “In all these eases I have ever understood that the action must either be brought against the hand committing the injury, or against the owner for whom the act was done: but it was never heard of that a servant who hires labourers for his master was answerable for all their acts.”

Many cases illustrating the principle are collated in a note to the case of Smith v. Rutledge (61 A. L. R. 273, at 277). Applying that principle to the facts of this case we reach the conclusion that the appellant is not hable to the owner for the personal negligent act of the superintendent of the building or of the operator of the elevator.

If the appellant had contracted to take over the exclusive control and operation of the building as an independent contractor, employing its own servants and paying their wages from its own funds, and receiving its compensation from the owner for such services, including its disbursements, a different situation would be presented. In the case of Mollino v. Ogden & Clarkson Corp. (243 N. Y. 450), relied upon by the respondent herein, the managing agent had possession of the building and agreed to make necessary repairs. It permitted the building to remain in a dangerous condition after it should have had knowledge of the condition. In brief, it breached its contract to make repairs, and as a result the owner was obliged to pay damages to a third party who had been negligently injured because of such breach. The principle decided in that case is not applicable to this case.

The appellant here was not chargeable with notice of any defect in the elevator. It was not negligent in fading to inspect it. The superintendent and the elevator operator were not its servants. It is not claimed that it was negligent in hiring or retaining incompetent servants. The evidence does not tend to establish that the appellant failed to perform any duty which it owed to the owner of the building.

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

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

Judgments reversed, etc.


author: Crane, J.

text:
    Philip Bernstein, Appellant, v. Abraham Kritzer et al., Respondents.
    (Submitted March 20, 1930;
    decided May 6, 1930.)

      Maxwell Slade, David H. Slade, J. Jacob Hahn and C. Edward Benoit for appellant.
    Defendants’ indorsement of the notes and the execution of the guaranty having been made at about the same time as the principal sales contract between plaintiff and Louis Kritzer, all of said contracts are, therefore, a part of the same transaction. The consideration moving between plaintiff and Louis Kritzer, as purchaser, is as a matter of law sufficient consideration for the guaranty and indorsements. (Smith v. Molleson, 148 N. Y. 241; Matter of Board of Commissioners, 52 N. Y. 131; Erie County Sav. Bank v. Coit, 104 N. Y. 532; McNaught v. McClaughry, 42 N. Y. 22; Jonas & Naumburg Corp. v. Michlin, 222 N. Y. Supp. 442 ; 220 App. Div. 649; Pennsylvania Coal Co. v. Blake, 85 N. Y. 226; Strombald v. Hanover Fire Ins. Co., 121 Misc. Rep. 322; Severson v. Macomber, 153 App. Div. 482.) It was reversible error to admit parol evidence either to contradict the writings in an attempt to show that Louis Kritzer was not to pay for the stock except from money that he should receive as salary, or that the parties to the sale entered into the transaction with the motive of defrauding the creditors of the corporation; or that it was understood that defendants were under no obligation to plaintiff by reason of their indorsements of the notes and the signing of the guaranty; or to show failure or inadequacy of consideration. (Mitchell v. Lath, 247 N. Y. 377; St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N. Y. 30; Newburger v. American Surety Co., 242 N. Y. 134; Ruppert v. Singhi, 243 N. Y. 156; Williston on Contracts, § 631; Wigmore on Evidence, §§ 2400, 2425; Jamestown Business College v. Allen, 172 N. Y. 291; Camp v. Horn, 208 App. Div. 122; Englehorn v. Reitlinger, 122 N. Y. 76; Emmett v. Penoyer, 151 N. Y. 564; Sturmdorf v. Saunders, 117 App. Div. 762; 190 N. Y. 555; Stanton v. Granger, 125 App. Div. 174; 193 N. Y. 656.) The parol evidence violated the rule that such evidence is not admissible where the parties in separate agreements set forth the intent of, and the consideration for the instruments sued upon. (Franco-Americaine v. Bergstrom, 171 App. Div. 870; 225 N. Y. 710; Weiss v. Brown, 201 App. Div. 560.) The parol evidence violated the rule that such evidence is not admissible for the purpose of showing that a contracting party to a written contract assumed no obligation where the writing indicates that an obligation was assumed. (Gridley v. Dole, 4 N. Y. 486; Girard Nat. Bank v. Brody, 122 Misc. Rep. 790; Guinzburg v. Blustein, 121 Misc. Rep. 784; Mead v. National Bank, 89 Hun, 102; German Publication Soc. v. Pichler, 97 Misc. Rep. 644; Blodgett v. Merrill, 20 Vt. 509; Calvosa v. Donovan, 171 N. Y. Supp. 388.)
    A. S. Cutler, I. William Beisman and Jay Winston for respondents.
    It was proper for defendants to prove that they received no consideration for their indorsement and that the delivery, if any, of worthless stock certificates in escrow to plaintiff’s mother-in-law, was in reality no consideration. (Higgins v. Ridgway, 153 N. Y. 130; Citizens Sav. Bank & Trust Co. v. Paradis & Sons, 146 Atl. Rep. 3.) The parol evidence rule does not bar the testimony. This is not an attempt to vary or add to a written instrument. The evidence here looks to the root of the contractual relationship and seeks to destroy the written instrument and to show there never was a contract. (Thomas v. Scutt, 127 N. Y. 133; Grannis v. Stevens, 216 N. Y. 583; Higgins v. Ridgway, 153 N. Y. 130; Citizens’ Sav. Bank & Trust Co. v. Paradis & Sons, 146 Atl. Rep. 3; Smith v. Dottenweich, 200 N. Y. 299; Garfield Nat. Bank v. Colwell, 57 Hun, 169; Rosenthal v. United Transp. Co., 196 App. Div. 540; Savage Realty Co., Inc., v. Lust, 203 App. Div. 55; Swift v. Beers, 3 Den. 70; Joslyn v. Dow, 19 Hun, 494; Barton v. Port Jackson, 17 Barb. 397; Lafarge v. Herter, 9 N. Y. 241; Sprague v. Webb, 168 App. Div. 292; Dressel v. Hauser, 101 Misc. Rep. 574; Materne v. Horowitz, 101 N. Y. 469.)
   Crane, J.

The Chelsea Auction Rooms & Art Galleries, Inc., was a domestic corporation consisting of two stockholders, Abraham Kritzer and his wife, Augusta Kritzer. Louis Kritzer, the father of Abraham, may have been a stockholder, as he was called “ a dummy in the corporation, a third party.” Abraham Kritzer said his father was a dummy for him and his wife. Some time prior to the transactions here in question, Abraham Kritzer and his wife sold fifty per cent of the stock, or 252 shares, to Philip Bernstein, a brother-in-law, who had married Abraham’s sister. Philip and his wife’s relatives did not get along well together, and Philip claims to have sold back his stock to them, or to his father-in-law, for the amount he paid for it, $26,000, and to have received therefor 104 promissory notes. The agreement of sale was a very formal instrument, signed and sealed by L. Kritzer, the father, and Philip Bernstein. It was drawn in the lawyer’s office, with all the parties present. Philip Bernstein, so says the document, sells to Louis Kritzer 252 shares of the capital stock of the Chelsea Auction Rooms & Art Galleries, Inc., for the sum of $26,000, and Louis Kritzer agrees to pay that sum by executing and delivering to Philip Bernstein 104 promissory notes, each for the sum of $250, “ which notes are to be made by Louis Kritzer and endorsed by Abraham Kritzer and Augusta Kritzer.” The notes are to be paid weekly, bear no interest, and to be non-negotiable. The contract further provides:

Fourth. It is hereby mutually understood and agreed by and between the parties to this agreement that upon the execution of this agreement, Philip Bernstein will deliver to Rachael Kritzer, said two hundred fifty two (252) shares of the capital stock of the Chelsea Auction Rooms & Art Galleries, Inc., and it is understood and agreed between the parties hereto that the said shares of stock shall be held in escrow by the said Rachael Kritzer.

“Fifth. It is hereby mutually understood and agreed between the parties hereto that prior to the delivery of the said two hundred fifty two (252) shares of stock to Rachael Kritzer, the said Philip Bernstein agrees to endorse the said shares of capital stock and transfer the same to Louis Kritzer.

“ Sixth. It is further mutually understood and agreed between the parties hereto that as each note of Two Hundred Fifty ($250) Dollars aforementioned is paid by Louis Kritzer, it is agreed between the parties, as herein-before mentioned, that two shares of the said two hundred fifty two (252) shares of the capital stock shall be released from this escrow agreement and that the said two shares are to be delivered to Louis Kritzer.”

Annexed to the said agreement was the following undertaking, signed and executed by Abraham Kritzer and his wife:

“We the undersigned, Abraham Kritzer, and Augusta Kritzer, hereby guaranty the performance by Louis Kritzer of each and every condition of a contract between Louis Kritzer and Philip Bernstein, dated the 16th day of June, 1926, and the undersigned further agree to waive all defenses which they may have as endorsers on the notes executed by Louis Kritzer in accordance with the terms of the agreement aforementioned.

“ Dated, New York, June 16, 1926.
“ AUGUSTA KRITZER
“ ABRAHAM KRITZER.”

The stock was turned over to Rachael Kritzer pursuant to this agreement, and twenty-two of the notes, aggregating $5,500, were thereafter paid. Eighty-two notes remained unpaid, forty-eight of which had matured and were unpaid at the time this action was instituted.

The action is brought against Augusta Kritzer and Abraham Kritzer on their indorsements and guaranty of performance, as above set forth, to recover the amount of the unpaid notes. Both defendants answered, setting up as a defense that it was mutually agreed between the plaintiff and the defendants that the said papers, which are the basis of the plaintiff’s alleged cause of action, should impose upon them no obligation whatever, and that the defendants were not to be liable by reason thereof.

The basis for this alleged defense was given in the testimony of Abraham Kritzer as follows: Philip Bernstein was a certified public accountant, and feared trouble in the corporation. He wanted to withdraw and have Louis Kritzer come in and take over his shares, as a dummy. “ He brought over to me the notes,” said the witness, and told me that my father signed them, and I says ‘ What do you want me to sign them for? You have got my father’s signature. What do you want me to sign them for? ’ He says ' Without your signature and your wife’s signature, the thing will not look legitimate here and the creditors would probably set the whole thing aside, and I would get in the same trouble over again. I will put down non-negotiable.’ He told me that he would never use the notes against me or bother me. It was only a question here to make it look legal.”

This evidence was admitted over objection and exception, the objection being that such evidence tended to contradict the terms of the written instrument.

The judge charged the jury as follows: “The * * * vital question for you gentlemen to answer * * * were the notes in question, these forty-eight notes, signed and given for a bona fide sale of stock, or were they simply signed and given with the understanding that the signers were not to be bound by their signatures. * * * If there was no sale and no intention that there be a sale, then of course there would be no consideration for these notes and the plaintiff could not recover.”

No exception was taken to this issue as thus left to the jury, so that the only question for this court to determine is whether in view of all the facts and the pleadings above stated, the court should have admitted the testimony of Abraham Kritzer, and whether such evidence, if believed, constituted a defense.

In the first place, the contract of sale was executed under seal by Louis Kritzer, the father. The plaintiff delivered his stock and received $5,500 in part payment of the notes. It was open to these defendants, however, to prove not only that there was no consideration for their contract, but that there was to be no contract, and that as between them and the promisee of the non-negotiable instruments, there was an understanding that they would never be held liable; in other words, that it was all a sham transaction to carry out some ulterior purpose of Philip Bernstein. How the jury, as triers of the facts, could have believed this strange story of Abraham Kritzer, may be difficult to understand. The review of the facts has passed the Appellate Division and may not be considered in this court. We can only consider the law points raised by the admission of the testimony referred to, and the sufficiency of such evidence to raise a question of fact. Higgins v. Ridgway (153 N. Y. 130) deals with the subject of the conditional delivery of a promissory note, and it was there held that it was competent for the maker to show that the note was given without consideration, and was made for an accommodation of the payee and delivered upon an express agreement that the defendant should not be held liable thereon.

In the leading case of Thomas v. Scutt (127 N. Y. 133) this court said that want of consideration or delivery upon an unperformed condition and the like, may be shown by parol, not to contradict or vary, but to destroy a written instrument. Such proof does not recognize the contract as ever existing as a valid agreement and is received from the necessity of the case to show that that which appears to be, is not and never was a contract.” Smith v. Dotterweich (200 N. Y. 299) is another instance of the application of the rule. (See, also, Title Guarantee & Trust Co. v. Pam, 232 N. Y. 441.)

A different conclusion follows where an agreement or note is recognized as such at the time of the maldng, but is to be avoided by the happening of some subsequent event. Such is the case of Jamestown Business College Assn. v. Allen (172 N. Y. 291). Where there has been a complete delivery of a note, it cannot be defeated by subsequent contingencies that may or may not arise.

The appellant, in his brief, claims that the defendants sought to vary the agreement by- showing that Louis Kritzer was to pay the notes out of the weekly salary of $250 which he received from the corporation, instead of paying them absolutely and in all events. The defense goes further than this. The guaranty, say the defendants, was without consideration; there was no actual sale and no genuine valid notes given to Philip Bernstein by his reiatives-in-law.

The jury by its verdict has decided that the story of Abraham Kritzer is true, and however incredible this may appear to us, we cannot disturb the finding. Such facts, if true, constitute a legal defense, and the evidence was admissible under the pleadings.

The judgment should, therefore, be affirmed, with costs.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O'Brien and Hubbs, JJ., concur.

Judgment affirmed.


author: Cardozo, Ch. J.

text:
    Johnson Service Company, Inc., Respondent, v. E. H. Monin, Inc., et al., Respondents, and Board of Education of the City of Lockport et al., Appellants.

      (Argued March 27, 1930;
    decided May 6, 1930.)

      A. Bruce Hopkins for Board of Education of the City of Lockport, appellant.
    The Appellate Division erred in deciding that the defendant Standard Accident Insurance Company was not Hable to the Henors for deficiencies. (Eastern Steel Co. v. Globe Indemnity Co., 185 App. Div. 695; 227 N. Y. 586; Buffalo Cement Co. v. McNaughton, 90 Hun, 74; 156 N. Y. 702; Matter of International R. Co. v. Rann, 224 N. Y. 83; Allen v. Allen, 246 N. Y. 45; Seaver v. Ransom, 224 N. Y. 233; Wilson v. Whitmore, 92 Hun, 466; 157 N. Y. 693.)

      0. Clyde Joslin for Buckeye Blower Company, appellant.
    The Hen filed by the Buckeye Blower Company was a good, vafid and subsisting Hen on the fund found due to the contractor. (Methodist Episcopal Union Church v. Pickett, 19 N. Y. 482; Eaton v. Aspinwall, 19 N. Y. 119; United States Bank v. Stearns, 15 Wend. 314; Bank of Toledo v. International Bank, 21 N. Y. 542; Buffalo & Allegany R. R. Co. v. Cary, 26 N. Y. 75; U. S. V. Co. v. Schlegel, 143 N. Y. 537; Lamming v. Galusha, 81 Hun, 247.) The Standard Accident Insurance Company is liable to the Buckeye Blower Company for the payment of its claim for materials. (Wilson v. Whitmore, 92 Hun, 466; 157 N. Y. 693; Maltby & Sons v. Wade, 131 Misc. Rep. 143; Eastern Steel Co. v. Globe Indemnity Co., 185 App. Div. 695; 227 N. Y. 586; Buffalo Cement Co. v. McNaughton, 90 Hun, 74; 156 N. Y. 702; Richard-Con v. County of Steuben, 226 N. Y. 13; Fosmire v. National surety Co., 229 N. Y. 44; Seaver v. Ransom, 224 N. Y. 233; City of New York v. Sonnborn, 113 N. Y. 423; Sity of New York v. Paoli, 202 N. Y. 18.)

      W. J. Wetherbee for plaintiff-respondent.

      Joseph Benzinger for E. H. Monin, Inc., defendant-respondent.

      Fritz Fernow for Standard Accident Insurance Company, defendant-respondent.
    The Standard Accident Insurance Company is not liable to the Buckeye Blower Company for the payment of its claim for materials. (Wilson v. Whitmore, 92 Hun, 466; 157 N. Y. 693; Fosmire v. National Surety Co., 229 N. Y. 44; Vrooman v. Turner, 69 N. Y. 280; Townsend v. Rackhan, 143 N. Y. 516; Seaver v. Ransom, 224 N. Y. 233; Rigney v. New York Central & H. R. R. R. Co., 217 N. Y. 34; Strassler v. Illinois Surety Co., 174 App. Div. 424; Lyth v. Hingston, 14 App. Div. 12; Laudani v. Vulcan Engineering Co., 70 Misc. Rep. 385; Eastern Steel Co. v. Globe Indemnity Co., 185 App. Div. 695; 227 N. Y. 586; Village of Argyle v. Plunkett, 226 N. Y. 306; Buffalo Cement Co. v. McNaughton, 90 Hun, 74; 156 N. Y. 702; 157 N. Y. 703.)

      Moniford C. Holley for Earl D. Crose et al., defendants-respondents.
   Cardozo, Ch. J.

The action is one for the foreclosure of mechanics’ liens.

E. H. Monin, Incorporated, made a contract with the Board of Education of the city of Lockport to supply the heating and ventilating apparatus for two of the city schools.

Under the authority of the Education Law (§ 875, subd. 8), the Board exacted from the contractor the security of a bond. This bond which was executed by the Monin Company as principal and by the Standard Accident Insurance Company as surety, was conditioned to the effect that the contractor would complete the work in accordance with the contract, and in addition that it would well and truly pay for all materials used and services rendered in connection therewith.

At the time of the completion of the work, a balance ' of $10,920.17 was owing to the contractor. Against this fund subcontractors had filed with the Board three notices of lien. One, filed by the plaintiff Johnson Service Company, Inc., was for $2,300; a second, filed by the defendants Grose and Leary, was for $1,763.73; and a third, in the name of the Buckeye Blower Company, was for $5,951.59, a total of $10,015.32. All three liens were upheld by the , trial court. In the Appellate Division the lien in favor of the Buckeye Blower Company was disallowed on the ground that there had been an omission in the notice to state the name of the lienor and hence a failure to comply with the requirements of the statute. The disallowance of this lien left a surplus applicable to the contract in the treasury of the Board after the payment of the valid hens and its own charges and expenses. This surplus, amounting with accrued interest to $7,602.92, the Appellate Division ordered the Board of Education to pay to E. H. Monin, Incorporated, the general contractor. The Buckeye Blower Company was given a personal judgment against the contractor for $7,434.21, the value with interest of its material and labor. It was denied any relief against the surety on the bond.

[ Our decision in Fosmire v. National Surety Co. (229 N. Y. 44) is authority for the holding that under a bond so conditioned, the surety is not liable to materialmen and laborers suing in their own names in actions at law, since the primary purpose of the bond is the protection of the State or the municipal corporation, and the protection of others is incidental and subordinate. We said that a different holding might cause the security to be exhausted by successive actions for the benefit of private claimants, leaving nothing available to State or municipal^ in the event of damage to itself. The State did not intend to make the employees of its contractors the beneficiaries of a cause of action to be enforced in hostility to its own ” (Fosmire v. National Surety Co., supra, pp. 48, 49). We were careful to point out, however, that the conclusion might be different if the State or the municipality were before the court as plaintiff, asserting a cause of action as a trustee of an express trust for the benefit of subcontractors, in which event the surplus of the recovery, after payment of its own charges and expenses, would be held to their use. What the defendant’s liability would be if the action were prosecuted by the People, we need not now determine ” (Fosmire v. National Surety Co., supra, at p. 49).

The question thus reserved is up for a decision now. In the case at hand, the materialmen and laborers are not seeking a recovery upon the bond in competition with the municipal corporation that exacted the security. The municipal corporation is itself a party to the action, and joins in the prayer that the surety be made to pay in accordance with its promise. Our judgment in Croker v. New York Trust Co. (245 N. Y. 17, 18, 20) is authority for the holding that the promisee has a standing to maintain a suit in equity for the enforcement of the promise, though the fund when collected will be held for the benefit of others. Two of the subcontractors do not need the security of the bond, for they have liens upon the balance due to the contractor, and are thus sufficiently protected. The other subcontractor, the Buckeye Blower Company, does need the security, for because of its defective notice it is without the benefit of a lien. Even so, its claim is within the condition of the bond, for it has supplied material and labor that have gone into the building. For a valuable consideration the contractor and the surety have covenanted with the municipality that payment shall be made to materialmen and laborers whether protected by a lien or not. If these are not paid, the promisee intervenes and collects for their use the payment that is due.

In thus holding the surety to the performance of its covenant, we do not leave it helpless, without means of reimbursement. What it pays to the municipality will be subject to a trust for the benefit of the Buckeye Blower Company, and indeed for the avoidance of circuity may be paid to that company directly. In return it will have the right to be subrogated in an equivalent amount to' the right of its own principal, the general contractor, to collect from the municipality the balance due under the contract (Henningsen v. United States F. & G. Co., 208 U. S. 404; Lacy v. Maryland Cas. Co., 32 Fed. Rep. [2d] 48). In the end, the materialman will have reimbursement from the surety, and the surety from the city. The loss will fall on the contractor who in equity should bear it.

Other criticisms of the judgment have been considered and are found to be untenable.

The judgment should be modified in accordance with this opinion and as modified afiirmed, with costs to the plaintiff and the defendants Crose and Leary against the Board of Education, city of Lockport, with costs to the Buckeye Blower Company against the Standard Accident Insurance Company, and without costs to other parties.

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

Judgment accordingly.


author: Ceane, J.

text:
    John J. O’Neill, as Administrator of the Estate of Helen M. O’Neill, Deceased, Appellant, v. City of Port Jervis et al., Respondents, Impleaded with Others.

      (Argued March 26, 1930;
    decided May 6, 1930.)

      Ralph E. Roberts for appellant.
    The respondents’ obstruction was not only a nuisance, but was actionably negligent. (Murphy v. Leggett, 164 N. Y. 121; Callanan v. Gilman, 107 N. Y. 360; Welsh v. Wilson, 101 N. Y. 254; Shafir v. Sieben, 233 S. W. Rep. 419.) When a person receives a license from the public authorities to interfere with a public street, he impliedly agrees to perform the act in such a manner as to save.the public from danger and the municipality from liability; and this is a duty which he cannot escape, even by turning the work over to an independent contractor. (Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Lubelsky v. Silberman, 49 Misc. Rep. 133; Scheller v. Silbermintz, 50 Misc. Rep. 175; Friedman v. City, 63 Misc. Rep. 310; Hart v. McKenna, 106 App. Div. 219; Babbage v. Powers, 130 N. Y. 281; Schiverea v. Brooklyn Ry. Co., 89 App. Div. 340; Deming v. Terminal Ry., 49 App. Div. 493; 169 N. Y. 1; City of New York v. Corn, 133 App. Div. 1; Shafir v. Sieben, 233 S. W. Rep. 419.) The obstruction was a. nuisance growing out of negligence. (McFarlane v. Niagara Falls, 247 N. Y. 340; Tullgren v. Amoskeag

      Mfg. Co., 133 Atl. Rep. 448 Hayes v. Brooklyn Hts. Ry. Co., 200 N. Y. 183.) Whether the obstruction was temporary, necessary and reasonable, was a question of fact for the jury, and the trial court erred in deciding it as matter of law. (Kurlanchik v. Sklamberg, 56 Misc. Rep. 473; Murphy v. Leggett, 164 N. Y. 121; Callanan v. Gilman, 107 N. Y. 360.) Respondents’ tortious obstruction was not only an actual cause of the death of plaintiff’s intestate, but it was the proximate or legal cause. (Ring v. Cohoes, 77 N. Y. 83; Sweet v. Perkins, 196 N. Y. 482; Fine v. Interurban Ry. Co., 45 Misc. Rep. 587; Shafir v. Sieben, 233 S. W. Rep. 419; Murphy v. Leggett, 164 N. Y. 121; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339.)

      Wm. A. Parshall for city of Port Jervis, respondent.
    The city of Port Jervis is not chargeable, with negligence in permitting such obstruction of the sidewalk and street in front of the Cohen property as existed at the time of the accident. (Adelman v. Altman, 209 Mo. App. 583; Cohen v. Mayor, 113 N. Y. 532; Wright v. Bank of Metropolis, 110 N. Y. 237; Colt v. Owens, 90 N. Y. 368; Hedges v. H. R. R. R. Co., 49 N. Y. 223.) The obstruction was not the proximate cause of the injuries sustained by plaintiff’s intestate.- (Storey v. Mayor, 29 App. Div. 316; Murphy v. Leggett, 164 N. Y. 121.)

      Murray G. Jenkins, William B. Shelton and K. Courtenay Johnston for Isaac Cohen, respondent.
    No action in negligence lies against the respondent Isaac Cohen, for he owed no duty to the plaintiff’s intestate. (Murphy v. Leggett, 164 N. Y. 121; Walsh v. Wilson, 101 N. Y. 254; Martin v. Pettit, 117 N. Y. 118; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; Robertson v. Mayor, 7 Misc. Rep. 645; Congreve v. Smith, 18 N. Y. 79; Dickinson v. Mayor, 92 N. Y. 584; McFarlane v. City of Niagara Falls, 247 N. Y. 340.) Since the obstruction complained of was the deposit of building materials under due permit, and since there was no allegation of negligent maintenance, it was not necessary to submit to the jury the questions of necessity, reasonableness and permanence. (Callanan v. Gilman, 107 N. Y. 360; Murphy v. Leggett, 164 N. Y. 121; Cohen v. Mayor, 113 N. Y. 532; Rehberg v. Mayor, 91 N. Y. 137; Kelly v. Doody, 116 N. Y. 575; Loberg v. Amherst, 87 Wis. 634; Cuilo v. New York Edison Co., 85 Misc. Rep. 6; Pettengill v. City of Yonkers, 116 N. Y. 558; Russell v. Village of Canastota, 98 N. Y. 498; McMahon v. Second Avenue R. R. Co., 75 N. Y. 231.) The question of proximate cause was one of law for the court. (Hoffman v. King, 160 N. Y. 618; Read v. Nichols, 118 N. Y. 224; Cole v. German Savings & Loan Assn., 124 Fed. Rep. 113; Beetz v. City of Brooklyn, 10 App. Div. 382; McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66.) Even if negligence on the part of the defendant Cohen could be proved, it would not be the proximate cause, or one of concurring proximate causes, of the accident. (Leeds v. New York Telephone Co., 178 N. Y. 118; Trapp v. McClellan, 68 App. Div. 362; Storey v. Mayor, 29 App. Div. 316; Cole v. German Savings & Loan Assn., 124 Fed. Rep. 113; Laidlaw v. Sage, 158 N. Y. 73; Robertson v. Mayor, 7 Misc. Rep. 645; Purcell v. Lauer, 14 App. Div. 33.) There was contributory negligence on the part of the plaintiff which must be imputed to his intestate. (Mangan v. Brooklyn R. R. Co., 38 N. Y. 455; Prendergast v. New York Central & H. R. R. R. Co., 58 N. Y. 653; Nolan v. King, 97 N. Y. 565; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Weston v. City of Troy, 139 N. Y. 281; Whalen v. Citizens’ Gas Light Co., 151 N. Y. 70.)
   Ceane, J.

Front street in the city of Port Jervis, N. Y., runs approximately north and south and is one of the main thoroughfares of the municipality. Isaac Cohen, at the times herein mentioned, was the owner of property on the east side of Front street, about 230 feet south of Sussex street. A building was being erected on this lot, and the sidewalk of Front street was dug up and barred off to pedestrians; material was also piled in the highway alongside of what had been the sidewalk, extending out halfway into the street. Traffic in Front street is very heavy. Just to the south of Cohen’s property there is a flatiron building and a fountain, which divide tyaffic. The highway at this point is much wider than to the north, so that two lines of vehicles can go each way at the flatiron building, but merge into one line each way up near Cohen’s place.

The 25th day of June, 1927, was a Saturday, and Front street was crowded. People came to do their shopping and marketing on that night. Automobiles filled the highway, proceeding along about three feet apart, and were naturally more congested at the point where Cohen’s building material occupied about half the street. A trolley track also runs through Front street.

Among those who had come out to do the Saturday night shopping was John O’Neill, his wife, Theresa, with their little boy, nine years old, and the child Helen Marie, about two years of age. They were proceeding about seven o’clock in the evening along the easterly side of Front street, going south, until they came to the barriers erected by Cohen. Here they were halted, and with the others, were turned from the sidewalk into the street amidst the automobile traffic. They could have done one of three things: walked out in the street around the building material, or crossed the street, whenever traffic permitted, or turned back, and gone somewhere else. This little family did what other people in the street were doing; they started to walk out in Front street and around the building material. The father was going first, holding the little girl by his right hand; she was, therefore, on the outside. As they were proceeding in this way, they met other pedestrians coming in the opposite direction, so that in the middle of the street, along side of the building material, with a jam of automobiles about them, O’Neill, with his little girl, had to make way, or give room for those in the same situation who were going up the street, while he was going down. A passing automobile struck and killed the child. On these facts, does the law afford any relief, or give any remedy?

The plaintiff, as administrator of Helen Marie O’Neill, has sued the city of Port Jervis, Isaac Cohen and George D. Sinley. The latter was the operator of the automobile. The case was dismissed as to him, with the consent of the plaintiff, as there was no evidence of his negligence. The cause of action against the city and Cohen, if any, rests upon the illegal usurpation of the sidewalk for private purposes, and the shifting of pedestrians into danger.

.First, was the use made of the sidewalk of Front street unlawful?

The primary purpose of streets is use by the public for travel and transportation, and the general rule is that any obstruction of a street or encroachment thereon which interferes • with such use is a public nuisance. (Callanan v. Gilman, 107 N. Y. 360.) An adjoining property owner may, however, temporarily use a portion of the street or highway for taking goods or merchandise in or out of his premises. (Welsh v. Wilson, 101 N. Y. 254.) Likewise, a person engaged in erecting a building may be obliged to use the sidewalk or street temporarily for the piling or storing of .material, such as lumber, brick and sand, or for the unloading of articles upon the sidewalk, or while constructing foundations or other parts of the building. All these uses, however, must be reasonable, temporary and such as is usual and customary in connection with the particular business or construction. (Murphy v. Leggett, 164 N. Y. 121.) The municipalities generally provide rules or regulations controlling the manner and times in which these interruptions may be made, but beyond the regulation of these necessary and temporary uses, no municipality has the power to authorize the appropriation of a sidewalk for private purposes.

The city of Port Jervis had adopted the following ordinance on this subject (§ 4): No person shall place any material for building or any other purpose upon any public street within the city without permission in writing from the mayor or common council. Such permission shall not be for a longer period than three months; nor shall it authorize the obstruction of more than one-third of the sidewalk nor more than one-half of the carriage way, nor the placing of materials nearer than three feet to any street railroad track.”

This ordinance apparently was modified in behalf of Isaac Cohen, on the 23d day of May, 1927, to permit him to construct a brick and concrete building on his lot at No. 42 Front street, and to use about eight feet of the street in front of the lot for the purpose of storing building material and to close off the sidewalk at intervals during the time of the erection of the building.

When the owner commenced construction, building material was piled in the street to the extent of eight feet, pursuant to this permission, and remained there until the time of the above stated accident. With this act no fault can be found, as it was within those reasonable uses permitted by the law.

As to the sidewalk, however, we have a different situation. There was no necessity for storing material upon the sidewalk to the exclusion of all use by pedestrians for any great length of time.' While the foundations were being dug, the material carried in and out of the lot or building, and while the tanks were being built under the sidewalk, temporary obstruction was of course necessary. The tanks were built in two days. Testimony given upon the trial shows, that the work of excavation started about May 10, 1927, and that shortly thereafter the sidewalk was completely blocked off and dug up until the time of the accident, June 25, 1927. No provision was made for travelers on foot. At night, Sundays and holidays the way remained blocked and used for machines and other building implements. This was not the closing off of the sidewalk at intervals, as permitted by the amended ordinance, or at least, it would be a question for a jury to determine whether on all the facts thus appearing, such continued usurpation of the sidewalk for building purposes to the exclusion of all foot passengers Was reasonable, necessary and temporary. The work of erecting this comparatively small building apparently did not require the closing of the sidewalk for almost thirty days. The jury might find that the work could have been carried on the customary way by permitting people to walk on a path or boards or some construction, when the work was not going on requiring digging under the sidewalk or the carrying in and out of materials. We are all familiar with such temporary uses.

Rights are never absolute and independent of those of others. The right to shut off a sidewalk from use by the public must be exercised in recognition of the fundamental purpose of sidewalks, and the rights of pedestrians. These latter must put up with the inconvenience of getting by the best way they can, when necessity and reasonable use so demand, but the lot 'owner's right to thus bar the public ends with the reasonable necessity and the requirements of the occasion. Allowing a very liberal interpretation to the words, at intervals,” and realizing that the work of builders and contractors as carried on alongside of highways cannot be too narrowly restricted, it may be that this work did not call for the closing of the sidewalk for thirty days or thereabouts. In the usual and customary way of doing such work, would not the builder have provided some sort of footpath at times when work had ceased or material was not being carried in and out? These are questions which a jury should answer as questions of fact. Whatever the situation, the city was fully acquainted with it, and if Isaac Cohen unreasonably and unlawfully used the sidewalk for the storing of materials to the exclusion of the public, the city had knowledge of it, and was required to act. A question of fact arose as to whether the city and Cohen were negligent in maintaining and in failing to remove unlawful and illegal obstructions.

Assuming that the barriers were illegal, we then come to the next question, as to the cause of death. Was Helen Marie O’Neill killed because and in consequence of the illegal obstruction of the sidewalk? Where were John O’Neill and his little girl to go when faced with this obstruction to their passage? Out into the street, jammed with traffic, through which automobiles were passing at its narrowest point. In front of No. 42 Front street the roadway had narrowed like the neck of a bottle. Four lines of vehicle traffic, a block away, had converged into two lines, one north and one south, and the street was still further narrowed by the building material extending out eight feet. This Cohen and the city officials knew. By this point was passing on Saturday night, when no work was, being done on the building, the heaviest traffic. That the street might be very dangerous for pedestrians was apparent to any one who would pause to reflect. O’Neill and his family had the right to go by; the street was not closed; their rights were equal to those of any others; they were not called upon to desist from their purpose and return home. Others were going and coming around the pile of dirt, and the O’Neills followed. This was the way prepared by the city and by Cohen; this was the pathway substituted for the one torn up; this was the direction that pedestrians were directed to take. If Cohen had stood upon the sidewalk, or the city personified had been there and forced O’Neill or his little girl into the wheels of traffic, no doubt would exist in the minds of any one as to liability for consequences. Is the conclusion any different because necessity, and not force, is the moving cause? The city and Cohen created the necessity which led to danger. The risk was the direct result of the obstructions on the sidewalk. The accident would not have happened but for, the unlawful obstructions.

Suppose the city and Cohen had constructed a new pathway or sidewalk alongside an unguarded and dangerous hole into which pedestrians were apt to fall, and a person following this path without fault fell into the trap. Would not the injury received be the direct consequence of the danger created? The cause — legal cause •— would be the construction of a dangerous way. The result would be no different if a stranger, instead of the city or Cohen, had dug the hole. The danger in law to pedestrians would not be the hole, but the unguarded and unprotected pathway. Such is this case. The city and Cohen, we must assume for this point, shut off the sidewalk and established a footpath around the pile of dirt in the street, rendered dangerous by heavy automobile traffic. The danger is created not by the automobilists in the street, where of necessity they must be, but by the establishment of an unguarded footpath in close proximity. People frequently, in our large cities, must stand in the street alongside car tracks, awaiting for cars, and are protected by barriers, signs or warnings directing traffic. No such protection was furnished the O’Neill family. They were guided into, and not out of, danger. The collision between the little girl and a passing automobile was the ordinary and natural result of the unlawful obstruction on the sidewalk, compelling passersby to go out into the middle of the street around the projecting pile of dirt. At least, it would be a question for the jury to determine whether a reasonably prudent man would have anticipated the danger and the risk. To constitute negligence establishing liability in this case there must have been not only a violation of duty by Cohen and the city toward the public, the erection and maintenance of an unlawful obstruction, but the injury-must have been the natural consequence of the alleged negligent act. (Knox v. Eden Musee Co., 148 N. Y. 441, 462.) Whether it was so or not was a question for the jury.

Legal or proximate cause is always.dependent upon the facts of a particular case, and it is for this reason that the words are beyond definition or conclusive explanation. Very often it is confused with the preliminary question whether there is any negligence at all. The difficulty of applying general rules drawn from previous incidents to a new set of • circumstances is illustrated in Palsgraf v. Long Island R. R. Co. (248 N. Y. 339). The general underlying principle of that case is that the negligence does not exist unless there is a reasonable likelihood of danger as a consequence of the act complained of. It found expression in the prevailing opinion in these words: “ The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” The possibility of an accident must be clear to the ordinarily prudent eye. This court further said in that case: “ The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury.”

We are, therefore, of the opinion that in this case the jury must determine whether the risk of being hurt in passing traffic was reasonably to be anticipated by those who shut off the sidewalk, and turned passersby into the street. Would the danger of such an act be apparent to the ordinarily prudent man? If so, there would be negligen.ee. This is the measure by which we seek to determine the question of liability in tort cases through the means of a judge or jury. - "

To attempt to phrase a different rule for liability for negligence, one which will be more inclusive or exclusive, fitting exactly every circumstance which may arise, has proved an impossible task to those who have given intensive study and application to the subject of torts. (See the discussion and differences of opinion arising in such articles as Legal Cause in Actions of Tort,” 25 Harvard Law Review, 103, 228, 310; Legal Cause,” 72 Univ. of Pa. Law Review, 211, 343; “ Proximate Consequences in the Law of Torts,” 28 Harvard Law Review, 10, Proximate Cause,” 39 Harvard Law Rev. 149, and a recent review of the Palsgraf case in Yale Law Journal, February, 1930, p. 449, The Unforeseeable Consequences of a Negligent Act.”)

If we turn from these legal and metaphysical discussions to the reasoning of the ordinary citizen, in behalf of whom all our laws are made, we find in the testimony of John J. O’Neill, the plaintiff, whom we may consider a fair representative, this mental reaction, as expressed to the Mayor of Port Jervis: I told him if it wasn’t on account of the damned blocked sidewalk, that girl would have been alive.”

A similar case to this arose in Missouri. (Shafir v. Sieben, 233 S. W. Rep. 419, May 24, 1921.) A pedestrian was unlawfully excluded from the use of the sidewalk by reason of obstructions placed on it by a building contractor, and compelled to go into the street, where he was struck by an automobile. The Supreme Court of Missouri decided that he was deprived of his legal rights and entitled to damages. The rule applied was stated in the following language: “ The liability of a person charged with negligence does not depend on the question whether, with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of; but he may be held hable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his. act or omission.”

On the question of negligence this is the same thing as saying that a reasonably prudent man will anticipate natural and probable consequences. An idea may be expressed in many different ways, and many of our differences arise out of a choice of expression. What are the natural and probable consequences is always open to question.

The city, in the Shafir case, was also held to be negli'gent in permitting an unreasonable and unnecessary obstruction of the street to be maintained in violation of law.

We, therefore, decide that the dismissal of this cause of action against Isaac Cohen and the city of Port Jervis was improper, and that the questions involved must be submitted to a jury.

First. Was the obstruction on the sidewalk of Front street unreasonable and unnecessary, in view of all the circumstances, and in violation of the ordinance; was the city negligent in not removing it? Second. Was the death of Helen Marie O’Neill the natural consequence of this obstruction? A third question must also be submitted dealing with the contributory negligence of the father. He could not blindly take bis child into danger. His negligence, if any, would be imputed to the child. He, too, was bound to exercise reasonable care under the circumstances and conditions as they existed at the time. (McFarlane v. City of Niagara Falls, 247 N. Y. 340.) Section 131 of the Decedent Estate Law (Cons. Laws, ch. 13) provides that in any action to recover damages for causing death, the contributory negligence of the person killed shall be a defense to be pleaded and proven by the defendant.

That the barricade across the sidewalk of Front street may also have constituted a public nuisance, does not bar the plaintiff from maintaining a cause of action for negligently failing to remove the same and to restore a sidewalk or footpath. (See the McFarlane case, just cited.) The case was tried upon that theory, and not on that of nuisance.

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

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

Judgments reversed, etc.


author: O’Brien, J.

text:
    Emma O. Bennett, Respondent, v. John Cupina et al., as the Board of Trustees of School District No. 4 of the Town of Dickinson, Appellants.
    (Argued March 28,1930;
    decided May 6,1930.)

      George H. Zator for appellants.
    Defendant’s motion for a nonsuit made at the end of plaintiff’s case and repeated at the end of the evidence should have been granted. (Goodale v. Tuttle, 29 N. Y. 459; Vanderwiele v. Taylor, 65 N. Y. 341; Barkley v. Wilcox, 86 N. Y. 140; Gannon v. Hagadorn, 10 Allen, 106; Angell on Watercourses, 108; Wagner v. L. I. R. R. Co., 5 T. & C. 163; Dickinson v. City of Worcester, 7 Allen, 19; Sweet v. Cutts, 50 N. H. 439; Branstron v. Tayler, 11 Ex. 369; Howard v. City of Buffalo, 211 N. Y. 241; Peck v. Goodberlett, 109 N. Y. 60; Kilts v. State, 194 N. Y. Supp. 107; Ervin v. Erie R. R. Co., 98 App. Div. 402; 186 N. Y. 550; Gowd v. Booth, 66 N. Y. 62; Sabetto v. N. Y. C. & H. R. R. R. Co., 112 N. Y. Supp. 118; Bennett v. Long Island R. R. Co., 181 N. Y. 431; Leffman v. Long Island R. R. Co., 105 N. Y. Supp. 187; 197 N. Y. 513.) Any damage resulting to plaintiff’s lands from the flow of surface water is damnum absque injuria. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Moyer v. N. Y. C. & H. R. R. R. Co., 88 N. Y. 351; Harvey v. N. P. Ry. Co., 116 Pac. Rep. 464; Thompson v. C., M. & S. P. R. R. Co., 119 S. W. Rep. 509; N. J. I. & I. R. Co. v. Tutt, 80 N. E. Rep. 420; Egner v. N. Y. & R. B. R. R. Co., 3 App. Div. 157; Bennett v. L. I. R. R. Co., 89 App. Div. 379; Chidsey v. City of Pascagoula, 59 So. Rep. 879; Walther v. Cape Girardeau, 166 Mo. App. 467; C., C., C. & St. L. Ry. Co. v. Smith, 97 N. E. Rep. 164; Pittsburg, etc., Ry. Co. v. Atkinson, 97 N. E. Rep. 353; Simon v. Nance, 142 S. W. Rep. 661.)

      Ray T. Hackett and Ralph L. Emmons for respondent.
    Defendants were without right to so alter and maintain their premises as to collect surface waters from their own and other premises into an artificial channel and cast the same on the premises of plaintiff. (Barkley v. Wilcox, 86 N. Y. 140; Vanderwiele v. Taylor, 65 N. Y. 341; Gould v. Booth, 66 N. Y. 62; Mann v. Retsof Mining Co., 49 App. Div. 454; Sabetto v. New York Central R. R. Co., 127 App. Div. 832; Cooney v. Northern Central R. Co.,
      180 App. Div. 675; 230 N. Y. 550; Bowman v. Town of Chenango, 227 N. Y. 459; McGetrick v. Shoecrafi, 198 App. Div. 278; Hay v. Cohoes Co., 2 N. Y. 159; Byrnes v. City of Cohoes, 67 N. Y. 204; Jutte v. Hughes, 67 N. Y. 267; Noonan v. City of Albany, 79 N. Y. 470; Mairs v. Manhattan R. E. Assn., 89 N. Y. 498; Vernum v. Wheeler, 35 Hun, 53.) The relief granted to plaintiff was proper. (Barnes v. Midland R. R. Terminal Co., 218 N. Y. 91; Francis v. Schoellkopf, 53 N. Y. 152; Jutte v. Hughes, 67 N. Y. 267; Barrick v. Schifferdecker, 123 N. Y. 52; Hartshorn v. Chaddock, 135 N. Y. 116; Pritchard v. Edison Elec. Illum. Co., 179 N. Y. 364; Kilbourne v. Supervisors, 137 N. Y. 170; Gerow v. Village of Liberty, 106 App. Div. 357; Ackerman v. True, 175 N. Y. 353; Wilson, v. City of Troy, 135 N. Y. 96.)
   O’Brien, J.

The lands of plaintiff and defendants adjoin. Originally, plaintiff’s ground was the higher and the natural flow of surface water settled on defendants’ property. Later, the predecessors of defendants, as trustees of a school district, erected a schoolhouse, filled in and graded their grounds and reconstructed and elevated a driveway on their own premises abutting plaintiff’s land. As a result of these improvements, the grade has been reversed and the surface water now flows down the slope of the school yard into the driveway, thence on to plaintiff’s property and has damaged it. Plaintiff has recovered a money judgment and has also obtained injunctive relief requiring the abatement of a nuisance as assumed and declared.

No drain or ditch has been constructed by defendants. The driveway before reconstruction cannot be held to constitute the bed of a definite watercourse and, consequently, its elevation is not a diversion or a change of a watercourse. Even without its presence, defendants’ land, as graded, would retain its present elevation. The school trustees at their pleasure could have eliminated the driveway and allowed the entire field to remain unsodded or could have covered it with cinders or gravel as a playground. Although the present driveway no doubt forms an outlet for water from the graded lawn, it is not an artificial conduit and may not be deemed objectionable on any principle of equity. Its reconstruction and continued existence is entirely within the exercise of a recognized right. In good faith and for the purpose of improving his property a lower proprietor may fill and grade Iris lands. When, without the creation of a defined watercourse, or the alteration of an existing one, the result is s,o to change the natural contour of the land as to cause surface waters to collect in a highway and overflow a neighbor’s property, the act is no less lawful. Since this water is not cast by drains or ditches upon adjoining premises defendants may get rid of it any way they can. They have full dominion over their own land, above as well as below the surface. The resulting damage gives no right of action. Damnum absque injuria. (Goodale v. Tuttle, 29 N. Y. 459, 467; Barkley v. Wilcox, 86 N. Y. 140, 147; Howard v. City of Buffalo, 211 N. Y. 241, 258.)

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

Cardozo, Ch. J., Pound, Cbane, Lehman, Kellogg and Hubbs, JJ., concur.

Judgments reversed, etc.