author: Crane, J. Lehman, J. (dissenting).

text:
    In the Matter of the Claim of Francis M. Smith, Appellant, against The Aerovane Utilities Corporation et al., Respondents. The State Industrial Board, Appellant.
    (Argued March 14, 1932;
    decided April 26, 1932.)

      Henry J. Crawford for Francis M. Smith, appellant.
    The State Industrial Board had jurisdiction of the claim. (Matter of Cameron v. Ellis Construction Co., 252 N. Y. 394.)

      Gerard J. Hernon for respondents.
    The Industrial Board was without jurisdiction because the accident happened in the State of Pennsylvania in connection with employment in Pennsylvania not arising out of employment in the State of New York. (Matter of Cameron v. Ellis Construction Co., 252 N. Y. 394; Matter of Copeland v. Foundation Co., 256 N. Y. 442; Matter of Amaxis v. Vassilaros, Inc., 258 N. Y. 13; Matter of Baum v. N. Y. Air Terminal, Inc., 230 App. Div. 531; Matter of Arnink v. Caflisch, 232 App. Div. 713; Matter of Kolfatis v. Commercial Painting Co., 233 App. Div. 882; Matter of Thompson v. Foundation Co., 188 App. Div. 506.) The accident did not arise out of or in the course of claimant's employment. (Parisi v. Whittemore, Rauber & Vicinus, 230 App. Div. 140; Schultz v. Beaver Products, Inc., 250 N. Y. 565.)
   Crane, J.

The Aerovane Utilities Corporation is a domestic corporation with office and principal place of business located at 292 Madison avenue in the city of New York. It is engaged in the advertising business, erecting advertising signs on poles throughout the country. Its business is operated and conducted from New York city. Francis M. Smith, the claimant, resided at 293 Third street, Albany, N. Y., and had worked as a laborer for the Aerovane Utilities Corporation, putting up advertising signs at Gloversville, Johnstown, and around Albany, Troy and Schenectady. For a short period he had worked for a contractor named Dollard, but had come back to his old employer, the Aerovane Utilities Corporation, and had worked for it five days or more before he was sent by its foreman to assist in putting up advertising signs in the vicinity of Scranton, Penn. The foreman, Badertcher, called for the claimant in his automobile at his club in Albany and took him out to Scranton where he was at work for about a week and a half when he was injured in the accident for which he seeks compensation. While in Scranton the few employees doing the work lived at a hotel and motored out to the various places where the advertising signs were being placed. Badertcher, the foreman, testified that his company was engaged in the business of constructing advertising signs throughout the country; that when Smith went to work for him or the Aerovane Company, they were working at Gloversville and Johnstown, New York State.

Q. How long had Mr. Smith worked for you under the Aerovane and before you went to Pennsylvania? A. About two weeks. * * * I told him I wanted him to go to Pennsylvania with me, when I got ready I would take him with me. He [Mr. Burns, the president of the company] told me to take the men I had if they would go, Mr. Smith went with another fellow I also hired in New York State. We were told it would take about four weeks.
Q. This work at Scranton and around in the different directions of the State was putting up these standards? A. Yes. ■
“ Q. If he [Smith] had not been injured would he have been employed in New York State upon his return? A. Yes, sir.
“ Q. So your work down in Pennsylvania was of temporary nature? A. Yes.
Q. The same class of work that he was doing here? A. Yes.
“ Q. That was incidental to other business here in New York? A. Yes.
“ Q. From time to time did you have occasion to go to other states-to do some of this work? A. Yes.
“ Q. Stayed a short time and then came back to New York State? A. Yes.
Q. Went from New York State temporarily to the other states to put this equipment up and returned to New York State? A. Yes.”

This case comes squarely within the case of Matter of Post v. Burger & Gohlke (216 N. Y. 544, 554). The defendant, in that case a corporation, was engaged in sheet metal work in Brooklyn, N. Y., and employed William Post, a resident of Brooklyn, as a sheet metal worker. The contract of employment was made in the State of New York. On September 1,1914, he was sent by his employer to perform certain sheet metal work on a grain elevator in Jersey City, State of New Jersey, and while engaged in his work on that day, a sheet metal slipped from his hands and he received an injury for which he was compensated by an award, under the Workmen’s Compensation Law (Cons. Laws, ch. 67). This court affirmed the award, stating in the opinion: The language of the statute if construed literally, and we see no reason why it should not be, expressly includes the employee in this case, as he was engaged in his employment in New Jersey, away from the plant of his employer, and under the employer’s express direction.” The decision was unanimous, including the present Chief Judge of this court, and former Chief Judges Willard Bartlett, His cock and Cardozo. Matter of Post v. Burger & Gohlke has been cited and followed with approval in Matter of Spratt v. Sweeney & Gray Co. (216 N. Y. 763); Matter of Valentine v. Smith, Angevine & Co. (216 N. Y. 763); Matter of Klein v. Stoller & Cook Co. (220 N. Y. 670); Matter of Fitzpatrick v. Blackall & Baldwin Co. (220 N. Y. 671); Matter of Smith v. Heine Boiler Co. (224 N. Y. 9).

The facts in Matter of Klein v. Stoller & Cook Co. (supra) were these: The defendant was engaged in manufacturing ornamental iron work with its plant and place of business at 550 Trinity avenue in the Bronx, New York city. The claimant, Samuel Klein, was an ornamental iron worker residing at 871 East One Hundred and Seventy-ninth street, New York city. He was engaged, at five dollars a day and his carfare to and from New York, to construct ornamental iron work on a hotel building in Newark, N. J., and while there was injured in the course of his employment. This court sustained an award made to him under our Compensation Law.

In Matter of Smith v. Heine Boiler Co. (supra, p. 11) we said, through Cardozo, J.: “A duty is imposed by law on employers conducting a hazardous employment in New York to insure their workmen against injury, and the insurance covers injuries incidental to that employment though suffered in another state.”

When the State Industrial Board in this claim of Francis M. Smith found that his case came within the provisions of our Workmen’s Compensation Law, they were sustained by the evidence and also by the authorities here cited. No distinction can be drawn in the application of the principle between this case and Matter of Post v. Burger & Gohlke, and Matter of Klein v. Stoller & Cook Co. (supra).

The respondent relies upon Matter of Cameron v. Ellis Construction Co. (252 N. Y. 394, 397), which, however, is not a departure from the rule laid down in the Matter of Post v. Burger & Gohlke case; in fact, the opinion in the Cameron case expressly cites and approves of our former decisions in Matter of Post v. Burger & Gohlke and Matter of Klein v. Stoller & Cook Co., and says: When the course of employment requires the workman to perform work beyond the borders of the State, a close question may at times be presented as to whether the employment itself is located here. Determination of that question may at times depend upon the relative weight to be given under all the circumstances to opposing considerations. The facts in each case, rather than juristic concepts, will govern such determination. Occasional transitory work beyond the State may reasonably be said to be work performed in the course of employment here; employment confined to work at a fixed place in another State is not employment within the State, for this State is concerned only remotely, if at all, with the conditions of such employment.”

There was no fixed place ” of employment within the State of Pennsylvania within the meaning of this word as used in the Cameron case, for it definitely appears from the testimony that Smith’s employment was temporary, transitory, and incidental to his New York work.

In the Cameron case the claimant was a resident of Canada, employed by a Massachusetts corporation to operate an engine at a sand pit located in Canada, from which sand and gravel were taken for use of the employer in the construction of a road in the State of New York, and we held that the claimant did not come within the provisions of our Workmen’s Compensation Law. The only connection the claimant had with New York State in that case was the fact that a foreign corporation was temporarily doing work here. This is entirely different from a domestic corporation located and employing men here doing work temporarily outside the State. Cameron and his work were fixed in Canada. Smith’s employment was here in New York State, the nature of his work requiring him to go temporarily into other States under the direction and control of employers located here.

The order of the Appellate Division should be reversed and the award of the State Industrial Board confirmed, with costs in this court and in the Appellate Division to the claimant-appellant.

Lehman, J. (dissenting).

Accidental injuries which arise out of and in the course of work outside of the territorial limits of the State of New York are not covered by the Workmen’s Compensation Law, unless the work outside of the State is an incident of employment within the State. (Matter of Cameron v. Ellis Construction Co., 252 N. Y. 394.) The work outside of the State may be incidental to a business conducted by the employer within the State. That is true of almost all work done for an employer whose principal place of business is within this State. That is not the test, even where the contract of employment is made here. The test is whether the work outside of the State is an incident of the employment of the workman and not merely an incident of the business of the employer.

Here the employer is a New York corporation engaged in business within the State. In the course of and as an incident of its business it constructs aerovanes at various points. Its foreman is employed generally to work wherever the employer is constructing an aerovane and where the foreman may be sent. Work done by him at any point within or without the State is an incident of his general employment. Not so, where a workman is employed to do a specific piece of work in a specific locality. The evidence is sufficient to show that the claimant who was injured in Pennsylvania was employed on work near Albany by the same employer and under the same foreman for two weeks before he went to Pennsylvania. Perhaps he had been employed from time to time in similar work elsewhere in the same general neighborhood. At the time of his Albany employment he was the driver of a team of horses owned by one Dollard. The employer hired the team from Dollard for the work it was doing near Albany. It employed the driver so long as it used the team. The worker’s employment ceased each time when the particular work for which he was employed stopped. If the employer chose to use the claimant elsewhere, it might again hire him, but work done upon each piece of construction work was under an employment confined to that work. When the Albany work was finished, the foreman asked the claimant whether he wished to work on another job in Scranton. Refusal of the offer would not have resulted in a discharge of the claimant from existing employment, for that would in any event come to an end before the new work began. Acceptance of the offer resulted in a new employment for work confined to Pennsylvania. Work done outside of the State can never be an incident of an employment within the State, unless the employment within the State has larger scope than particular work outside of the State. Absence outside of the State, though temporary or transitory, must be in the course of general employment here. Here, the undisputed testimony shows that the claimant’s presence in Pennsylvania was not in (the course of a general employment here, but was in me course of an employment which, though initiated here, involved no work or duty by the workman which could begin before the work in Pennsylvania was started, or which could continue after that work was finished or which could require the claimant’s presence at any point except where that work was conducted. Thus the claimant’s work was not an incident of any employment other than an employment to work at Scranton, Penn., and no case cited in the prevailing opinion applies.

The order of the Appellate Division should be affirmed, with costs.

Pound, Ch. J., O’Brien and Hubbs, JJ., concur with Crane, J.; Lehman, J., dissents in opinion; Kellogg, J., not sitting.

Ordered accordingly.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    In the Matter of the Application of James A. Tillman, Respondent. Borris M. Komar, Appellant.

      (Argued March 14, 1932;
    decided April 26, 1932.)

      Borris M. Komar for appellant.
    Respondent by exercising his right of substitution, cancelled the standard of compensation provided by appellant’s retainer; thereupon respondent became Hable to appellant for services rendered estimated on a quantum meruit basis. (Matter of Krooks, 257 N. Y. 329; Matter of City of New York, 219 N. Y. 192; Martin v. Camp, 219 N. Y. 170.) Respondent by exercising his right of substitution, canceled appellant’s retainer in its entirety; thereupon, the duty arose on his part to compensate forthwith appellant for services rendered until his substitution. (Bowman v. Tallman, 2 Rob. 385; Matter of Snyder, 190 N. Y. 66; Leavitt v. Dodge, 26 N. Y. Supp. 309; Western Union Telegraph Co. v. Semmes, 73 Md. 9; Yuells v. Hyman, 84 N. Y. Supp. 460; Grymes v. Sanders, 93 U. S. 51; Hayward v. Wemple, 152 App. Div. 195; 206 N. Y. 692; McNaught v. Equitable Life Assur. Soc., 136 App. Div. 774; Nichols v. Scott, 12 Vt. 47; Matter of Krooks, 257 N. Y. 329; Johnson v. Ravitch, 113 App. Div. 810; Adams v. Fort Plain Bank, 36 N. Y. 255; New York Phonograph Co. v. Edison Phonograph Co., 150 Fed. Rep. 233; Such v. Bank of State of New York, 120 Fed. Rep. 202; Phillips v. Hodgson, 227 App. Div. 754.)

      J. Sidney Bernstein for respondent.
    The rule of quantum meruit cannot fairly and reasonably be applied to appellant’s compensation as attorney. (Neu v. Brooklyn Heights R. R. Co., 113 App. Div. 446; Martin v. Camp, 219 N. Y. 170; Andrews v. Haas, 160 App. Div. 421; 214 N. Y. 255; Matter of Krooks, 257 N. Y. 329.) Appellant’s lien was properly fixed on a basis contingent on recovery. (Martin v. Camp, 161 App. Div. 610; Roake v. Palmer, 119 App. Div. 64; Friedman v. Mindlin, 91 Misc. Rep. 473.)
   O’Brien, J.

By written agreement James A. Tillman retained Borris M. Komar as his attorney to prosecute claims against several foreign insurance corporations. The attorney’s compensation was to be three per cent of the proceeds but in the event that the litigation should result in no proceeds, the attorney was to receive nothing. After the client’s right to recover had been established and the litigation was terminated except for computation by a referee of the amounts due, serious differences arose between the attorney and the client. On petition by the client, the courts below have ordered a substitution of attorneys on condition that the client file a bond in a specified amount to pay his former attorney three per cent of such recovery as might be had and have fixed the amount of his Hen at three per cent of any proceeds.

The cHent is entitled to cancel his contract of retainer but such an agreement cannot be partiaHy abrogated. Either it wholly stands or totally falls. After cancellation, its terms no longer serve to establish the sole standard for the attorney’s compensation. Together with other elements they may, however, be taken into consideration as a guide for ascertaining quantum meruit. (Matter of Krooks, 257 N. Y. 329.) The value of one attorney’s services is not measured by the result attained by another. This one did not contract for his contingent compensation on the hypothesis of success or failure by some other member of the bar. A successor may be able to obtain far heavier judgments than the efforts of the original attorney could secure, or, on the other hand, inferior equipment of a different lawyer might render futile an attempt to prove damage to the client. In making their agreement, the parties may be deemed to have estimated this lawyer’s pecuniary merit according to his own character, temperament, energy, zeal, education, knowledge and experience which are the important factors contributing to his professional status and constituting in a large degree, when viewed in relation to the volume of work performed and the result accomplished, a fair standard for gauging the value of services as prudent counsel and skillful advocate. The amount of appellant’s lien must, therefore, be fixed not alone upon the basis of a rescinded contingent contract but also upon a foundation built of the volume and quality of the professional services actually and necessarily performed. (People ex rel. Johnson v. Bd. of Supervisors, 45 N. Y. 196, 202; Starin v. Mayor, 106 N. Y. 82; Randall v. Packard, 142 N. Y. 47.)

On the termination of the contract of retainer a cause of action for the reasonable value of his services immediately accrued to the attorney. (Adams v. Fort Plain Bank, 36 N. Y. 255, 260.) Since he is entitled at the present time to enforce his claim by action, he need not, in this proceeding to fix the amount of his lien, be compelled to await the outcome of the litigation from which he has been displaced.

The order of the Appellate Division and that of the Special Term should be reversed, with costs in all courts, and the matter remitted to the Special Term with directions to fix appellant’s lien on the basis of quantum meruit.

Pound, Ch. J., Crane, Lehman and Hubbs, JJ., concur; Kellogg, J., not sitting.

Ordered accordingly.


author: Lehman, J.

text:
    In the Matter of the Claim of Catherine Connelly against Samaritan Hospital et al., Respondents. The State Industrial Board, Appellant.
    (Argued March 14, 1932;
    decided April 26, 1932.)

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin of counsel), for appellant.
    The injuries for which the award was made arose out of and in the course of claimant’s employment. (Matter of Mausert v. Albany Builders Supply Co., 250 N. Y. 21; Matter of Barath v. Arnold Paint Co., 238 N. Y. 625; Matter of Hansen v. Turner Const. Co., 224 N. Y. 331; Matter of Kehrmann v. Lowe Corp., 228 App. Div. 741; Matter of Velthaus v. Loewer’s Gambrinus Brewery Co., 215 App. Div. 856; Matter of Seubert v. Sidenberg Estate, 216 App. Div. 776; Matter of Santacroce v. Sag Harbor Brick Works, 182 App. Div. 442.)

      H. F. Dimond and Sydney Weitzer for respondents.
    The injuries for which the award was made did not arise out of and in the course of claimant’s employment. (Matter of Daly v. Bates & Roberts, 224 N. Y. 126; Matter of Heitz v. Ruppert, 218 N. Y. 148; Matter of McCarter v. LaRoch, 240 N. Y. 282; Matter of Hansen v. Turner Const., Co., 224 N. Y. 331; Matter of Andrews v. L. & S. Amusement Corp., 253 N. Y. 97; Matter of Helfrick v. Dahlstrom Metallic D. Co., 256 N. Y. 199; Matter of Craciola v. Lewis, 233 App. Div. 437; Matter of Chaloux v. Royal Knitting Co., 231 App. Div. 774.)
   Lehman, J.

The claimant, while working in a laundry, fell and in falling struck a table which was part of the equipment of the laundry. She sustained injuries to her teeth, roof of the mouth and chest which disabled her for some weeks. An award in her favor was reversed by the Appellate Division.

The injuries occurred in the course of the claimant’s employment. The fall was, we must assume on this record, due to a cardiac condition. The problem presented is whether the injuries suffered are accidental injuries ” which arose not only “ in the course ” of the employment, but also out of ” the employment. An injury can arise “ out of ” an employment only when it is related to the employment. The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connnected with the work.” (Matter of Heitz v. Ruppert, 218 N. Y. 148, 152, per Pound, J.)

In most cases, accidental injuries received in the course ” of an employment arise from risks related to the employment. Not always. A purely fortuitous coincidence of time and place is not enough. There must be causal relation. An accidental injury is, from its nature, the unintended result of a combination of circumstances. Chance may dictate the coincidence in time or space of conditions which in combination produce catastrophe, but of course the result of the particular combination of conditions is dictated by the laws of nature, not of chance. Where conditions of the employment, including the location of the place of work, constitute a factor which in combination with other conditions produces accidental injury, the risk of such an injury is incident to the employment. That is true, though risk of similar injury is no greater in that employment than otherwise. Thus a fall may be due to a misstep in the course of the employment. All men are subject, dining their waking hours, to the risk of a fall through a misstep or other mischance, alike when at home or at work. A clerk in a counting-house is no more subject to such a mischance than the public in general. None the less, when a clerk sustains injuries from a fall, through mischance, while working in a counting-house, the employment is one of the factors which produces the fortuitous combination of circumstances which resulted in the accidental injury. So we held in Matter of Pasternack v. Federation of Jewish Charities (240 N. Y. 621). We have applied the same principle in a host of other cases. The Workmen’s Compensation Law (Cons. Laws, ch. 67) provides compensation for accidental injuries from any risk incident to the employment, whether that risk be great or small, usual or extraordinary, and every risk is incident to the employment where the employment is a factor in the combination of circumstances out of which the accidental injury arose. The distinction is between the fortuitous exposure of a workman in the course of his employment to a general risk not. related to the employment, and the exposure of the employee to a risk that, because of the employment, the combination of circumstances which resulted in the accidental injury might arise. Often the distinction is difficult to apply, where causal relation, if it exists, is slight; — especially so where but for the employment the workman might not have come within the zone of danger caused by conditions otherwise not related to the employment.

“A physical seizure unrelated to the employment is not such an accident as is compensable. (Matter of Hansen v. Turner Const. Co., 224 N. Y. 331.) It is the fall and the injury resulting from it that constitutes an accident within the purview of the statute. The cause may be disregarded and the inquiry limited to an investigation to disclose whether the fall, having occurred, bore with it such consequences as would not have occurred except for the employment.” (Matter of Mausert v. Albany Builders Supply Co., 250 N. Y. 21, 25.) Thus where the primary cause of the accident must be eliminated because it has no relation to the employment, the inquiry proceeds to possible co-operating causes which produced the injury. The test is the same. If, except for the employment, the fall though due to a cause not related to the employment, would not have carried the consequences it did, then causal connection is established between injury and employment, and the accidental injury arose out of the employment. • The employment has subjected the workman to a special danger which in fact resulted in injury.

In Matter of Mausert v. Albany Builders Supply Co. (supra) the proof of causal connection between employment and injuries was clear. The injuries were suffered on the street; the injured employee fell from the seat of a wagon on which he was placed in the course of his employment as a driver. His position there subjected him, to a hazard of injuries in case of a fall, different from the hazard of a fall under other conditions. In Matter of Andrews v. L. & S. Amusement Corp. (253 N. Y. 97) the injuries were also sustained through a fall on a public street, but there the injured employee at the time he fell was standing on the sidewalk and the injuries were caused by concussion upon a concrete pavement. The employment placed the workman upon the street at the time of the fall. Otherwise there was no causal relation between injury and employment. Thus the problem of whether the employment placed the workman in a zone of special danger ” was again presented.

Some hazards are incident to the use of the street, and where in the course of his employment a workman is subjected to such street risk ” they become an incident of the employment, and injury resulting from them arises out of the employment, even though they are not confined to the employment and are common to all who use the street. So we decided in Matter of Katz v. Kadans & Co. (232 N. Y. 420, 422). There we were dealing with one of those accidental injuries which result to people on the streets, which are peculiar to the use of the streets and do not commonly happen indoors.” We drew a distinction between such injuries and injuries due to cases which “ do not expose to special danger persons in a street as distinguished from those in houses.” We applied that distinction in Matter of Andrews v. L. & S. Amusement Corp. (supra). The risk that a fall, however caused, might result in concussion with a hard surface is a general hazard to which all men are subject, in their houses, shops and factories, as well as on the streets. The risk that a fall might result in concussion upon the pavement of a street is a hazard peculiar to the use of the street. A majority of the court held that the risk that a fall might result in a concussion upon the pavement of a street is not a special danger peculiar to the street but merely part of the general risk, that a fall may result in concussion upon a hard surface, to which all men are subject at their homes, their places of work and while passing along the street. The relative danger of injury from a fall upon the street and from a fall suffered in other circumstances may be a decisive factor in the determination of the question whether the risk of such injury upon the street is an incident of the employment of a workman who is placed upon the street at the time of the accident, by his employment. Even upon that point the minority differed with the majority of the court. It is irrelevant where a fall, however caused, in the place of employment, results in injuries other than those which would have resulted from a fall in another place.

All hazards, arising from conditions attached to the place of work, must be a source of special danger to the employees, for only those who resort to that place are subject to those hazards. There is a general hazard, common to all who walk or work in the street, that some object falling from a building abutting upon the street may cause injury. None the less, the location of the place of employment subjects the workers there to a special danger that objects may fall from a particular building near the place of work. That is a risk incident to the employment. So we held in Matter of Filitti v. Lerode Homes Corp. (244 N. Y. 291, 293, opinion by Crane, J.) where we said that the danger was peculiar to the situation, and a risk which arose from working alongside or underneath a building * * *. This claimant was, therefore, working within the zone of special danger.’ (Matter of Leoribruno v. Champlain Silk Mills, 229 N. Y. 470.) ”

The case of Matter of Giliotti v. Hoffman Catering Co. (246 N. Y. 279, 283) foreclosed all question of whether an accidental injury arises out of the employment when those injuries are the result of conditions attached to the place of work, even though the primary cause of the injury may not be related to the employment and the conditions of the place of work not unusually dangerous. There an employee met death through the accidental burning of the building where he was employed. The cause of the fire was not disclosed. It may have been due to extraneous causes unrelated to the employment. The hazard of injury from the burning of a building is one common to all who work and sleep in buildings. None the less, the hazard of the burning of a particular place of work is a special danger incident to employment in that place and, therefore, we held that the injury arose out of the employment. “ If the employee were not in the burning building he would not be within the zone of danger. It follows that his employment called him into a place of potential danger from that source.”

The same considerations apply to the instant case, with, perhaps, even greater force. The claimant was subject at all times and places to injury by a fall which might result in concussion, upon a hard surface.- The hazard that in a fall-she might incur injury, by striking against the table near which she was working at the time of the fall, attached to the place of employment. To that potential danger only those in that place were subject, and thus her employment called her into a zone of special danger. The potential danger of injury from a fall at some other place might have been no less. It was not the same. Though there is danger of injury, from some combination of conditions, at all times and at all places, the potential danger that any particular combination will arise and cause injury is limited both in time and space, and within those limits there is a zone of special danger from that source. Whenever conditions attached to the place of employment or otherwise incident to the employment are factors in the catastrophic combination, the consequent injury arises out of the employment.

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

Pound, Ch. J., O’Brien and Hubbs, JJ., concur with Lehman, J.; Crane, J., dissents on authority of Matter of Andrews v. L. & S. Amusement Corporation (253 N. Y. 97); Kellogg, J., not sitting.

Order reversed, etc.


author: Per Curiam.

text:
    Pierre L. Willis, Respondent, v. S. M. H. Corporation, Appellant.

      (Argued March 23, 1932;
    decided April 26, 1932.)

      Mark W. Norman and Wesley M. Messersmith for appellant.
    The evidence was insufficient as a matter of law and did not raise an issue of fact as to the dissatisfaction of the defendant assigned by it as the reason for the discharge of the plaintiff. (Victory v. Andrea, 253 N. Y. 444; Pollack v. Pollack, 71 N. Y. 137; Fleischer v. MacFadden, 248 N. Y. 613; Neuburger v. American Surety Co., 242 N. Y. 134; Jerome v. Queens City, 163 N. Y. 351; Pew v. International News Co., 244 N. Y. 510; Crawford v. Mail & Express Publishing Co., 163 N. Y. 404.) The rule of damage adopted by the trial court was erroneous. (Matter of English & Scottish Co., L. R. 5 Ch. App. 737; Pellet v. Manufacturing Co., 104 Fed. Rep. 502; Cammack v. Slattery, 241 N. Y. 49; Van Reitzenstein v. Tomlinson, 249 N. Y. 60; Witherbee v. Meyer, 155 N. Y. 446; Wakeman v. Wheeler & Wilson, 101 N. Y. 205; Brightson v. Claflin, 180 N. Y. 76; Schlossberg v. Brody, 216 N. Y. 579; Colletti v. Knox Hat Co., 252 N. Y. 468.)

      Humphrey J. Lynch and Monroe J. Cahn for respondent.
    The evidence supporting the claim that defendant’s dissatisfaction was feigned was more than ample to sustain the verdict. (Barile v. Wright, 256 N. Y. 1; Van Iderstine v. Barnet Leather Co., 242 N. Y. 425; Gilman v. Lamson Co., 234 Fed. Rep. 507; American Music Stores v. Kussel, 232 Fed. Rep. 306; Delano v. Columbia Machine Works Co., 179 App. Div. 153; 226 N. Y. 660; Beck v. Only Skirt Co., 176 App. Div. 867; Summers v. Colver, 38 App. Div. 553; Ginsberg v. Friedman, 146 App. Div. 779; Studner v. H. & N. Carburetor Co., 185 App. Div. 131; 230 N. Y. 534; Diamond v. Mendelsohn, 156 App. Div. 636; Rafter v. Fox Publishing Co., 206 App. Div. 389; 238 N. Y. 556; Hawkins v. Mapes-Reeve Con. Co., 178 N. Y. 236; Metzroth v. City of New York, 241 N. Y. 470; Frank v. Von Bayer, 236 N. Y. 473.) The court correctly charged the jury with respect to the measure of damages. (Patterson v. Meyerhofer, 204 N. Y. 96; Zadek v. Olds, Wortman & King, 166 App. Div. 60; Carns v. Bassick, 187 App. Div. 280; Bintz v. Mid-City Park Corp., 223 App. Div. 533; Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205; Drucker v. Manhattan Ry. Co., 106 N. Y. 158; Dart v. Laimbeer, 107 N. Y. 664; United States Trust Co. v. O’Brien, 143 N. Y. 284; Bagley v. Smith, 10 N. Y. 489; Dickinson v. Hart, 142 N. Y. 183; Mortimer v. Bristol, 190 App. Div. 452.)
   Per Curiam.

The plaintiff was employed on May 14, 1928, as managing director for the purposes of promoting the Club, acquiring members therefor, and developing and managing the Club, or for any one or more of said purposes in the discretion of the Owner from and after May 14th, 1928, so long as the Managing Director shall fulfill the terms of his employment to the satisfaction of the Owner but no longer than August 1st, 1930.” The employment was terminated on August 14, 1929, by notice from the defendant. The defendant claims it had the right to serve the notice because it became dissatisfied with plaintiff’s services. The evidence is sufficient to sustain the finding of the jury that the defendant’s alleged dissatisfaction was feigned and that the defendant breached its contract with the plaintiff. (Delano v. Columbia Machine Works, 226 N. Y. 660.)

The question of plaintiff’s damage remains. Prima facie his damages are the amount he would have earned if he had been retained in defendant’s employ till August 1, 1930. His compensation was fixed in the contract at “ an amount equal to 10% of the principal of all payments received from Club members * * * for initiation fees or from the sale of such stock as may be acquired by members to qualify them for Club membership.” Before plaintiff’s discharge eighty-three members had paid $203,000 for preferred stock to qualify them for membership. That compensation was payable only at the termination of the contract. In the meanwhile, the plaintiff was entitled only to a salary of $150 per week, to be deducted from the total compensation which would be earned and payable only after the plaintiff had performed all the services he agreed to perform during the fife of the contract. His discharge precluded him from rendering further services and fully earning his compensation. His damages were at least ten per cent on the amounts paid by members who had joined the club before his discharge. He was allowed in addition an amount equal to ten per cent on the sum of about $520,000, which, in accordance with the charge of the trial judge, the jury fixed as the amount he would have earned if he had not been discharged.

. Those damages are purely conjectural. The number of members obtained by the plaintiff before his discharge forms no basis for an inference that thereafter he would have obtained other members who would pay a substantial amount. Under the terms of the contract the defendant might even have retained him in its service yet excluded solicitation of new members from his duties. Even if the plaintiff’s duties had remained the same, it is impossible to estimate the influence of an intervening economic depression as an obstacle to the solicitation of new members or the progressive diminution of the influence of those financially interested in the defendant or in the club, in obtaining new members as time went on after the opening of the club; particularly since groups of new members would be required to pay progressively larger sums to qualify them for membership. In truth, the situation after the discharge was so different that neither success nor failure in obtaining members before that time can furnish any basis for estimating probable success thereafter. Of course, the compensation to which the plaintiff was entitled included a percentage of payments made by members who did actually join the club thereafter, but the evidence does not show how many new members were obtained.

The judgment of the Special Term and the Appellate Division should be reversed and a new trial ordered, unless the plaintiff stipulates that the .damages awarded shall include only the stipulated percentage of payments actually made by members who joined prior to the date set for the termination of the employment, such damages to be fixed by agreement, or in case of disagreement, by the court or a referee appointed by the court, and in that event the judgment should be modified accordingly and affirmed as modified. (See 259 N. Y. 629.)

Pound, Ch. J., Crane, Lehman, Hubbs and Crouch, JJ., concur; O’Brien, J., dissents on the ground that there is no evidence to indicate that the assigned reason for the discharge was not the true reason; Kellogg, J., not sitting.

Judgment accordingly.


text:
    Arthur M. Lee, Respondent, v. Stanley P. Woodward, Appellant.
    (Argued March 22, 1932;
    decided April 26, 1932.)

      William L. Wemple and Daniel J. McMahon for appellant.
    The evidence compels a judgment for the defendant, as a matter of law. (Sibbald v. Bethlehem Steel Co., 83 N. Y. 378; Amies v. Wesnofski, 255 N. Y. 156.)

      Henry Waldman and Joseph G. Abramson for respondent.
    Plaintiff, having been asked by defendant to step out of the negotiations, cannot be denied his commissions on the ground that plaintiff took no part in the subsequent negotiations. (Sibbald v. Bethlehem Steel Co., 83 N. Y. 378; Lord v. United States Transportation Co., 143 App. Div. 437; Ware v. Kerwin, 24 App. Div. 198.)
   Per Curiam.

The evidence presented by the plaintiff might be sufficient to show that negotiations which he initiated as broker were the procuring cause of the sale to a syndicate of which the defendant was a member. Even so, a broker who is the procuring cause of a sale is entitled to no commission from the buyer unless the buyer has employed him and agreed, expressly or impliedly, to pay compensation for his services. Here the plaintiff initiated negotiations with the defendant for the purchase of the stock after the plaintiff had been employed by the owner of the stock to sell it. The defendant, with knowledge of the broker’s employment by the seller, agreed to pay him $25,000 for his services in procuring an option on the stock, “ provided such option or call be exercised by defendant or his nominee.” The plaintiff procured such an option from the seller with knowledge on the part of the seller that the plaintiff was acting as broker for both parties. The option was never exercised by the defendant, and the sale, negotiated after the option had come to an end, was not the fruit of the original option. On the contrary, though the sale was arranged with a person originally associated with the defendant in negotiations preliminary to the exercise of the option, it was arranged only after the seller had become weary of negotiations with the defendant as the holder of the option and had refused to continue them. The defendant’s participation in the subsequent purchase was due solely to the insistence of the person with whom the sale was arranged that he was free to choose his own associates in the purchase. The option was then no longer in existence, and constituted no factor in the negotiations of purchase and sale. Thus the plaintiff has failed to show that the stipulated contingency has arisen upon which he was to receive compensation for his services. A different. problem would be presented if the sale as arranged had been the result of the option, though on terms more favorable to the holder of the option.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts. (See 259 N. Y. 628.)

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

Judgments reversed, etc.


text:
    Elizabeth G. Connor, Appellant, v. Teachers’ Retirement Board of the City of New York, Respondent.

      (Argued March 16, 1932;
    decided April 26, 1932.)

      Samuel D. Smoleff and Leonard M. Wallenstein for appellant.
    The decision of the Retirement Board as to the amount of credit allowed to the teacher for service in vacation schools and vacation playgrounds is final and conclusive. (Matter of Murray v. Teachers’ Retirement Board, 258 N. Y. 389.) The certificate of prior service is final and conclusive with respect” to the computation of the total credit allowed. (Supervisors v. Briggs, 2 Denio, 26; Smith v. Hedges, 223 N. Y. 176; People ex rel. Smith v. Clarke, 174 N. Y. 259; Equitable Trust Co. v. Hamilton, 226 N. Y. 241.) The plaintiff’s attendance at the Brooklyn Training School for Teachers entitled her to be credited with two years of teaching service for one year of attendance at such school, in accordance with the by-law of the Board of Education of the city of Brooklyn relating to such attendance. (Bogert v. Board of Education, 106 App. Div. 56; Fitzpatrick v. Board of

      Education, 67 Misc. Rep. 564; People ex rel. Callahan v. Board of Education, 174 N. Y. 169; Moore v. Board of Education, 121 App. Div. 862; Brooklyn Teachers’ Assn. v. Board of Education, 85 App. Div. 47; Matter of Poucher v. Berry, 249 N. Y. 16; People ex rel. Chase v. Wemple, 144 N. Y. 478; People ex rel. Eckerson v. Zundel, 157 N. Y. 513; People ex rel. Best v. Preston, 62 Hun, 185; 131 N. Y. 644.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and Willard S. Allen of counsel), for respondent.
    The Board was without jurisdiction to allow the plaintiff a credit of two years as for teaching service because of her attendance during not more than one calendar year as a pupil at Brooklyn Training School. (Matter of Creveling v. Teachers’ Retirement Board, 255 N. Y. 364; Matter of College of City of New York v. Hylan, 205 App. Div. 372; 236 N. Y. 594; Anthony v. Syracuse University, 224 App. Div. 487; Goldstein v. New York University, 76 App. Div. 80; Jeu Jo Wan v. Nagle, 9 Fed. Rep. [2d] 309; United States v. Tod, 297 Fed. Rep. 172; Rees v. Teachers’ Retirement Board, 247 N. Y. 372; People v. City of Buffalo, 57 Hun, 577; People ex rel. King v. Gallagher, 93 N. Y. 438; Johnson v. Board of Education, 210 App. Div. 723; Katterchinsky v. Board of Education, 215 App. Div. 695; Matter of Murray v. Teachers’ Retirement Board, 258 N. Y. 389; Matter of Langdon v. Teachers’ Retirement Board, 226 App. Div. 870; 252 N. Y. 508; Clark v. Utica Gas & Electric Co., 224 App. Div. 448; St. John of Vizzini v. Cavallo, 134 Misc. Rep. 152; 227 App. Div. 782; People ex rel. Knoblauch v. Warden, 216 N. Y. 154; Matter of McAneny v. Board of Estimate, 232 N. Y. 377.) The Board was without jurisdiction to allow the plaintiff credit, for retirement purposes, because of her vacation playground and vacation school service. (Matter of Murray v. Teachers’ Retirement Board, 258 N. Y. 389.) The Board had no jurisdiction to allow the plaintiff two years of credit which she did not claim. (Weld v. Postal Telegraph-Cable Co., 210 N. Y. 59; De Witt v. Hosmer, 3 How. Pr. 284; McMaster, Inc., v. Chevrolet Motor Co., 3 Fed. Rep. [2d] 469; Board of Medical Examiners v. Taylor, 56 Tex. Civ. App. 291; State v. Lock, 302 Mo. 400; State v. Illinois Central R. Co., 246 Ill. 188; United States Fidelity & Guaranty Co. v. Downey, 38 Col. 414; State v. Brown, 83 Fla. 339; Matter of Murray v. Teachers’ Retirement Board, 258 N. Y. 389; People v. Journal Co., 213 N. Y. 1.) The error of twenty-five days’ credit in plaintiff’s favor in the computation of her vacation playground and vacation school service may now be corrected. (Matter of Murray v. Teachers’ Retirement Board, 258 N. Y. 389.)
   Lehman, J.

The plaintiff on August 1st, 1917, was a teacher regularly employed in the public schools of the city of New York. Her rights as a contributor to the teachers retirement fund are measured by the length of her prior service as that term is defined in the statute (Greater N. Y. Charter, § 1092, subd. H; Laws of 1901, ch. 466, amd. Laws of 1917, ch. 303). The section which defines the nature of the service for which credit may be given also establishes the procedure by which the length of the service must be determined. The teacher must file a detailed statement of all such service rendered by him.” Then the Retirement Board must verify such statement as to prior-service and shall issue to each teacher a certificate certifying to the aggregate length of his prior-service. Such certificate shall be final and conclusive as to his prior-service, unless thereafter modified ” within a period of time fixed by the statute.

The plaintiff filed a detailed statement of her prior service, which presumably the Retirement Board verified before it issued its certificate certifying to the aggregate length ” of the plaintiff’s prior service. The plaintiff’s detailed statement, if correct, showed a prior service, as defined in the statute, for periods which aggregated twenty years, three months and twenty-seven days. The plaintiff also made claim in her detailed statement that she was entitled to a credit of two years of prior service for attendance as a pupil at the Brooklyn Training School. At the time the plaintiff attended the Brooklyn Training School as a pupil, the by-laws of the Board of Education of Brooklyn provided that a teacher, who had attended the training school, was entitled to a credit for two years’ experience as a teacher. The statute defining the prior service, which measured the rights of a teacher who contributed to the retirement fund, excluded such experience. Nevertheless the Retirement Board certified an aggregate length of service which not only included two years for attendance at the training school but which, through error in addition, is two years longer than the aggregate of all the credits which the plaintiff ever claimed.

Subsequent investigation of the payrolls of the Department of Education disclosed an error of twenty-five days in the plaintiff’s detailed statement of service. Thus it now appears that the plaintiff holds a certificate, for an aggregate length of prior service as defined by the statute, more than four years longer than that to which her prior service in fact entitled her, and more than two years longer than that to which she claimed to be entitled. The time limited for the modification of the certificate has long passed. The Retirement Board maintains that, even so, the certificate can confer upon the plaintiff no rights to which she was not entitled, under the terms of the statute, when she filed her detailed statement; and that the certificate may still be amended to correct errors in the certificate of the aggregate length of service by which those rights must, under the statute, be measured. The plaintiff maintains that all question of .the correctness of the certificate is foreclosed after the certificate has become conclusive. The resultant controversy has been submitted to the Appellate Division which adjudged that the errors both of fact and law may be corrected.

The Legislature has conferred upon the Retirement Board jurisdiction to “ verify ” a teacher’s “ detailed statement ” of prior service as defined in the statute. It must decide whether in fact the teacher has rendered all the service included in that statement. So, too, it must determine the equivalence in fractions of years of service rendered on the basis of hour, day or session. Its decisions, as embodied in the certificate “ certifying to the aggregate length ” of a teacher’s service, are declared, in unmistakable terms, to be “ final and conclusive.” The power to decide at all, necessarily carries with it the power to decide wrong, as well as right.” (Supervisors of Onondaga v. Briggs, 2 Denio, 26, 34.) Reconsideration of a question submitted to a competent tribunal for decision is barred after that decision has become final and conclusive. In the absence of fraud or collusion, the only avenue left open for attack is through a gap in the jurisdiction of the tribunal. A decision upon any question outside of the jurisdiction of the tribunal is without force or effect.

In two recent cases we have considered the effect of a certificate of the aggregate length of prior service. Together they establish the principles which govern the questions presented in this controversy. The rights of teachers who contribute to the Retirement Fund are measured by prior service, as defined by the statute. Jurisdiction to determine all questions as to the length of the service, as defined by statute, of any teacher is conferred upon the Retirement Board. There the decision of the Board is conclusive. The Board exceeds its jurisdiction when it certifies to an aggregate length of prior service which is not the aggregate of a teacher’s service as defined by the statute. There the decision of the Board is without effect.

In Matter of Langdon v. Teachers’ Retirement Board (252 N. Y. 508) the certificate, though purporting to certify the aggregate length of a teacher’s service, as defined in the statute, in fact included in the aggregate length of such service, credits for prior experience which did not fall within the statutory definition of service. There we held that the teacher’s rights in the retirement fund, measured by service, as defined in the statute, could not be increased by the assumption by the Retirement Board of power to include in its certificate of the aggregate length of such service, credits for experience, which did not fall within the statutory definition of service. Here the Retirement Board exceeded its powers in the same way. It had no jurisdiction to include a credit for attendance at the training school in the aggregate length of service for which it issued a certificate. The certificate is not conclusive to the extent that it embodies decision on matters beyond the jurisdiction of the Board.

In Matter of Murray v. Teachers Retirement Board (258 N. Y. 389) we pointed out the distinction between such a case and a case where the Board erroneously decided a question within its jurisdiction. There error was due to insufficient verification of the detailed statement filed by the teacher. The purpose and effect of the statute which requires the Board to verify the detailed statement of service of a teacher before issuing a final and conclusive certificate of the aggregate length of service of the teacher is to foreclose all question of the length of service, as defined by the statute and as shown in the teacher’s statement. Inquiry into the actual facts is then at an end. The decision in that case was rendered after submission of the controversy in the present case. Otherwise, the Appellate Division would doubtless not have ordered the excision of twenty-five days from the period of service, shown on the detailed statement and included in the aggregate length of service certified by the Board.

The application of the general principle is perhaps more difficult when the aggregate length of the prior service of a teacher, as shown in the detailed statement, verified by the Retirement Board, is less than the aggregate of the total length of service as certified by the Board. The circumstance that the error is due solely to computation does not, alone, render the result open to attack, if the Legislature intended that the Board should finally determine the correct computation. Here, since the Legislature has required the Board to issue a final and conclusive certificate “ certifying to the aggregate length ” of the service of a teacher, it has necessarily given the Board the power to add up the separate periods of service which are part of the aggregate, but it would be unreasonable, in the absence of clear and express language, to hold that the Legislature intended to foreclose all question of the correctness of the Board’s computation where mere comparison of the detailed statement and the certificate discloses the error. A decision necessarily involves a dispute, actual or potential. (Cf. People v. Sutherland, 207 N. Y. 22; People v. Journal Co., 213 N. Y. 1.) We may, hardly, presume that the Legislature intended to give conclusive effect to a manifest error in computation, even where there never has been room for possible dispute. It would be anomalous, under such circumstances, to attach the effect of a final and conclusive decision to an act which calls for no expert knowledge or training, and involves no exercise of discretion or weighing of opposing considerations.

The judgment of the Appellate Division should be modified by striking out the provision for the amendment of the certificate in regard to the length of plaintiff’s service in the vacation schools as shown on the detailed statement, and as modified affirmed, without costs.

Pound, Ch. J., Crane, O’Brien and Hubbs, JJ., concur; Kellogg, J., not sitting.

Judgment accordingly.


author: Lehman, J. Crane, J. (dissenting).

text:
    James W. McCaffrey, Appellant, v. The State of New York, Respondent.
    (Claims Nos. 19211 and 20150.)
    (Argued March 28, 1932;
    decided April 26, 1932.)

      M. J. Conboy for appellant.
    The claimant is a laborer within the meaning and intent of the statute and the difference between the wages received by him from the State and the prevailing rates of wages for laborers in the town of Waterford is the measure of his recovery. (Case v. State, 254 N. Y. 568; Osborne v. International Ry. Co., 226 N. Y. 421; Matter of Meyer, 209 N. Y. 386; Campbell v. City of New York, 244 N. Y. 317; Travelers’ Ins. Co. v. Padula Co., 224 N. Y. 397.) One employed on a lock of the canal system is a laborer and entitled to the benefits of the statute. (Wright v. State of New York, 223 N. Y. 44; Clark v. State of New York, 142 N. Y. 101.)

      John J. Bennett, Jr., Attorney-General (Joseph I. Butler of counsel), for respondent.
   Lehman, J.

The claimant accepted employment as a lock laborer in the State service. His wages were fixed by agreement and he has been paid the wages he agreed to accept. The statute (Laws of 1929, ch. 479) does not provide that the wages of a laborer shall be determined by any rule or standard; it does provide that the State shall not pay less than the prevailing rate of wages in the same trade or occupation in the locality within the State where the claimant is employed. All laborers are entitled to the protection of the statute, but when a laborer claims that the stipulated wages which he has received are less than such prevailing rate, he has the burden of establishing his claim by proof.

The claimant has shown that the prevailing rate of wages paid by contractors to common laborers ” in the same locality is fifty cents an hour. If the plaintiff was employed by the State to exercise the trade or occupation of a “ common laborer ” then the proof is sufficient, though the nature of the employment be described as a lock laborer and no other lock laborers be employed in that locality. That is clear. The proof, however, is otherwise. A common laborer, employed by a contractor, is one who is employed to perform heavy unskilled work such as enters into road and building construction. It is casual work done by the hour and calling for constant muscular effort. Here the claimant was employed, not by the hour, but for long periods each year to assist in tending a lock. His work called for no constant muscular effort. Intermittent effort was called for at times when vessels were passing through the lock. His trade or occupation was more nearly analogous to that of a watchman, a bridge tender or even a farmhand than to that of a common laborer in construction work. Perhaps no others in that neighborhood are engaged in similar trade or occupation. Then there can be no prevailing rate of wages. Perhaps the claimant merely failed to show a rate which does exist. We are concerned only with the fact that, without proof of a prevailing rate, the claimant fails to show that he has received less than the prevailing rate.

It is not the purpose, or effect, of the statute that the compensation of all laborers shall be determined by some prevailing rate of wages. In order to avoid evils that might rise from payment of compensation less than the prevailing rate paid in the same trade or occupation in the same locality, the Legislature has imposed a limitation upon the contractual rights of the State. The limitation does not apply under the express terms of the statute, or by reasonable implication, where the proof fails to show that others are employed in the same trade or occupation in that locality. Though the work performed for the State need not be identical with work performed in the same trade or occupation for other employers, it must at least fall within the same general category.

Judgment should be affirmed, with costs.

Crane, J. (dissenting).

The claimant was employed

by the State of New York as a lock laborer between the 1st day of April, 1923, and the 31st day of August, 1930, for the several periods of time set forth in his claim. He worked on lock No. 2, Erie canal, situated in the town of Waterford, Saratoga county, N. Y. During said period, common laborers employed by contractors doing work in the same locality were paid as high as eighty cents an hour, and none were paid less than fifty cents an hour, except during a short period of about two months in the year 1924, when they were paid forty-five cents an hour. The prevailing rate of wages for common laborers during the period in question was fifty cents an hour. If the claimant had been paid at this rate for the number of hours he was employed by the State of New York, he would have been paid a total sum of $7,210, or $1,679.23 more than he actually did receive for the period that he was employed. For this amount McCaffrey filed two claims, pursuant to the provisions of chapter 479 of the Laws of 1929, as amended by chapters 701 and 736 of the Laws of 1930, and by which laws the claimant, an employee of the Barge canal system of the State of New York, was given the right to recover from the State "for the difference between the wages received by him and the amount of wages which would have been payable at the prevailing rate of wages in the locality where claimant was employed.

Chapter 479 of the Laws of 1929 provides:

“ Section 1. Jurisdiction is hereby conferred on the court of claims to hear, audit and determine the claims of laborers, workmen and mechanics against the state for services rendered since April first, nineteen hundred twenty-three, while in the state employ on the Erie canal, the Oswego canal and the Champlain canal, provided to be improved by chapter one hundred and forty-seven of the laws of nineteen hundred three and acts amendatory thereof and supplemental thereto, by reason of the failure of the state, its officers and agents to pay claimants the prevailing rate of wages in the trade or occupation in the locality within the state where claimants were respectively employed and if the court finds that any such claimant since April first, nineteen hundred twenty-three, shall have been paid for his services less than such prevailing rate in the locality where employed, the difference between the amount so paid any such claimant and the amount of wages which would have been payable at the prevailing rate of wages in the locality, as found by the court, shall constitute a legal and valid claim in favor of the claimant against the state and the state shall be deemed to be hable therefor, and the court may make an award and render judgment for the claimant against the state in such sum as shall be just and equitable, notwithstanding the lapse of time since any such claim or claims or any part thereof accrued, or the failure to file any such claim or claims within the time prescribed by law, but no award shall be made or judgment rendered hereunder unless such claim shall have been filed with the court of claims within six months after this act takes effect.”

The amendments of 1930 are not material to our discussion, although bearing upon the rights of the claimant.

The constitutionality of this act was sustained by this court in Case v. State of New York (254 N. Y. 568). No opinion was written at that time, and as the act is again challenged, it may be well to state our reasons for our decision. We said in Campbell v. City of New York (244 N. Y. 317, 324): “ The public policy of the State declared by successive Legislatures during a period of thirty years (L. 1897, ch. 415; L. 1899, ch. 567; L. 1900, ch. 298; L. 1906, ch. 506; L. 1909, ch. 292; L. 1913, ch. 494; L. 1916, ch. 152; L. 1921, ch. 642) exacts the payment of the rate of wages prevailing in the vicinage to laborers and mechanics employed upon the public works. We trace in judicial decision and constitutional amendment the tides of thought and sentiment.” The constitutional amendment referred to is article XII, section 1: “ The legislature may regulate and fix the wages or salaries, the horns of work or labor, and make provision for the protection, welfare and safety of persons employéd by the State or by any county, city, town", village or other civil division of the State, or by any contractor or subcontractor performing work, labor- or services for the State, or for any county, city, town, village or other civil division thereof.” Even before this constitutional amendment it was held that the Legislature might lawfully prescribe the compensation of State employees employed on public works. (Clark v. State of New York, 142 N. Y. 101.)

Chapter 567 of the Laws of 1899 provides:

The wages to be paid for a legal day’s work as herein-before defined to all classes of such laborers workmen or mechanics upon all such public work or upon any material to be used upon or in connection therewith shall not be less than the prevailing rate for a day’s work in the same trade or occupation in the locality within the State where such public work on, about or in connection with which such labor is performed in-its final or completed form is to be situated erected or used.”

The same provision is now subdivision 3 of section 220 of the Labor Law (Cons. Laws, ch. 31). By chapter 563 of the Laws of 1927 locality ” was defined to be “ the town, city, village or other civil division of the State wherein the physical work is being performed.” (See now, Labor Law, § 220, subd. 5-b.) No doubt the reason for this definition of “ locality ” by the act of 1927 was the decision of the United States Supreme Court in Connally v. General Construction Co. (269 U. S. 385), holding that the word “ locality,” standing alone and by itself, was too vague and indefinite to be the foundation for a criminal prosecution based upon a labor law requiring the prevailing rate of wages in the locality ” where the work was done. However, in the Campbell case we held that this decision did not render unconstitutional the provision of our Labor Law, requiring contractors with municipalities to pay the prevailing rate. The amendment of 1927 was not necessary for this purpose. The suggestion was also there advanced that the Connally case dealing with a criminal prosecution might not lead to such a strict interpretation of the statute when applied in civil actions to recover on contracts of employment. However this may be, if contractors with the State were obliged, prior to 1927, to pay the prevailing rate, it certainly would be fair and just that the State itself in employing labor should comply with the same law. At least there would be this moral obligation. In our judgment, however, the Labor Law, prior to the amendment defining “ locality,” was sufficiently definite to make the law constitutional as against the State for the purposes of enforcing in civil actions the claims for wages.

Under these laws and obligations of the State, chapter 479 of the Laws of 1929 was merely an enabling act permitting laborers like this claimant to present their claims within a certain designated period.

Case (in Case v. State of New York, supra) was a carpenter and he recovered the prevailing rate for carpenters, laborers and mechanics paid in Syracuse. The claimant in Wright v. State of New York (223 N. Y. 44) was a locktender, and he was paid the prevailing rate for working men in the locality, although of course there was no such occupation as locktenders outside of the employment on the State canals.

Whatever we may think, especially at this time of falling wage and unemployment, of the propriety and wisdom of this class of legislation, we as a court are to declare and follow the law, not make or remake it. So far as we can ascertain it, our purpose as well as duty is to carry out the intention of the Legislature, and give to their acts full force and meaning. The Court of Claims, while finding that the prevailing rate for common laborers in the town of Waterford was not less than fifty cents an hour, could find no prevailing rate for lock laborers. Of course there would be no lock laborers except upon the canals. The above statutes would be meaningless if the prevailing rate to be paid laborers on the canals was to be determined by the wages of other lock laborers when no such class could possibly exist. The words of the statute, “ the prevailing rate of wages in the trade or occupation in the locality within the State where claimants were respectively employed,” refer to trades or occupations similar to that of the State employee. In Case v. State of New York (supra) the claimant was allowed what other carpenters in Syracuse were paid. In the Wright Case (supra) the locktender recovered the amount paid to workmen and mechanics of his class. McCaffrey in this case should have been paid, and is entitled to receive, the prevailing rate paid to laborers — workmen who do laboring jobs. The evidence shows this to have been not less than fifty cents an hour. Under the Constitution and the laws herein cited, McCaffrey is entitled to $1,679.23, with interest, according to the facts as found by the Court of Claims.

The judgment of the Appellate Division and that of the Court of Claims should be reversed, and judgment on the findings given for the claimant, with costs in all courts.

O’Brien, Hubbs and Crouch, JJ., concur with Lehman, J.; Crane, J., dissents in opinion in which Pound, Ch. J., concurs; Kellogg, J., not sitting.

Judgment affirmed. (See 259 N. Y. 587.)


text:
    Angeline Kawacz, Individually, and as Administratrix of the Estate of Frank Kawacz, Deceased, Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant.

      (Argued March 18, 1932;
    decided May 3, 1932.)

      Evan Hollister for appellant.
    In the absence of evidence that the defendant’s engineer, having discovered the plaintiff’s intestate when he was 600 feet distant walking toward his train on the same track in broad daylight, recklessly ran him down, he should not be held guilty of negligence. (Fierro v. N. Y. C. R. R. Co., 256 N. Y. 446; Foley v. N. Y. C. R. R. Co., 177 N. Y. 430; Culhane v. N. Y. C. R. R. Co., 60 N. Y. 133; Griffith v. Long Island R. R. Co., 147 App. Div. 693.) The plaintiff’s intestate, while walking on a straight track in clear weather in the daytime, toward the approaching train which he had been warned to avoid, assumed the risk of being struck when he neglected to look in the direction he was proceeding in time to give the train the right of way. (Chesapeake & Ohio Ry. v. Nixon, 271 U. S. 218; Biernacki v. Pennsylvania R. R. Co., 45 Fed. Rep. [2d] 677.)

      George E. Phillies, Frank G. Raichle and J. C. Randal for respondent.
    The finding of the jury that the defendant was negligent is supported by the evidence. (Porter v. L. & N. Ry. Co., 202 Ala. 139; McLaughlin v. C., R. I. & P. Ry., 115 Ill. App. 262; Bouwmeester v. Railway, 63 Mich. 557; Bragg v. C. N. E. Ry. Co., 228 N. Y. 54; C., M. & St. Paul Ry. Co. v. Kane, 33 Fed. Rep. [2d] 866; Sutton v. N. Y., N. H. & H. R. R. Co., 66 N. Y. 243; Nicholson v. Erie R. R. Co., 41 N. Y. 525; Rosenthal
      v. N. Y. Ry. Co., 112 App. Div. 431; Haley v. Kansas City, M. & B. R. Co., 113 Ala. 640; Martin v. Chicago & Northwestern R. R. Co., 194 Ill. 139; Krenzer v. Pittsburgh R. R. Co., 151 Ind. 187; B. & O. Ry. Co. v. Welch, 114 Md. 536; Omaha R. R. Co. v. Cook, 42 Neb. 557.) The plaintiff’s intestate, unaware of the approach of the train, did not assume the risk of being recklessly run down without warning by an engineer who discovered him in a position of peril on the track. (Biernacki v. Pennsylvania R. R. Co., 45 Fed. Rep. [2d] 667.)
   O’Brien, J.

On a summer morning long after daylight one of defendant’s milk trains was traveling on its daily run in a westerly direction, and at the same time Frank Kawacz, employed by defendant as a track walker and section hand, was proceeding on foot, as was his custom and part of his duty several times a week, in an easterly direction on the same track. The train was five minutes late and Kawacz knew it. They collided and, as a result of Kawacz’s death, his estate has recovered a substantial judgment;

The engineer, who was plaintiff’s witness, testified that, at a distance of six hundred feet, he first saw a man on the track and blew his whistle. Then the man seemed to raise his head and, although he continued to walk toward the train, the engineer thought that he had heard the whistle. At a distance of one hundred feet the train slowed to make the stop at a milk station but, as the man gave no indication of leaving the track and as the engineer for the first time then realized that he might remain, at a distance of sixty feet the emergency brakes were applied. Only then did Kawacz make any effort to avoid the collision but his attempt came too late. Whether he failed previously to see the train or, seeing it, endeavored to cut the time of his departure from the track by the finest margin cannot be known. In any event the jury on the trial of this action under the Federal Employers’ Liability Act (U. S. Code, tit. 45, ch. 2, § 51) determined, that decedent’s negligence contributed to his death. That part of the verdict is fully supported by evidence but we are of the opinion that the judgment must be reversed for the reason that, under our own decisions, the engineer was free from negligence and that, under the Federal cases, decedent assumed the risk.

Perhaps the testimony of some of plaintiff’s witnesses other than the engineer may be regarded as rising to the level of a contradiction of bis testimony in relation to the blowing of the whistle and thus as creating an issue of fact on that branch of the case. Even if we assume that no signal was sounded, still -under all the other facts most favorable to plaintiff’s case no omission of any duty owed by the engineer to the deceased has been shown. From the record he does not appear to be a man of abnormal qualities, failing neither in those attributes of general intelligence, judgment, alertness of mental perception, clarity of physical vision or that average sense of humanity, at least, with which the ordinary driver of a locomotive is endowed. On the evidence no jury could find any warrant in setting him apart from others engaged in the same occupation. His error amounted at most to nothing worse than a failure to use the best possible judgment. Apparently he is the standard locomotive engineer and is entitled to act as others of his kind. No jury has the right to conclude that the normal man at a throttle, seeing a person six hundred feet away on a railroad track in broad daylight, would even imagine that such a person would continue his course and walk into an approaching train. Unless the engineer recklessly runs him down he is not guilty of negligence. (Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164; O’Brien v. Erie R. R. Co., 210 N. Y. 96; Fierro v. N. Y. C. R. R. Co., 256 N. Y. 446.) Liability for negligence needs a firmer foundation than mere error of judgment. (Woloszynowski v. N. Y. C. R. R. Co., 254 N. Y. 206.) It was the employee on the track rather the one in the cab who assumed the risk of a collision. (Chesapeake & Ohio Ry. Co. v. Nixon, 271 U. S. 218; Davis v. Phila. & R. Ry. Co., 276 Fed. Rep. 187.)

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

Pound, Ch. J., Crane, Lehman and Hubbs, JJ., concur; Kellogg, J., not sitting.

Judgments reversed, etc.


text:
    The People of the State of New York, Respondent, v. Louis Roper, Appellant.

      (Argued March 17, 1932;
    decided May 3, 1932.)

      Harris Berlack, H. Edward Raiden, Frank Aranow and Alfred I. Dittler for appellant.
    The infant defendant was not capable of committing a felony. (People v. Hütter, 184 N. Y. 237; People v. Wagner, 245 N. Y. 143; People v. Moran, 246 N. Y. 100; Penal Law, § 2186; People v. Gardner, 78 Misc. Rep. 514; People v. Pollak, 154 App. Div. 716; 209 N. Y. 541.) The question of deliberate and premediated killing should have been presented to the jury. (People v. Van Norman, 231 N. Y. 454; People v. Moran, 246 N. Y. 100.)

      Thomas C. T. Crain, District Attorney (Robert C. Taylor of counsel) for respondent.
    If the murder happens to be a felony murder, a person, no matter how tender his age, is capable of committing the underlying felony which makes him guilty of first degree murder. (Penal Law, §§ 1044, 2186.) The trial judge was correct in not submitting the lesser degrees of homicide. (People v. Martone, 256 N. Y. 395; People v. Giusto, 206 N. Y. 67; People v. Fisher, 249 N. Y. 419; People v. Schleiman, 197 N. Y. 383; People v. Seiler, 246 N. Y. 262.)
   Lehman, J.

A little before two o’clock in the morning of January 20th, 1931, two youths or men, with handkerchiefs covering their faces and armed with pistols, entered a negro restaurant on Seventh avenue in New York city. At the point of the pistol, one of them compelled the people in the restaurant to go to the rear and took some money from their persons. The same youth shot and killed William Groce, a customer of the restaurant. The other bandit took money from the cash register. Then both escaped.

The robbery and shooting were promptly reported to the police. Those who had been present in the restaurant were examined at the precinct station house in the presence of a stenographer. Thorp, the manager, gave a description of the general appearance and build of the masked bandits. They were, so he said, both negroes of dark complexion. One was tall and one was short. “ He had a soft face, well dressed, this tall fellow. Short fellow had a rough face.” Promptly the police sent out a general police alarm for the apprehension of these men. The description of the men wanted was of necessity meagre. One of them has never been apprehended. A few nights after the robbery the defendant Roper was arrested on the street, after being shot by police officers. On the chance that Roper might be one of the robbers, Thorp was summoned to look at the defendant while the defendant was in the operating room of the hospital awaiting surgical treatment for his wounds. Before the magistrate and at the trial Thorp positively identified the defendant as the tall robber with a soft face ” who had shot William Groce.

The indictment of the defendant and one “ John Doe ” for murder in the first degree charges, in common-law form, that the said defendants in the County of New York * * * with force and arms, in and upon one William Groce * * * willfully, feloniously and of their malice aforethought did make an assault, * * * ' giving unto him * * * one mortal wound of which * * * the said William Groce * * * did die.” Thorp was the only eye witness of the crime who was produced by the prosecution. The People frankly admit that none of the others, if produced, could identify the defendant as one of the men whose faces were concealed by handkerchiefs while they robbed the restaurant. Thorp explained that at one time the handkerchief which covered the defendant’s face slipped down and that thus he had opportunity to see the defendant’s features while the handkerchief was being hurriedly readjusted.

The trial was conducted with eminent fairness, and we find no reversible error in the admission or exclusion of evidence or in the charge, if the case was tried and submitted to the jury on the proper theory. Perhaps there may be doubt as to Thorp’s identification of the defendant. On that question the defendant has had a fair trial, and none of his substantial rights have been infringed by excess of zeal or fault of police, prosecuting attorney or trial judge. A majority of the court, at least, find that the verdict of the jury is not against the weight of evidence upon the issue presented to the jury. We confine discussion in this opinion to the question whether the jury’s finding of guilt on these issues supports the defendant’s conviction of the crime of murder in the first degree.

Thorp’s testimony establishes that a negro, whom he identified as the defendant on trial, shot and killed William Groce while he and another negro were engaged in taking money at the point of a pistol from the cash register of the restaurant and from the persons of those who were present in the restaurant. The defendant’s age at the time of the homicide was not determined in the manner provided by section 817 of the Penal Law. Upon the preliminary examination of the jurors, the assistant district attorney stated to them: “ The defendant Louis Roper at the time of the alleged commission of the crime by him was between fifteen and sixteen years of age.” Testimony that the defendant was under the age of sixteen was uncontradicted. The case was tried and submitted to the jury upon the assumption that the fact that the defendant was at the time of the homicide under the age of sixteen carries no legal consequences in a trial for murder in the first degree. We are called upon to test the validity of that assumption in this case.

Only a child under the age of seven years is incapable as matter of law of committing a crime (Penal Law, § 816), though a child of the age of seven years, and under the age of twelve years, is presumed to be incapable of crime, but the presumption may be removed by proof that he had sufficient capacity to understand ” (§ 817). Even so, not every act or omission which, if committed by an adult, would be a crime, is a crime when committed by a child, for the Legislature has expressly decreed that “ a child of more than seven and less than sixteen years of age, who shall commit any act or omission which, if committed by an adult, would be a crime not punishable by death or fife imprisonment, shall not be deemed guilty of any crime, but of juvenile delinquency ” (Penal Law, § 2186). Murder in the first degree is punishable by death. Therefore, it is clear that a child of fifteen may be guilty of the crime of murder in the first degree. When guilt of a crime has been established, its penal consequences are the same for child and adult criminal. But guilt cannot be established without proof of every essential element of the crime and, since a felonious intent is an essential element of the crime of murder, guilt of a defendant can never be established without proof of such intent. Thus, the guilt of a defendant charged with murder in the first degree may depend upon his capacity to form the felonious intent. Then the fact that a defendant is under the age of sixteen may carry legal consequences.

“ There can be no minder without evidence of malice and of a felonious intent and a depraved mind. The indictment was sufficient in form when it simply accused defendant of having killed the deceased ‘ willfully, feloniously and with malice aforethought.’ On the trial it was necessary to prove such malice and willful and felonious conduct, and this necessity was satisfied in accordance with the provisions- of the statute by showing that the homicide occurred while the defendant was engaged in the commission of another felony (People v. Conroy, 97 N. Y. 62, 68, 69; People v. Giblin, 115 N. Y. 196).” (People v. Nichols, 230 N. Y. 221, 226.)

Here, as in that case, the conviction rests upon a finding of the jury that a human being was killed by a person “ engaged in the commission of another felony. True, the evidence is sufficient to support a finding that the homicide was committed by the defendant from a deliberate and premeditated design to effect the death of the person killed,” and a homicide committed in that way also would constitute murder in the first degree (Penal Law, § 1044) and might be proven under an indictment in common-law form. The jury, if such question had been presented to it, might have found that the defendant formed such a deliberate design, though under the age of sixteen; but the jury here made no such finding, for no such question was presented to it. If the trial judge in his charge had left that question to the jury, he would have been bound to charge on the degrees of homicide, and the jury would have been free to find a verdict of guilt in lesser degree than murder in the first degree. He chose to do otherwise. He charged the jurors that they were concerned only with the question of whether a human being was killed during the commission of a felony in which the defendant was a guilty participant, and' that their verdict must be either guilty of murder in the first degree or not guilty.

“We may not sustain a conviction erroneously secured on one theory on the conjecture that it would have followed just the same if the correct theory had been applied.’ (Hiscock, Ch. J., in People v. Smith, 232 N. Y. 239, 244.) A criminal, however shocking his crime, is not to answer for it with forfeiture of fife or liberty till tried and convicted in conformity with law.” (People v. Moran, 246 N. Y. 100, 105.) Certainly we may apply no other rule where the defendant, though perhaps a hardened offender, is still of tender age. The judgment may be sustained only if, in spite of his youth, the defendant’s participation in a felony establishes his guilt of murder in the first degree.

The charge of the trial judge was fair and accurate, if the defendant’s participation was with felonious intent. The crime of murder charged in the indictment is a single crime, whether committed by design or during the commission of an independent felony; “ the independent felony like the deliberate and premeditated intent, being established solely for the purpose of characterizing the degree of the crime so charged, the evil mind or purpose inherent in the killing.” (People v. Lytton, 257 N. Y. 310, 315.) The defendant may have participated in the robbery; but unless that participation was with felonious intent he was not guilty of the felony, and if he was not guilty of the independent felony, participation does not evince “ the evil mind or purpose inherent in the killing.” (See People v. Koerber, 244 N. Y. 147.)

Sometimes a spirit of innocent mischief, sometimes evil associations, not of his own choice but forced upon him by family conditions, impel a child under the age of sixteen to commit acts which constitute felonies as defined by law. The State has adopted a humane policy in its treatment of a child under the age of sixteen who commits such acts. It does not, upon proof of guilt, fasten upon him the ineffaceable stain of conviction of guilt of a felony, nor subject him to imprisonment with adult offenders. For the child’s benefit, as well as for the benefit of the State, it treats a child who commits acts which, if committed by an adult would constitute a felony, not punishable by death or life imprisonment, merely as a juvenile delinquent, an unfortunate ward of the State rather than a criminal. The law, in its mercy, demands that a child should be subject to such correction as may tend to remove the causes which have led the child to commit acts inimical to society; where it might demand that an adult committing the same acts should be visited with punishment of deterrent effect.

Doubtless at times the causes which have led a child into juvenile delinquency ” are too deep-seated to be removed by such corrective treatment as the State now offers. Perhaps at times innate depravity ” is more than a fiction. The Penal Law is not concerned with such abstractions. It decrees that the acts of a child shall, in all cases other than acts constituting a felony punishable by death or life imprisonment, be treated as if done without the evil mind ” which characterizes felonious intent, and each child must be given the opportunity to benefit by corrective treatment though he be unable or unwilling to avail himself of the benefit. The law does not say that a criminal under the age of sixteen is not subject to punishment for a crime; it says that proof of acts which would establish guilt of crime if committed by an older person does not establish the guilt of a child under the age of sixteen years, of any crime, but only of juvenile delinquency.

These considerations must lead to a reversal in this case. The defendant can be convicted of murder in the first degree only upon a finding of “ felonious intent.” The verdict of the jury imports a finding that the defendant participated in the commission of a robbery, as defined by the statute, for the trial'judge charged that without such finding the verdict must be not guilty. Upon the trial of a defendant over the age of sixteen years a finding of participation in a robbery, as defined by the statute, would import a finding of felonious intent;” for robbery, in every degree, is a felony. Upon the trial of a child under the age of sixteen, the participation of á child in a robbery, or at least in a robbery in the second or third degrees, would not establish the guilt of a felony, but only of a minor offense characterized as juvenile delinquency. Hence, it is plain that the defendant’s conviction rests upon no finding of guilt of a felony and thus no finding of felonious intent, and the judgment must be reversed. (People v. Moran, supra.) That is true even though no exception was taken to the charge which raises such question. A child under sixteen can be guilty of murder in the first or second degrees where he kills a man with felonious intent, but such felonious intent is not established without both proof and finding of intent to kill or of guilt of an independent felony during which the homicide occurred.

The question of whether the defendant’s participation in a robbery in the first degree might establish guilt of a felony is not now presented; for the trial judge charged the jury that they were not concerned with degrees of robbery, since robbery in every degree is a felony. It might arise upon a new trial. At the time of the homicide and of the trial, robbery in the first degree and burglary in the first degree were punishable by imprisonment for not less than a specified term of years, and no limit of the duration of the punishment was declared in the statute. In such case the court authorized to pronounce judgment upon conviction may, in its discretion, sentence the offender to imprisonment during his natural life, or for any number of years not less than the amount prescribed.” (Penal Law, § 2191.) Perhaps crimes punishable by death or life imprisonment,” as those words are used in section 2186 of the Penal Law, applying to juvenile offenders, include any crime where a judge authorized to pronounce sentence may in his discretion sentence the offender to imprisonment for life. Doubtless similar words in other sections of the Penal Law were used by the Legislature with that intention. We do not now decide whether considerations of public policy and complications arising from the fact that upon a trial for burglary or robbery in the first degree a jury may convict of a lesser degree of crime, punishable only by imprisonment for a limited term, and constituting crimes of which a child cannot be guilty, might dictate a different construction of those words as used in section 2186. That question has now become academic, for by chapter 275 of the Laws of 1932, amending Penal Law, sections 407, 2125, a “ limit of the duration of imprisonment is declared ” in the punishment for burglary or robbery in the first degree.

Thus at the present time, even if not at the time of the original trial, proof that a child under the age of sixteen years participated in a robbery in the first degree cannot establish the child’s guilt of a felony. Change in the punishment for that crime has the indirect result of removing the crime of robbery in the first degree from the category of crimes of which a child can be guilty if it ever was within that category. The effect is the same as if the Legislature had expressly declared that no child under the age of sixteen years can be guilty of robbery in any degree, and that upon the trial of such child for murder in the first degree, felonious intent ” may not be predicated upon guilt of robbery. In the absence of a clause excluding from its provisions offenses previously committed, the law as amended applies in all trials held thereafter, even for offenses previously committed. (Cf. Hartung v. People, 22 N. Y. 95; same case, 26 N. Y. 167, and 28 N. Y. 400.)

Upon the new trial this defendant, may be tried for murder in the first or second degrees committed through the killing of a human being with intent to effect his death. Such an action may be impelled by evil mind ” and felonious intent as evidenced by the criminal acts of the child, but not by acts which the Legislature has declared are not criminal when committed by a child. A person who with evil mind commits a crime may, in the interests of society, be punished even by death for the undesigned and unforeseen result of the crime. No person, certainly no child under the age of sixteen, is subject to death or life imprisonment because of the calamitous though undesigned result of acts which are not criminal in their inception.

The judgment of conviction should be reversed and a new trial ordered. (See 259 N. Y. 635.)

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

Judgment reversed, etc.