text:
    Norwegian Evangelical Free Church, Respondent, v. Michael Milhauser, Appellant.

      (Argued October 18, 1929;
    decided November 19, 1929.)

      John J. McManus for appellant.
    The title to the premises in question and the title of the defendant thereto is good and marketable. (Matter of People [Melrose Ave.], 234 N. Y. 48; Ruff v. Gerhardt, 73 App. Div. 245; Greenblatt v. Hermann, 144 N. Y. 13; Ferry v. Sampson, 112 N. Y. 415; Cambrelling v. Purton, 125 N. Y. 610; Hamershlag v. Duryea, 58 App. Div. 288; 172 N. Y. 622; Matter of Clarke, 131 App. Div. 688; Ettenheimer v. Heffernan, 66 Barb. 374; Luhns v. Eimer, 80 N. Y. 171; Baker v. Oakwood, 123 N. Y. 16; Wanser v. De Nyse, 125 App. Div. 209; 192 N. Y. 537.)

      Rosalie Ulrich and Milton M. Eisenberg for respondent.
    The People of the State of New York did not acquire title through adverse possession and held the property subject to the rights of lawful heirs. (Civ. Prac. Act, §§ 37, 38.) A purchaser of property is entitled to a clear and marketable title. (Fleming v. Burnham, 100 N. Y. 1; Moore v. Williams, 115 N. Y. 586; Vought v. Williams, 120 N. Y. 253; McPherson v. Schade, 149 N. Y. 16; Brokaw v. Duffy, 165 N. Y. 391; Kilpatrick v. Barron, 125 N. Y. 751.)
   Cardozo, Ch. J.

The action is by a vendee to recover his down payment and expenses on the ground that the vendor is unable to tender a marketable title.

William A. Kinnilly died seized of this property in April, 1868. He was born in England, and there is no evidence that he had ceased to be an alien at the time of his death. His will devised his residuary estate, including the land in suit, to trustees for charitable uses. By a judgment of the Supreme Court, entered in December, 1870, the trusts were declared void; there was a declaration that the testator, according to the evidence then appearing, had not left any heirs capable of inheriting his estate; and this was followed by an adjudication that title to the property had passed to the People of the State of New York, subject to the claims and rights of any lawful heirs or next of kin of said deceased who may be hereafter discovered or appear.” A receiver was appointed to collect the rents and profits until the executors had accounted. At the close of the accounting there was a decree discharging the receiver, and directing the delivery of possession to the Commissioners of the Land Office, or their authorized. agent, as the representatives of the State, and possession was so delivered in December, 1873.

In the suit to determine the validity of the charitable trusts, it was shown that by advertisement and otherwise the executors had made diligent inquiry for heirs and next of kin, and that numerous persons had submitted claims. These claims were litigated by proceedings at the foot of the decree and adjudged to be without foundation. In 1882 the same claimants and others were permitted to reopen the proceedings; and thereafter, in 1892, judgment was entered dismissing their several claims, and adjudging once again that the title was in the State. Other proceedings begun about the same time and after-wards (cf. Aalholm v. People, 211 N. Y. 406) were litigated with the same result.

In January, 1911, by letters patent duly executed, the Commissioners of the Land Office conveyed the interest of the State in the real property in question to Mary F. Milhauser, who in turn conveyed to the defendant. An action was begun by her in 1911 under the provisions of the Torrens Act to register her title, in which the unknown heirs, if any, of William A. Klnnilly were joined as defendants (Real Prop. Law [Cons. Laws, ch. 50], art. 12). In that action, one Mary Byrne, formerly Mary Kinneally, appeared by attorney in August, 1911, and claimed to be an heir, though in the earlier litigation the claim of Mary Kinneally had been considered and dismissed. The Torrens suit was allowed to lapse and an order discontinuing it was entered in 1925, but without notice to Mary Byrne, who could not be found, and whose attorney was then dead.

The contract of sale between the plaintiff as vendee and the defendant Milhauser' as vendor was made in October, 1923. The trial judge by a decision in December, 1926, held the title to be marketable, and dismissed the complaint. The Appellate Division reversed and gave judgment for the plaintiff.

Sixty-one years and more have passed since the death of William A. Klnnilly in April, 1868. No heirs have yet been found. Such claimants as have appeared, with the possible exception of Mary Byrne, have been found to be impostors. The record now before us is too fragmentary to enable us to say.with certainty that the judgment is conclusive upon all of them within the doctrine of res judicata. Even so, the many years that have passed without revival of the claims, the long and unbroken silence and acquiescence, have cut the heart out of the possibility of renewal, and robbed it of its reality as a menace to the peace and quiet of a purchaser. The claim of Mary Byrne, who was formerly Mary Kinneally, is indeed of later date, but even she has slept upon her rights since 1911, when she served her answer in the suit to register the title. Identity of name, moreover, raises a presumption that she is the same Mary Kinneally who asserted her kinship nearly forty years ago, and was then barred from the share that she was claiming as her own.

We think the chance that there is' a lawful hteir of William A. Kinnilly capable of inheriting under the law governing inheritance as it stood in 1868 and capable to-day of making proof of his kinship, has become after all these years and all these repeated inquisitions a mere possibility, which ought no longer to impose a cloud upon the title. The law assures to a buyer a title free from reasonable doubt, but not from every doubt (Crocker Point Assn. v. Gouraud, 224 N. Y. 343; Goldberg v. McCord, 251 N. Y. 28). If “ the only defect in the title ” is “ a very remote and improbable contingency,” a “ slender possibility only,” a conveyance will be decreed (Cambrelleng v. Purton, 125 N. Y. 610, 616; Ferry v. Sampson, 112 N. Y. 415, 418; Greenblatt v. Hermann, 144 N. Y. 13, 20). The rule has been applied in situations closely parallel to the one before us now. Thus, in Matter of the Trustees of the Protestant Episcopal Public School (31 N. Y. 574) a statute authorized a sale of a testator’s land, but excepted from the conveyance the reversionary interest of his heirs, if any there were found to be. Because of the possible existence of such heirs, the purchasers were unwilling to complete the purchase. This court recognized the possibility, though about sixty years had gone by, but overruled the purchasers’ objection. “ The existence of heirs is so improbable that it is not to be considered as prejudicing the title ” (p. 588). So, in Ferry v. Sampson (supra) a title was held marketable where a former owner had been absent and unheard of for forty years, though the possibility remained that he was still alive. “ The rule is not absolute that a disputable fact, not determined by the judgment, is in every case a bar to the enforcement of the sale. It depends in some degree on discretion ” (p. 418). A like principle was applied in Greenblatt v. Hermann (supra). “It is a possibility merely; that * * * heirs may exist ” (p. 20). The cross-demand set up by Mary Byrne in the suit to register the title is now too stale, after all these years of abandonment, to prove without more, as a matter of “ reasonable decent, probability ” (Alderson, B., in Cattell v. Corrall, 4 Y. & C. Ex. 228, 237; Fry Spec. Perf. § 890) that a buyer upon taking title will find himself involved, either presently or hereafter, in the toils of litigation (Simon v. Vanderveer, 155 N. Y. 377, 382; Hayes v. Nourse, 114 N. Y. 595; Alpern v. Farrell, 133 App. Div. 278).

There is in all such controversies a penumbra where rigid formulas must fail. No test more definite can then be found than the discretion of the court, “ to be carefully and guardedly exercised ” (Ferry v. Sampson, supra) in furtherance of justice. In the exercise of that discretion, we declare this title marketable; the doubt too unsubstantial to place the purchaser in peril.

The judgment of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in the Appellate Division and in this court.

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

Judgment accordingly.


source: Caselaw Access Project

author: Kellogg, J.

license: Public Domain

text:
    Fernando G. Chiapparelli, Respondent, v. Baker, Kellogg & Company, Inc., Appellant.

      (Argued October 21, 1929;
    decided November 19, 1929.)

      Harold H. Corbin and Edward J. Bennett for appellant.
    The minds of the parties never met upon any contract. There was, at best, only a conditional offer of the plaintiff’s services in conducting negotiations which, owing to the failure of the conditions, never became an actual offer and which was, in any event, never accepted. (Pomeroy v. Newell, 117 App. Div. 800; Heller v. Pope, 250 N. Y. 132; Arliss v. Brenon Film Corp., 230 N. Y. 390; Petze v. Morse Dry Dock & Repair Co., 125 App. Div. 267; Mandell v. Guardian Holding Co., Inc., 200 App. Div. 767; Fowler v. Hoschke, 53 App. Div. 327; Meltzer v. Flying Fan, Inc., 224 App. Div. 41; McVickar v. Roche, 74 App. Div. 397.)

      Samuel C. Steinhardt and Walter S. Newhouse for respondent.
   Kellogg, J.

The plaintiff, Fernando Chiapparelli, was a member of an Italian mission sent to the United States in the year 1915. He represented the Italian government in this country from the year 1915 to the year 1919 and was in charge of the financial department of the mission. His official duties brought him into contact with many important New York banking houses. In the year 1924 he was employed by the banking house of F. J. Lisman & Company to procure for them the financing of foreign loans. In the service of that company he was sent to Austria in 1924, where he spent the months of September and October. In Vienna he met a Dr. Rintelen, who was the Governor of Styria, one of the nine provinces of the Republic of Austria. Rintelen was interested in obtaining a loan of five million dollars for his province. On his suggestion, Chiapparelli visited Styria. At Graz, the capital of Styria, he procured written data concerning the resources of the province, and obtained from the provincial government options for Lisman & Company to make to Styria a loan of four million or five million dollars, and take over the bonds of the province at a stated figure. On Chiapparelli’s return to New York, Lisman & Company determined not to take on the loan. Chiapparelli left their service and attempted to interest other banking houses in the loan to Styria. Mr. Owen, of Hornblower, Miller & Garrison, general counsel for the defendant herein, introduced Chiapparelli to two responsible New York houses, but they proved not to be interested in the matter. At this time the Styrian options had long since expired. Nevertheless, Chiapparelli retained confidence in his ability to reinstate himself with the government officers of Styria so that he might have the financing of the loan on favorable terms. He says: “I could provide the business any time I could find a banking house ready to do it.” He told Mr. Owen that, although the Styrian option had expired, He felt that his relations with Governor Rintelen were such that he could get it restored if he had a banking house actually prepared to take the contract.” In July, 1925, Chiapparelli was introduced to Mr. Bromley, the vice-president of the banking house of Baker, Kellogg & Company, Inc., the defendant herein.

Baker, Kellogg & Company, Inc., had already become interested in Styrian loans. At this time they had under negotiation a loan of five million dollars to a Styrian hydro-electric company, known as “ Stewag,” to be guaranteed by the Styrian government. That the various provinces of the Republic of Austria were sadly in need of financing was commonly known to New York bankers. On June 15th a meeting of bankers, including a representative of the defendant, occurred, at which loans to the various Austrian provinces, including Styria, were discussed. It was recommended at the meeting that all loans to the separate provinces be held in abeyance, pending an arrangement whereby a joint loan to all the provinces might be negotiated. A representative of Baker, Kellogg & Company had already visited Styria where he had discussed with Governor Rintelen, not only the loan to Stewag, but to the province of Styria itself.

On June 21, 1925, Bromley called upon Chiapparelli to see if he could be of assistance to the defendant in procuring, through his influence with Governor Rintelen, a governmental guaranty of the proposed Stewag loan. Chiapparelli told him that this would be impossible until a loan to the province of Styria itself had been arranged. Of this fact the defendant was already cognizant. Chiapparelli then attempted to interest Bromley in the provincial loan itself. Bromley said that the matter might prove interesting and asked Chiapparelli to bring his data to the office and talk with Mr. Luitweiler, the president of the defendant.

On the 25th day of .June Chiapparelli and Luitweiler met in the latter’s office. The opening words of their conversation are significant. Chiapparelli spoke to Luitweiler as follows: “ I would not be interested in telling to the Government of Styria about this provincial loan unless I was sure that his [Luitweiler’s] house was seriously interested.” Luitweiller then spoke as follows: “ He asked me if I could assist him in securing this loan and support his desire for this loan with the Governor Rintelen.” Chiapparelli told Luitweiler that he had with him all the data, which he had collected for Lisman & Company, to start the foundation of the business and to find out whether the business would be possible or not. Luitweiler said that “ it would be interesting to send a telegram to the Governor Rintelen; that he would see if I could go there and negotiate for them the deal, if they would decide to do it.” Chiapparelli said: “ What would be my compensation if the business will be arranged? ” Luitweiler said: “ How much would you want? ” Chiapparelli replied that he would be satisfied if he had one per cent commission on the face value of the loan when it was completed.” .To this Luitweiler answered, Satisfactory.” Chiapparelli said he would turn over all the papers, in reference to the loan, which he had gathered for Lisman & Company, and, taking them from his brief case, handed them to Luitweiler.■

After the conversation had with Luitweiler, the defendant delayed for nearly a month to notify Chiapparelli whether it was or was not interested in the Styrian loan. Chiapparelli, growing impatient at the delay, on July 22d, 1925, wrote the defendant as follows: Gentlemen: I assume that you are not interested in the loans for the Province of Styria, which was the object of several conferences between your good selves and me the early part of June. As I am leaving for Europe next Saturday, kindly return to me the official papers and data pertaining to the abovementioned loan, which were left in your office at the request of Mr. J. C.. Luitweiler. To avoid delay, I will appreciate it if you will address the papers to me, and deliver same to Mr. Owen’s office.” Complying with the request thus made, the defendant at once returned the papers to Chiapparelli which he had left with Luitweiler.

In January or February, 1926, the defendant negotiated a loan of five million dollars to the Province of Styria. The plaintiff claimed that he was entitled, ’ under the terms of an agreement alleged to have been made with the defendant on June 25, 1925, to a commission of one per cent upon the amount loaned, or $50,000. A verdict in his favor for that amount, with $9,000 added for interest, was returned by a jury, and a judgment therefor, entered upon the verdict, has been affirmed by the Appellate Division.

A familiar rule of law has been expressed by Professor Williston in the following terms: “ Since an offer must be a promise a mere expression of intention or general willingness to do something on the happening of a particular event or in return for something to be received does not amount to an offer.” (Williston on Contracts, § 26.) It is, also, said by Professor Williston: “ Frequently negotiations for a contract are begun between parties by general expressions of willingness to enter into a bargain upon stated terms and yet the natural construction of the words and conduct of the parties is rather that they are inviting offers, or suggesting the- terms of a possible future bargain than making positive offers.” (§ 27.)

We think that neither Chiapparelli nor Luitweiler, in the conversation of June 25, 1925, indicated by their words any intention presently to make a bargain either absolute or conditional. Chiapparelli opened the conversation by stating that he would not be interested in talking to the Governor of Styria about the loan unless he was sure that Baker, Kellogg & Company, Inc., represented by Luitweiler, “ was seriously interested.” Luitweiler said that “ he would see if ” Chiapparelli “ could go there and negotiate for them the deal, if they would decide to do it.” On cross-examination Chiapparelli said of this conversation: “ I told Mr. Luitweiler that I had all the papers completed to give him the possibility of starting the loan, and decide to do it or not.” Again, when asked, “ As a matter of fact, Captain, you were told by Mr. Luitweiler, that if they considered the subject- sufficiently interesting to go into it, that they would let you know,” he answered, Yes.” Luitweiler says of the conversation with Chiapparelli: “ I asked him at that time whether he desired to take up such matter again. He said: ' No, I do not, until such time as a banking house makes a firm offer for the business.’ I should explain by that that the banking house says in advance: 1 We will take this loan.’ And he said: 1 If you, Baker, Kellogg & Company, will say: ‘ Yes, we will take this loan,’ then I will agree to negotiate it for you.” That Chiapparelli made these statements to Luitweiler is not denied by him. Neither are the statements inconsistent with the testimony of Chiapparelli.in reference to the conversation. We think it entirely clear that the negotiations did not pass the invitation stage; that they were wholly tentative; that Chiapparelli never bound himself, even conditionally, to carry on negotiations for a loan with the officers of the Styrian government; that he reserved the right to make a decision until he could sense, from future expressions made by Baker, Kellogg & Company, Inc., how deep an interest in the. proposed loan was taken by it; that Luitweiler never obligated his company to employ Chiapparelli either absolutely or conditionally; that the matter of the employment of Chiapparelli, as well as the assumption of the Styrian loan, was reserved by him for future consideration by his company.

If we assume, however, that Luitweiler, acting for the defendant, promised a commission to Chiapparelli, on condition that the defendant determined to take on the Styrian loan, even then we cannot perceive that the promise ever emerged from the offer stage to become and remain a binding obligation.

It is suggested that the delivery by Chiapparelli to Luitweiler of the documents, referred to in the conversation between them, was the consideration given by the former for the promise made by the latter, and that a unilateral contract was thereby formed. The papers delivered consisted of the options granted by the Province of Styria to Lisman & Company, which had expired; various documents containing statistics as to the natural resources of the province, all of which were procurable for the asking at the governmental offices of Styria; a copy of a resolution of the provincial government refusing to guarantee a loan to Stewag; a copy of a letter from Governor Rintelen inviting Chiapparelli to Graz to discuss the foreign loan;, and a tourists’ guide to Styria showing many picturesque scenes. No information of a personal or confidential nature was contained in the documents. Nothing was shown which might not have been, upon request, made known to the entire world. The documents had value, therefore, not for the purpose of effectuating a loan to Styria, but only for the purpose of enabling a banker, to whom they might be exhibited, promptly to form an impression that he might or might not become interested in giving consideration to the loan. Chiapparelli himself says this. He was asked: “ You feared that they might use them to close this loan themselves?” He answered, “ Oh, no.” Again, he was asked: “ You didn’t? ” He answered: “No; these papers would not answer to close the deal. Those papers were given to the bank for an opinion of the loan. They had gotten the opinion already.” In view of the nature of the papers and the purpose of their delivery to Luitweiler, as expressed by Chiapparelli himself, the suggestion made that their delivery to Luitweiler for the defendant constituted a consideration for the promise said to have been made, seems entirely vain, and may not be accepted.

We think it clear from the proof that, assuming a present promise was in fact made by the defendant, that promise was offered in exchange either for (1) services to be performed by Chiapparelli in negotiating the loan, or (2) for his contemporaneous promise to perform such services.. Thus Chiapparelli stated, as we have noted, that Luitweiler asked him if he “ could assist him in securing this loan; ” he would see if I could go there and negotiate for them the deal.” In answer to the question, And what is it that you say you were to do? ” Chiapparelli said, Help them in negotiating this loan in Austria, if they were going to send me there, and get in touch immediately with the Governor of Styria in order to smooth over the difficulties, whatever they were, if there were any at that time.” Again, he said that the defendant was to use me as negotiator, if they were going ahead and close the deal.” Once more, he said that Luitweiler stated that he would Possibly send me there to negotiate for the firm.” Granted that the consideration for the alleged promise to be furnished by Chiapparelli was either the one or the other of the two alternatives stated, it is self-evident that the consideration, named in the first alternative, never gave rise to a binding promise on the part of the defendant. Chiapparelli, it is conceded, performed no services whatsoever in negotiating the Styrian loan for the defendant. Consequently, no act was done by him in exchange for the alleged promise, and, therefore, no unilateral contract ever arose. It remains to be considered whether a promise by Chiapparelli to perform the services, the second alternative mentioned, constituted a consideration which made binding the alleged promise of the defendant.

Where a promisor retains an unlimited right to decide later the nature or extent of his performance, the promise is too indefinite for legal enforcement. The unlimited choice in effect destroys the promise and makes it merely illusory. (Williston on Contracts, § 43.) If definite

enough to be interpreted plainly, but giving the promisor an unlimited option, such a promise may be assented to by the parties but will not serve as consideration for a counter promise.” (Id.) We may pass the question whether the alleged promise of the defendant to pay for Chiapparelh’s services, made on the express condition that the defendant might subsequently decide to take on the Styrian loan, involved an unlimited option to become bound to Chiapparelli, or not to become bound, as the promisor might choose, and, therefore, was illusory. Doubtless, if the promise was not withdrawn, and the event occurred, viz., the making of a determination favorable to the loan, the continuing offers of the parties might have ripened into enforcible obligations. However, it may be doubted whether, pending the decision to be made, Chiapparelli’s promise to perform the services ever became a binding obligation. The only consideration therefor would have been the defendant’s promise to employ Chiapparelli, in case the defendant chose to negotiate for the loan. This was an event, the happening of which was entirely at the defendant’s command. In effect, the defendant had said to Chiapparelli, “ I will use your services, and make payments therefor if I choose to use and pay for them.” Assuming that such was the character of the defendant’s promise, then the promise of Chiapparelli, being unsupported by a valuable consideration, was a mere offer revocable at will. In any event, it was clearly an implied term of the agreement, if one there was, that the defendant should render its decision within a reasonable time. If it was not so rendered, Chiapparelli was entitled to withdraw from the bargain made. Chiapparelli waited for thirty days. He then wrote the defendant, as we have noted, that he assumed that the defendant was not interested in the Styrian loan, and demanded that it return to him the documents which he had delivered to Luitweiler. The letter manifested an election on Chiapparelli’s part to declare that, owing to the unreasonable delay of the defendant, he withdrew his offer to perform the services. The defendant acquiesced in the election and withdrawal by returning the papers to Chiapparelli as requested. Certainly, if Chiapparelli was no longer bound to the defendant by his promise, as we think must be clear, the defendant was no longer bound to Chiapparelli by its promise. Indeed, if ever there had been a contract, it had thus been abrogated by the acts of both the parties thereto.

For all these reasons we think that the plaintiff failed to establish a cause of action in contract against the defendant.

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

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

Judgments reversed, etc.


text:
    George McLoughlin, Appellant, v. The New York Edison Company, Respondent.

      (Submitted October 7, 1929;
    decided November 19, 1929.)

      Harold R. Medina, Rufus C. Van Aken and Charles Eno for appellant.
    Plaintiff was falsely arrested and imprisoned by defendant’s employees. (Gearity v. Strasbourger, 133 App. Div. 701; Johnson v. Bruckheimer, 133 App. Div. 649; Parke v. Fellman, 145 App. Div. 836; Limbeck v. Gerry, 15 Misc. Rep. 663; Stevens v. O’ Neill, 51 App. Div. 364; 169 N. Y. 375; Gold v. Bissell, 1 Wend. 210; Searls v. Viets, 2 Thompson & C. 224; Callahan v. Searles, 78 Hun, 238; Comer v. Knowles, 17 Kan. 436; Snead v. Bonnoil, 49 App. Div. 330; 166 N. Y. 325.) Defendant was responsible for the false arrest and imprisonment of plaintiff by its employees. (Mott v. Consumers Ice Co., 73 N. Y. 543; Herrman v. New York Edison Co., 175 App. Div. 535; Muller v. Hillenbrand, 179 App. Div. 831; Rown v. Christopher & Tenth St. R. R. Co., 34 Hun, 471; Ochsenbein v. Shapley, 85 N. Y. 214; Cosgrove v. Ogden, 49 N. Y. 255; Burns v. Glens Falls R. R. Co., 4 App. Div. 426; Veneruso v. Spear & Co., 160 App. Div. 629; 220 N. Y. 694; Tyson v. Bauland Co., 68 App. Div. 310.)

      Charles I. Taylor and Thomas H. Beardsley for respondent.
    The complaint was properly dismissed for failure to prove that defendant’s employee, assuming that he arrested plaintiff, did so within the scope of his employment. (Penny v. N. Y. Central & H. R. R. R. Co., 34 App. Div. 10; Code Crim. Proc. § 183; Burns v. Erben,40 N. Y. 463; Davis v. Green, 260 U. S. 349; Muller v. Hillenbrand, 227 N. Y. 448; Hyatt v. New York Central & H. R. R. R. Co., 162 App. Div. 367; Mali v. Lord, 39 N. Y. 381; Mott v. Consumers Ice Co., 73 N. Y. 543; Mulligan v. N. Y. & R. B. R. Co., 129 N. Y. 506; Hameyer v. Yaverbaum, 197 App. Div. 184; Meehan v. Morewood, 52 Hun, 566; 120 N. Y. 467; Murphy v. Newhall Co,, 151 App. Div. 520; McGrath v. Michaels, 80 App. Div. 458.)
   Kellogg, J.

A customer complained to the defendant that one of its employees, while visiting her apartment to perform a service for the defendant, had stolen a valuable ring therefrom. The plaintiff, who proved to be the employee who had made the visit, was interviewed by two men, Hatch and Donovan, who were employed in the special service department of the defendant. According to the story told by the plaintiff, Hatch laid his hand upon the plaintiff’s shoulder stating that a ring had been stolen from the apartment of a customer and saying come on with us.” The plaintiff asked why he should go. Thereupon Hatch said, You stole one of those rings and you are under arrest.” The plaintiff was then taken to a police station by the two men. Hatch told him that he was under arrest and must remain in the station house. He stayed there from ten in the morning until five in the afternoon. At noon he started to go out for lunch but was told by an officer that he could not go since he was “ under arrest.” At five o’clock the plaintiff was identified by the defendant’s customer as the employee who had visited her apartment. He was compelled to remain over night in a station house. Several days later, after a complaint had been filed, the customer appeared in court, stated that she had found the ring, and that no theft had been perpetrated. Accordingly, the complaint against the plaintiff was dismissed.

It is immaterial that Hatch and Donovan, the defendant’s servants, employed no physical force against the body of the plaintiff to restrain him. It is enough that, when force sufficient to dominate the situation was displayed, the plaintiff yielded submission and journeyed peaceably, though under compulsion, to the police station. (Stevens v. O’ Neill, 51 App. Div. 364; 169 N. Y. 375.) It is clear, also, that the arrest and imprisonment, if made, were without justification. Private persons may not make an arrest except for a crime committed in their presence, or for a felony which has been committed although not in their presence. (Code Crim. Proc. § 183.) Where the detention is illegal an action for false imprisonment will he, without regard to the innocence of the defendant in respect to his intentions. (Snead v. Bonnoil, 166 N. Y. 325.) “ It follows that a cause of action for false imprisonment accrues whenever a person is arrested and detained by one not an officer, acting without a warrant, when no crime has in fact been committed by him, no matter with what good faith the party who caused the arrest acted.” (Johnston v. Bruckheimer, 133 App. Div. 649, at p. 652.) Hatch and Donovan were private persons; they made an arrest without a warrant for a felony which had never been committed. Consequently, they were guilty of a false imprisonment. The only debatable question relates to the liability of the defendant, their employer, for the tort which, if the plaintiff spoke the truth, they unquestionably committed.

“It is not the test of the master’s liability for the wrongful act of the servant, from which injury to a third person has resulted, that he expressly authorized the particular act and conduct which occasioned it. In most cases where the master has been held hable for the negligent or tortious act of the servant, the servant acted not only without express authority to do the wrong, but in violation of his duty to the master.” (Per Andrews, J., in Rounds v. Del., L. & W. R. R. Co., 64 N. Y. 129, at p. 134.) Where the accomplishment of a given task is committed to a servant, and its performance involves the exercise of discretion and judgment concerning the means to be employed, the master may be responsible although the servant has abused his authority and been guilty of a wrong in executing his commission. (Same case.) The master is liable when the act is done “ in the prosecution of the business that the servant was employed by the master to do ” (Cosgrove v. Ogden, 49 N. Y. 255); when it is done while the servant is engaged in his master’s business “ with a view to the furtherance of that business and the master’s interest ” (Mott v. Consumers’ Ice Co., 73 N. Y. 543); when the wrongful act is in the course of employment and not outside of it and to accomplish a purpose foreign to it.” (Ochsenbein v. Shapley, 85 N. Y. 214.)

The bureau of special service, to which Hatch and Donovan were attached, is a department maintained by the defendant for the purpose of investigating all accident cases and all criminal complaints. We take it that if articles of value are abstracted from some dwelling house or apartment, one of the countless homes served by the defendant with light or power, and a visiting employee of the defendant is accused of the theft, the matter is referred to the bureau of special service for investigation. For what purpose is the investigation conducted? Undoubtedly, so that on the one hand the stolen articles may be recovered and the customer appeased by their return, and upon the other that the thief may be taken and punished, for an example to other employees and for the purification of the defendant’s service. It may be inferred that the defendant itself would desire the achievement of these results. It may be inferred that the bureau of investigation was commissioned to achieve them. In the particular instance of this alleged theft, the matter of investigation was referred to Hatch and Donovan. They were ex-policemen. It was their custom to take all accused employees to the complaining customers, so that accuser and accused would meet face to face, and they might thresh ” out the matter. It was their duty to “ straighten ■” out all such matters. The inference lies that Hatch and Donovan were commissioned to perform such acts as might lead to the recovery of the articles stolen and the apprehension and conviction of the detected thief. If, in the course of their activities to accomplish this result, Hatch and Donovan subjected this plaintiff to an arrest, we think it might justly be inferred that they were acting in the prosecution of the business ” of their master with a “ view to the furtherance ” thereof and not to accomplish a purpose foreign to it.”

The case of Craven v. Bloomingdale (171 N. Y. 439) furnishes strong support to the plaintiff’s claim. In that case the driver of a delivery wagon was required to collect all charges due his employer for goods which he delivered. Merchandise had been delivered to the plaintiff and been returned as unsatisfactory. Merchandise to replace it was intrusted to the driver to deliver and make collections. Through some mistake the bill for the goods itemized the charge at full value without deductions for the payments made upon the prior delivery. The driver, having delivered the goods, insisted upon payment of the bill in full, or the return of the merchandise, and the plaintiff refused so to pay or make return. The driver called a policeman who arrested the plaintiff and took him to a police station where he was discharged. It was held that the employer of the driver might be held hable for his act in causing the arrest. There the servant, employed to make collections, may have been acting" within the scope of his employment when he caused the plaintiff to be arrested for the non-payment of an alleged debt, or the return of goods conditionally delivered. Here, criminal investigators, employed to investigate a felonious charge against the plaintiff, caused the plaintiff to be arrested for the commission of the felony. Surely, if the driver in Graven v. Bloomingdale may have been acting within the scope of his authority, the investigators in this case may well have been within their authority when they arrested the plaintiff.

' We think that there was presented for the determination of a jury the question of fact whether the plaintiff was arrested by the servants of the defendant acting within the general scope of their authority, and that the complaint should not have been dismissed.

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

Pound, Crane, O’Brien and Hubbs, JJ., concur; Cardozo, Ch. J., and Lehman, J., dissent.

Judgment reversed, etc.


author: Cardozo, Ch. J.

text:
    Louise Porret, Respondent, v. The City of New York, Appellant.

      (Argued October 23, 1929;
    decided November 19, 1929.)

      Arthur J. W. Hilly, Corporation Counsel (Vine H. Smith, Charles C. Marrin and J. Joseph Lilly of counsel), for appellant.
    There was no basis for the entry of judgment in favor of plaintiff, because the so-called verdict, constituting the only foundation for the judgment, was irregular and unauthorized and was rendered after the trial had already resulted in a mistrial which the court erroneously failed to recognize. (Anderson v. Illinois Surety Co., 157 App. Div. 691.) The court’s instructions in resubmitting the case to the jury were erroneous in that they permitted, and tended to coerce, the jury to render a compromise verdict. (Zeilian v. Beggs & Co., 153 App. Div. 687; Wiegand v. Fee Bros. Co., 73 App. Div. 141; Baum v. Halperin, 169 N. Y. Supp. 489; Maltz v. N. Y. Butchers Dressed Meat Co., 198 N. Y. Supp. 222; Sohlman v. Cluny Art, etc., Co., 129 N. Y. Supp. 106; People v. Sheldon, 156 N. Y. 268; Hagen v.
      N. Y. C. & H. R. R. R. Co., 79 App. Div. 519; Twiss v. L. V. R. Co., 61 App. Div. 286; McCarthy v. Odell, 202 App. Div. 784; Levinson v. Zipkin, 65 Misc. Rep. 203.)

      M. A. Willment for respondent.
    The verdict was not irregular, was not a compromise verdict, nor was it a coerced verdict. (Warner v. N. Y. C. & H. R. R. R. Co., 52 N. Y. 437; Rippley v. Frazer, 69 Misc. Rep. 415; Briggs v. Hilton, 99 N. Y. 531; Hodgkins v. Mead, 119 N. Y. 166; Hatch v. Attrill, 118 N. Y. 383; Blackley v. Sheldon, 7 Johns. 33; Bunn v. Hoyt, 3 Johns. 255; Rosenthal v. Standard Oil Co., 118 Misc. Rep. 249; Salemon v. New York City Ry. Co., 56 Misc. Rep. 502; Rogan v. Mullins, 22 App. Div. 117; Tannenbaum v. Cohen, 100 Misc. Rep. 360; Wands v. City of Schenectady, 171 App. Div. 97.)
   Cardozo, Ch. J.

In an action for personal injuries the trial judge submitted the issues to the jury and ordered a sealed verdict. The next morning the jury - reported through its foreman that there was unanimous agreement that the plaintiff was entitled to recover something, but disagreement as to the amount. The judge refused to accept a verdict in that form, and sent the jury back to consider it again. Before doing this, he ascertained that there was a possibility of agreement if deliberations were resumed. Counsel for the defendant objected to the resubmission, and now insists that it was error.

A jury which has separated after formulating a written verdict and leaving it, sealed, with the clerk or bailiff of the court, is not discharged thereby from the consideration of the cause. It is under a duty to return to the jury box upon the opening of court and report what has been done. It is a jury still, and not an unorganized group of individuals, members of the general panel. The- verdict, if regular in form, and assented to by the jury when read in .open court, will be accepted by the judge and recorded in the minutes. If it is imperfect or incomplete, or if the jury, when polled, are unwilling to assent to it, there may be a direction to retire and consider it again. The powers of trial judges at such times have been stated often before now (Warner v. N. Y. C. R. R. Co., 52 N. Y. 437; Brigg v. Hilton, 99 N. Y. 517, 531; Hatch v. Attrill, 118 N. Y. 383; Hodgkins v. Mead, 119 N. Y. 166; Lobar v. Koplin, 4 N. Y. 547; Bunn v. Hoyt, 3 Johns. 255; Blackley v. Sheldon, 7 Johns. 32; Rogan v. Mullins, 22 App. Div. 117). Good may come, none the less, of stating them again.

We are not to confuse cases where a jury has returned to the box after reporting an irregular verdict with those where it has been discharged altogether and relieved, by the instructions of the judge, of any duty to return. In such circumstances, it has ceased to be a jury, and if its members happen to come together again, they are there as individuals, and no longer as an organized group, an arm or agency of the law. The record does not fairly justify the inference that this jury had reassembled in any such desultory way. It had given what was at least the semblance of a verdict, a semblance which had procured for its members the opportunity to separate, but which left them still charged with a duty to complete what they had done. Function and organization continued unimpaired.

The defendant criticises the charge upon the resubmission of the cause as limiting the jury to the question of damages instead of leaving them free to reconsider the cause in its entirety. We can see in the charge no such limitation of their power. If the fact be otherwise, there was neither request nor exception to indicate the error.

The judgment should be affirmed with costs.

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

Judgment affirmed.


text:
    Michael J. Bosak, Jr., Respondent, v. Morris L. Parrish et al., Individually and as Copartners under the Name of Parrish & Company, Appellants.

      (Argued October 22, 1929;
    decided November 19, 1929.)

      William F. Unger and Daniel J. Colton for appellants.
    Assuming that the plaintiff did inform defendants’ employee that he revoked his authority, the alleged notice, not communicated to the defendants, is, as a matter of law, not binding upon them. (Hermann v. Niagara Fire Ins. Co., 100 N. Y. 411; Healy v. Insurance Co., 50 App. Div. 327; Poel v. Brunswich-Balke-Collender Co., 159 App. Div. 365; Cohen v. Goldstein, 128 N. Y. Supp. 69; Hatch v. Taylor, 10 N. H. 538; Claflin v. Lenheim, 66 N. Y. 301; McConnell v. Hellwig, 190 App. Div. 244; Henry v. Allen, 151 N. Y. 1; Bienenstok v. Ammidown, 155 N. Y. 47; Reeves & Co. v. Lewis, 25 S. D. 44.)

      Edward Ward McMahon for respondent.
    The notice by plaintiff to defendants’ employee of the revocation of the power of attorney was notice to defendants, and the acts of their employee in thereafter trading in the account against the specific instructions of plaintiff and without his authority are binding on defendants and not on plaintiff and plaintiff is, therefore, entitled to repudiate all trades in the account after December 31, 1924, except those that he specifically authorized; and upon the repudiation of those transactions he is entitled to the judgment rendered. (People v. Sugarman, 216 App. Div. 217; Eng. v. Camman, 85 Misc. Rep. 27; McConnell v. Helwig, 190 App. Div. 244; Boyd v. Yerkes, 25 Ill. App. 527; Bank of New Milford v. Town of New Milford, 36 Conn. 93; Deyo
      v. Hudson, 174 App. Div. 746; Birkett v. Postal Telegraph-Cable Co., 107 App. Div. 115; 186 N. Y. 591.) The oral revocation of the power of attorney by plaintiff to defendants’ employee was sufficient. (Frazier v. Cox, [Ky.] 125 S. W. Rep. 148; Randall v. Peerless Motor Car Co., 212 Mass. 352; Glover v. Ames, 8 Fed. Rep. 351; Jacksonville Terminal Co. v. Smith, 64 So. Rep. 354; Copeland v. Mercantile Ins. Co., 6 Pick. [Mass.] 194; Brookshire v. Brookshire, 30 N. C. 74; Bank of United States v. Davis, 2 Hill, 451; Hiern v. Mill, 13 Yes. 120; Warrick v. Warrick, 3 Atk. 294; Mechanics Bank of Alexandria v. Seton, 1 Pet. 309; Sutton v. Dilloye, 3 Barb. 529; Ingalls v. Morgan, 10 N. Y. 178; Myers v. Mutual Life Ins. Co., 99 N. Y. 1,.Cox v. Pearce, 112 N. Y. 637.)
   Cardozo, Ch. J.

The controversy is one between stockbroker and customer.

Plaintiff, the customer, opened an account with the defendants, a firm of stockbrokers, in August, 1924. He came to them through the introduction of a friend who was employed in the defendants’ business. This friend, one Medinger, was what is known as a “ customers’ man,” with duties stated in the findings. These duties were to solicit customers for the defendants, his employers, to receive the orders of such customers for the purchase and sale of stocks, and to place them for execution. He had neither duty nor authority to act as the representative of the firm in making discretionary trades for the benefit of customers. The business of the partnership did not include such operations. If customers desired to confer discretionary authority on Medinger or any one else, there was need of a power of attorney to make the authority effective.

Such a power of attorney the plaintiff signed. Upon opening the account he put his hand to a document conferring upon Medinger full power to buy and sell in his behalf. There is a conflict of testimony as to the circumstances in which this document was signed. The plaintiff says that he signed it upon the representation of the defendants’ manager that it was only a matter of form. The trial judge found, however, that there was neither misrepresentation nor mistake. The defendants are found to have stated that such a discretionary account as the plaintiff desired to open required that the plaintiff give a written power of attorney to Medinger, and that plaintiff lodge such power of attorney with the defendants.” There can be no question under the findings that as long as this power of attorney stood unchanged and unrevoked, the defendants were protected in acting upon orders transmitted to them by Medinger in behalf of his principal, the plaintiff, as upon orders from the plaintiff personally.

Dealings then began with many and varied items. Plaintiff from time to time gave orders of purchase and sale to Medinger which the latter transmitted to the defendants. From time to time there came to the defendants orders which Medinger gave without conferring with his principal, though of this the defendants had no knowledge, nor was there anything on the face of such orders to distinguish them from others. Daily confirmation slips were made out, and also monthly statements of account, but the slips and the statements were handed to Medinger, who accepted delivery as the plaintiff’s representative. The sweeping terms of the power gave notice to the brokers that they might recognize him as attorney in any and all dealings affecting the account. This is what they did. They had no dealings or communications with the customer directly, except at the close of the account to call on him for margin, but acted at all times through his appointed intermediary. There is testimony that now and again the plaintiff made inquiry of Medinger as to the notices and statements, adding that he would like to see them. He was put off with excuses till about the middle of November. He then received a statement for the quarterly period ending November 1, and found several trades which his agent had made without telling him about them. According to his testimony, he notified the agent there and then that these trades were unauthorized and that in future no orders were to be given except with his assent. At the- same time he decided to ratify the transactions and pocket the loss (about $7,000), saying nothing to the defendants to put them on their guard. About the middle of January, 1925, there came another quarterly statement up to the beginning of the year. Again there had been trades upon orders by the agent personally. Again the plaintiff ratified what had been done and pocketed the loss (about $10,000). According to his testimony, however, he notified the agent that “ the thing must not occur again,” and that if any such authority was understood to exist, it was then and there revoked. To the defendants themselves he said not a word.

Another quarterly period went by. In March, 1925, there came from the defendants a demand for additional margin, made necessary by new orders transmitted by the agent without the knowledge of the principal. The plaintiff refused the margin, and called upon the defendants to reinstate his account as of January 1, 1925, with allowance for later trades only when personally authorized. There followed this litigation with judgment for the plaintiff in upwards of $30,000. The trial court ruled that notice of revocation to Medinger was notice to the defendants, and that in accepting orders from him thereafter the defendants acted at their peril. The Appellate Division affirmed by a divided court.

We think the judgment' is at variance with basic principles of agency. The power of attorney was lodged by the plaintiff with his brokers for the very purpose of accrediting the agent thereby appointed as his plenary representative. The brokers could safely act upon the authority thereby conferred until notified by the customer, the signer of the power, that it had been altered or withdrawn (Bradford Co. v. Dunn, 250 N. Y. 461; Claflin v. Lenheim, 66 N. Y. 301; 1 Mechera, Law of Agency, § 623; American Law Institute, Restatement of the Law of Agency, §§ 159, 160, 220, 222). Notice was never given to them unless they are to be charged with notice to Medinger himself, the very agent accredited to them as speaking for the principal. To hold such notice adequate would be to frustrate the purpose of the power. In the argument for the plaintiff, much is made of the fact that Medinger, while representing the plaintiff, was employed by the defendants also. The fact, however, is unimportant unless his employment was of such a nature that acceptance of a notice of revocation might fairly be found to be within the scope of his authority (Title G. & T. Co. v. Pam, 232 N. Y. 441, 453; In re Hampshire Land Co., [1896] 2 Ch. Div. 743; 2 Mechem, Law of Agency, § 1837). When this distinction is observed, such cases as Eng v. Cammann (85 Misc. Rep. 27 [App. Term]); McConnell v. Hellwig (190 App. Div. 244), and Boyd v. Yerkes (25 Ill. App. 527) are seen to be beside the mark. There notice of revocation was given by the customer to an appointee with discretionary authority, who was acting at the same time as the general manager of the branch office where the customer was dealing. The ruling was put upon the ground that notice to such a manager was equivalent to notice to the partners. Here, on the contrary, there is nothing in Medinger’s position as a customers’ man, with the duties already stated, that invested him with authority, actual or apparent, to accept in the firm’s behalf a notice of revocation of a discretionary agency. This becomes the plainer when we ask ourselves what the situation would be if the power of attorney had run to a stranger to the business or to some other employee, and notice had been given to Medinger, and no one else, that the agency was ended. Plainly he would have been without authority as a customers’ man merely, to charge his knowledge to the firm. If he could not accept notice of revocation of the authority of another, still less, as the representative of the firm, could he accept it as to himself. A customers’ man is to transmit those orders and those only to which the customer has assented. A power of attorney in the form adopted by the plaintiff wipes out the requirement of assent, and authorizes the appointee to act of his own motion. The one is a limited agency as the representative of the brokers. The other is a general agency as the representative of the customer, with notice to the brokers that the limitation, otherwise to be heeded, may be ignored as unimportant. To restore the limitation there must be warning to the partners who have shaped their course of dealing in reliance on its absence.

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.

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

Judgments reversed, etc.


text:
    In the Matter of Israel N. Thurman et al., as Executors and Trustees under the Will of David Taylor, Deceased, Respondents. Francis P. Callahan, as Special Guardian for Alexander A. Taylor et al., Respondents; Benjamin Taylor et al., Respondents; Fannie Taylor, Appellant.

      (Argued September 30, 1929;
    decided November 19, 1929.)

      William H. Bisnoff and Samuel Zamzok for appellant.
    The clear and unambiguous provisions of the will and codicil require a holding that it was testator’s intention that his widow should receive fifty dollars per week for her own use as long as the children reside with her and the executors were satisfied that they are receiving proper care and attention. (Matter of Buechner, 226 N. Y. 440; Matter of Rooker, 248 N. Y. 361.) It was the intention of the testator to appoint his widow the testamentary guardian of his children. (Matter of Reynolds, 11 Hun, 41; Hagerly v. Hagerty, 9 Hun, 175.)

      Francis P. Callahan for Alexander A. Taylor et al., respondents.

      Copal Mintz for executors and trustees of David Taylor, deceased, et al., respondents.
    The will does not operate as an appointment or designation of the widow as testamentary guardian of the children. (Colton v. Colton, 127 U. S. 302; Toose v. Whitmore, 82 N. Y. 405.)
   Kellogg, J.

The testator, David Taylor, died in November, 1927, leaving a will executed in February, 1926, and a codicil thereto executed in September, 1927. He left two children, Alexander Arthur Taylor and Beatrice Taylor, born of his first wife, who predeceased him. The testator thereafter married a woman designated in his codicil as Fannie Taylor.” In addition to real estate owned, the testator was possessed of personalty of the value of $175,000.

By his will the testator devised and bequeathed to his executors the residue of his estate, in trust, to invest the same, to receive all income therefrom, and to apply so much of the remainder of said rents, issue, income, interest and profits as my said executors and trustees may deem necessary or proper, to the maintenance, education and support of my beloved children, Alexander Arthur Taylor and Beatrice Taylor, in such proportions as they may deem necessary or proper, the balance to be accumulated until the majority of the older child, whereupon it is to be paid to my said two children in equal proportions.”

By his codicil the testator devised and bequeathed to his wife, Fannie Taylor, the sum of $10,000, his household effects, and certain real estate in Brooklyn, N. Y. He made further provision as follows: “ It is my desire that, until my said wife remarries, she shall be the personal guardian of my children and that she shall receive the sum of fifty ($50) dollars per week for as long a period as she shall act as such guardian and shall support and maintain my children in her own home. I am not directing my executors and trustees in that behalf, however, inasmuch as I desire that these weekly payments should be made only as long as my executors and trustees are satisfied that my children continue to receive proper care and attention.”

We thus have a will providing that the executors should devote so much of the income of a principal sum of at least $175,000, as they might deem necessary and proper, to the maintenance, education and support of my beloved children.” We also have a codicil providing for the payment to the widow, Fannie Taylor, the stepmother of the children, of the sum of $50 per week as long as she might act as guardian, and support and maintain my children in her own home.” As the codicil in no wise revokes the provisions contained in the will for the children’s support, we must strive to make effective, not only the provisions of the codicil in respect thereto, but the provisions of the will as well. We think it can be done by giving to the instruments the following interpretations: The widow and stepmother is to house the children, with suitable conveniences and comforts, in her own home, and is to provide them with suitable nourishment and care. As long as she makes suitable provisions in these respects she is to receive therefor the sum of $50 per week to be expended at her discretion, and is to make no further charge nor to receive further compensation. Disbursements for other needs of the children, such as clothing and schooling, are to be supplied by the trustees at their discretion. These provisions cannot be given full effect unless the wife may of right claim the custody of the children. A surviving parent may, by deed or last will, duly executed, dispose of the custody and tuition of such child during its minority or for any less time, to any person or persons.” (Domestic Relations Law [Cons. Laws, ch. 14], § 81.) We think it was the clear intention of the testator to give to the stepmother the custody of the children, so long as she remained unmarried and complied with the provisions of the codicil as to their support by her. To this extent, the widow became the testamentary guardian of the children.

Tie order should be modified in accordance with this opinion, and, as so modified, affirmed, with costs to all parties payable out of the estate.

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

Ordered accordingly.


text:
    Concetta Varriale, Appellant, v. Brooklyn Edison Company, Inc., Respondent.
    (Submitted October 16, 1929;
    decided November 19, 1929.)

      William D. Farrington and Thomas F. Hickey for appellant.
    A party wall is for the mutual convenience and benefit of adjoining owners and must not be used by one of them in any manner detrimental to the other. (Negus v. Becker, 143 N. Y. 303; Brooks v. Curtis, 50 N. Y. 639.) A party wall is solely for the common owners, there being a mutual easement for the support of buildings, and no more. (Partridge v. Gilbert, 15 N. Y. 601; Schaeffler v. Miehling, 13 Misc. Rep. 520; Eno v. Del Vecchio, 13 N. Y. Super. Ct. 17; Reeve v. Duryea, 144 App. Div. 64; Stockham v. Borough Bill Posting Co., 144 App. Div. 642.) Interference by one owner with the portion of the wall upon his neighbor’s land is a trespass. (Nash v. Kemp, 12 Hun, 592; Laray v. Amsterdam Building Corp., 209 App. Div. 895; Herrmann v. Hartwood Holding Co., Inc., 193 App. Div. 115; Young v. Thedeick, 8 Ohio App. 103.) Neither defendant nor his licensor had any right to build upon the top of the party wall and occupy the full width for its sole purpose. (American Ry. Express Co. v. Lassen Realty Co., 205 App. Div. 238; Herrmann v. Hartwood Holding Co., Inc., 193 App. Div. 115.)

      John D. Monroe for respondent.
    Plaintiff’s rights in the party wall were and are subject to the right of the owner, and of respondent as his lessee, to place the additional beams upon, and have them and the advertising sign supported by said wall, and the findings show no trespass upon or invasion of appellant’s rights in and to said party wall. (Brooks v. Curtis, 50 N. Y. 639; Negus v. Becker, 143 N. Y. 303; Everett v. Edwards, 149 Mass. 588; Rogers v. Sinsheimer, 50 N. Y. 646; American Ry. Express Co. v. Lassen Realty Co., 205 App. Div. 238.)
   Cardozo, Ch. J.

The plaintiff seeks an injunction to limit the defendant in its use of a party wall.

The wall divides the buildings No. 227 and No. 229 South Fourth street, Brooklyn. It is twelve inches wide with a capstone of eight inches, half on each lot. Plaintiff is the owner of one parcel, No. 227. Defendant is the lessee of an interest or easement in the other.

Under cover of this lease, the defendant has built upon the roof of No. 229 a large electric sign weighing two and and half tons, with iron beams resting on the party wall and spanning its entire width. The trial court found that the sign was a continuing trespass, and granted a mandatory injunction directing that the trespass end. The Appellate Division reversed (two justices dissenting), and dismissed the complaint with costs, declaring the use lawful, but adding a proviso that the defendant would be required to remove or relocate the sign if, and when, the same shall constitute an obstacle or interference to any lawful or proper use plaintiff may desire to make of said party wall, or of her said premises.”

A party wall is for the common benefit of contiguous proprietors. Neither may subject it to a use whereby it ceases to be continuously available for enjoyment by the other (Brooks v. Curtis, 50 N. Y. 639; Negus v. Becker, 143 N. Y. 303; Everett v. Edwards, 149 Mass. 588). Each may subject it to whatever uses are proper to a wall, if the like freedom of the other is not curtailed thereby. The meaning of principles so general is pointed by example. A wall may be carried by either owner beyond its height as first erected, provided only it is strong enough to bear the weight and strain (Negus v. Becker, supra). In this , there is no encroachment by one owner upon the equal privilege of the other. Either is continuously at liberty to place his beams in the addition. On the other hand, there are decisions to the effect that the wall, if carried upward, must be solid, without windows (Finch v. Theiss, 267 Ill. 65; Cutting v. Stokes, 72 Hun, 376; 148 N. Y. 730; Metzger v. 46 West 95th St., Inc., 216 App. Div. 289). Use by the adjoining' owner might be hampered if openings were permitted. Whether this is invariably true, there is no occasion to consider (cf. Hammann v. Jordan, 129 N. Y. 61). The decisions are helpful, in any event, as marking a direction and a tendency.

We think the sign complained of subjects the wall to a use for the benefit of one owner whereby it ceases to be continuously available for enjoyment by the other. There has been an exclusive appropriation, which, so long as it is suffered, will make equal use impossible. The beams laid across the capstone, and covering the whole wall, even the plaintiff’s half, have no relation to any use that can be common to the two proprietors. On the contrary, the beams will have to be removed and the structure torn down if the plaintiff has occasion at any time to build the wall higher, as she is privileged to do. This is evident from the very fact that the Appellate Division thought it necessary to add to its decision a proviso that the sign must be removed if thereafter found to be an obstacle to equality of enjoyment. The judgment thus declares in one breath that to put the sign upon the wall is not a trespass at all, but a reasonable and lawful enjoyment of a right, and in the next that the presence of the sign is a potential interference with the uses and purposes for which party walls are built.

We think there is here an inconsistency that points to a flaw in the conclusion. How far the courts have gone in exacting equality of enjoyment, potential as well as actual, has illustration in an English judgment (Stedman v. Smith, 8 E. & B. 1). There the defendant, instead of heightening a wall, put a wash-house upon it, designed for his own use. The court held him as a trespasser. The plaintiff,” said Crompton, J., is excluded from the top of the wall; he might have wished to train fruit trees there,” or even, the judge adds, “ to amuse himself by running along the top.” Here the plaintiff is threatened with damage less trivial and doubtful. She has been forced to submit to an encroachment which may subject her to the expense and delay of an injunction if thereafter she decides to build. She has been told that the defendant may maintain the encroachment without paying her a dollar, though the other owner of the wall is gathering in a rental for the use of a sign of which the encroachment is a part. A privilege so valuable is not to be appropriated by a strong hand, but should be acquired, if at all, through treaty and consent. The defendant,has no more right to place its beams upon a wall located on the plaintiff's land than it would have to project them without consent across the open space beyond.

The decision of this case does not require us to say whether for laches or for other cause the court in the exercise of discretion might have refused a present remedy by injunction, and remitted the plaintiff to a remedy at law. That is not what it assumed to do. It declared the use lawful, and turned the plaintiff out of court.

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court.

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

Judgment accordingly.


author: Per Curiam.

text:
    Ernest L. Caflisch, Respondent, v. Clymer State Bank et al., Appellants.

      (Argued October 14, 1929;
    decided November 19, 1929.)

      Ernest W. Leet, Robert II. Jackson and John E. Durkin for appellants.
    The bank was not bound by the alleged conversations of its officers; the oral contracts if made were void and no constructive trust would result from them and the facts do not sustain the conclusion that the bank is estopped from asserting its title. (Cooley v. Lobdell, 153 N. Y. 596; McCartney v. Titsworth, 119 App. Div. 547; Sleeth v. Sampson, 237 N. Y. 69; Wooley v. Stewart, 222 N. Y. 347; McKenna v. Meehan, 248 N. Y. 206; Wood v. Robe, 96 N. Y. 414; Todd v. Pratt, 149 App. Div. 459; Sinclair v. Purdy, 235 N. Y. 245; Leary v. Corvin, 181 N. Y. 222; Fletcher v. Manhattan Life Ins. Co., 197 App. Div. 484.)

      C. R. Crosby and Nelson J. Palmer for respondent.
    The administrators’ contract was not an illegal contract in the sense that it was without any force or legal effect or could not be enforced in equity in a proper case. (Elliott v. Asiel, 120 App. Div. 829; Moss v. Cohen, 158 N. Y. 241.) The bank is estopped from questioning the validity of the ad ministrators’ contract. (Ryan v. Dox, 34 N. Y. 307; Rothchild v. Title Guarantee & Trust Co., 204 N. Y. 458; Curnen v. Mayor, 79 N. Y. 511; Continental. Nat. Bank v. Nat. Bank, 50 N. Y. 575; Parmely v. Showdy, 86 Misc. Rep. 634; Fernberg v. Allen, 143 App. Div. 866; 208 N. Y. 215; Hazzard v. Wilson, 22 Misc. Rep. 397; Brown v. Bowen, 30 N. Y. 519; Crawford v. Ormsbee, 6 App. Div. 50.)
   Per Curiam.

The administrators of the estate of George G. Kemp made a contract in writing to sell to the plaintiff ten acres of land, constituting a part of an eighty-acre piece, which belonged to the children of George G. Kemp, for the sum of $300, $200 to be paid on the signing of the contract, and the balance upon a delivery of a deed. One of the administrators was the cashier of the defendant bank which held a mortgage upon the land which secured the repayment of a sum of money far in excess of the value of the land. It was agreed that the administrators, upon receipt of the moneys, would pay them over to the bank, in reduction of the mortgage, and that the bank would thereupon release the ten-acre piece from the mortgage lien. The plaintiff made the down payment of $200, which was paid over to the bank, and went into possession of the premises. Later proceedings were taken in Surrogate’s Court to sell the eighty-acre parcel to pay the debts of the decedent. The plaintiff stated that he would make no objection to the sale, if the bank would bid in the property and deed to him the ten .acres. To this the bank agreed. On the sale the eighty acres were sold, subject to the mortgage, to the defendant bank for the sum of one dollar. The bank thereafter refused to convey the ten acres to the plaintiff.

Ihe plaintiff acquired no title or equitable claim to the ten-acre parcel through the written contract with the administrators. They had no title to convey, and were powerless to contract to make a sale of lands belonging to the heirs at law. If the plaintiff believed otherwise his mistake was one of law and not of fact. If he had a cause of action for the return of the moneys paid by him, it was one against the administrators and not against the bank. If it be said that the bank failed to perform its promise to release the ten acres from the lien of the mortgage, the answer is that the plaintiff has not been damaged, since such a release would have redounded to the benefit only of persons having title, and the plaintiff never owned or acquired the title. The sale of the eighty-acre piece to the defendant bank in no wise operated to the injury of the plaintiff. It is urged that the plaintiff omitted to make objection to the sale because the bank promised to convey to him the ten acres if it became the purchaser. The difficulty is that the plaintiff had no valid objection which he could interpose to stop the sale. In no wise was he misled to his own injury by the promise of the bank. If it be argued that because of the bank’s promise he remained away from the sale, the answer is that he could not have been harmed thereby. The land was sold subject to a mortgage held by the bank which seemed an amount far in excess of the value of the entire eighty acres. The plaintiff could not have acquired the property at the sale unless he had bid a greater sum than the land was worth. He was not injured by being deprived of an opportunity so to bid.

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

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

Judgments reversed.


author: Caedozo, Ch. J.

text:
    Charles Burston, Respondent, v. Garret Building Corporation et al., Defendants, and Jerome Lake, Appellant.
    (Argued October 10, 1929;
    decided November 19, 1929.)

      Adrian D. Stevenson for appellant.
    The liability of defendant Lake is strictissimi juris and cannot be extended beyond the plain and specific language of his bond. (Peoria Savings Co. v. Elder, 168 Ill. 55; People v. Lee, 104 N. Y. 441; Evansville Nat. Bank v. Kaufman, 93 N. Y. 273; Gales v. McKee, 13 N. Y. 232; People v. Chalmers, 60 N. Y. 158; Kingsbury v. West Fall, 61 N. Y. 356.) The bond of defendant Lake is not a guaranty of the mortgage contract nor of any bond and he is not bound thereby. (Dougan v. Evansville V. T. H. R. Co., 15 App. Div. 483.)

      Charles Burston and Morris I. Gerber for respondent.
    All of the instruments having been delivered to the plaintiff simultaneously and as part and parcel of one single transaction, must be read and construed together and must be treated as one contract. (Elterman v. Hyman, 192 N. Y. 117; Smith v. Molleson, 148 N. Y. 241; Kent v. Universal Film Mfg. Co., 200 App. Div. 539; Atwater & Co. v. Pennsylvania R. R. Co., 246 N. Y. 519; Kidd v. McCormick, 83 N. Y. 391; Westcott v. Fidelity Deposit Co., 87 App. Div. 497; Curtis v. Tyler, 9 Paige, 431; Sonnenborn v. Libbey, 102 N. Y. 539; Garrison v. Krenshaw Eng. & Const. Co., 198 App. Div. 1020.)
   Caedozo, Ch. J.

The Ainsworth Construction Corporation was the owner as mortgagee of a bond and mortgage to secure the payment of $65,000, payable in installments. There was to be a payment of $2,250 on January 1, 1928, and like sums were to mature quarterly thereafter until October 1, 1930, when the principal was to be paid in full. Non-payment of any installment, or of interest or taxes, was to mature the whole debt at the option of the creditor. The mortgagee wished to sell the bond and mortgage to the plaintiff, who was unwilling to buy without a guaranty of payment. Thereupon, the defendant Lake, the president of the mortgagee corporation, delivered to the plaintiff this collateral bond:

Know all men by these presents, that I, Jerome Lake, am firmly held and bound unto Charles Burston, in the principal sum of $65,000, lawful money of the United States, to be paid to the said Charles Burston, his heirs, legal representatives and assigns, for which payment well and truly to be made, I do bind myself, my heirs, executors, administrators and assigns firmly by these presents, sealed with my seal this 7th day of October, 1927.
“ The condition of the above obligation is such that if Garret Building Corporation, or its successors or assigns or any owner of the premises located on the northeasterly corner of 84th Street and 4th Avenue, in the Borough of Brooklyn, City of New York, and known as the Hotel Madrid, shall well and truly pay or cause to be paid unto the above named Charles Burston, his heirs, legal representatives and assigns the said sum of $65,000 as follows: $2250 on the 1st day of January, 1928, and $2250 'quarterly thereafter on the 1st days of April, July, October and January of each year until the 1st day of October, 1930, when the entire unpaid remainder of said principal sum shall become due and payable, ■ together with interest upon said principal sum and the unpaid balances thereof from the 5th day of October, 1927, payable quarterly on the installment days as aforesaid, then the above obligation shall be void, otherwise to remain in full force, virtue and effect.”
“ JEROME LAKE [l. s]. ”

Garret Building Corporation, the mortgagor, made default during 1928 in the payment of installments of principal as well as interest and taxes. Upon this, the plaintiff gave notice of election to declare the mortgage due. In the foreclosure suit which followed, he joined Lake as a defendant with appropriate allegations as to the execution of the guaranty, and prayed a personal judgment to the extent of any deficiency resulting on a sale. The Supreme Court at Special Term dismissed the complaint as to Lake, holding that the collateral bond or guaranty did not incorporate the provisions of the principal bond and mortgage for the acceleration of the debt, and that its obligation did not mature (except as to the overdue installments) till October, 1930. The Appellate Division reversed, and gave judgment for the plaintiff.

Originally, at common law, the penalty of a bond was payable according to its terms on the breach of a condition, without reference to the damage (Sun P. & P. Assn. v. Moore, 183 U. S. 642, 660; 2 Williston on Contracts, §§ 774, 775). With the growth of courts of equity, the chancellor gave relief by enjoining the collection of the judgment if there was hardship or oppression in the enforcement of the bond according to its letter. In the absence of such restraint the common-law courts pursued the even tenor of their way and applied the ancient rule. The first inroad upon its rigor was the outcome of a statute. The statute 8 & 9 William III, chapter 11, section 8, enacted in 1697, followed by that of Anne (4 & 5 Anne, ch. 16, §§ 12, 13), led to a new practice by which judgment was rendered for the penalty, but a memorandum was indorsed upon the execution confining the recovery to the damages sustained. A like practice was followed in some of our own States either by force of new enactments or by adoption of the practice inherited from abroad. Thus in Warwick v. Matlack (7 N. J. L. 165) the defendant gave a bond for the payment of a debt and interest with warrant of attorney. The debt, when contracted, was not subject to any provision for the acceleration of the principal. Default being made in the payment of an installment of the interest, the court gave judgment for the penalty, but confined the execution to the installment overdue (cf. Willoughby v. Swinton, 6 East, 550; Murray v. Earl of Stair, 2 B. & C. 82). In New York the practice is less roundabout, at least since the merger of law and equity. Here, in an action on' the bond, there may be remission of the penalty without circuity of procedure (cf. Civ. Prac. Act, § 160, formerly Code of Civ. Pro. § 1915). Even so, the principles governing relief are not different from those that moved the conscience of the chancellor.

By the letter of this bond the entire principal is due from the defendant if there is default in- the performance of any part of the condition. He is to be bound in the full amount unless the mortgagor qr owner shall pay at the appointed times. There is no doubt that the condition would have been so read at common law. (Warwick v. Mattack, supra). If relief is to be given against the letter of the covenant, it can only be upon the ground that there is something unconscionable in a provision that upon non-payment of one installment of a debt, there shall be payment of the whole. No such principle can be extracted from the precedents (Noyes v. Anderson, 124 N. Y. 175, 180). If we were to state a general principle, it would have to be the other way. We do better, however, not to generalize at all, since there may be a failure to make allowance for exceptional conditions of time or place or circumstance. We are rather to ask ourselves the question what the chancellor would have said in the circumstances of this particular case if the defendant had gone into the Chancery with a petition for relief upon the score of hardship and oppression.

We think the chancellor in answer would have held him to his word. True, indeed, it is that the terms of the principal bond and mortgage were not repeated in the collateral bond, but they were not unknown or forgotten. The signer of the guaranty was no stranger to the transaction, no unsuspecting volunteer. He was the president of a corporation that was trying to sell the mortgage to the plaintiff, and get the money in its grasp. He knew that if installments were overdue, there might be a call of the whole debt, and experience must have told him of the probability that the call would quickly follow. He cannot have supposed with reason that after a sale under foreclosure with a'judgment for a deficiency against the principal obligor, his own obligation as surety would be postponed for months or years. The transaction as he knew it was notice to him as it was notice to the plaintiff that payment of the whole in the event of default in any part was of the essence of the bargain. Good conscience does not call in such conditions for a relaxation of the letter out of charity to the debtor. Good conscience would be flouted, with injustice to the creditor, if charity were to lead to a refusal to enforce the bond as written (Protector Endowment L. & A. Co. v. Grice, L. R. [5 Q. B. D.j 592, 596; Wallingford v. Mut. Soc., L. R. [5 App. Cas.] 685, 696, 702, 705; Thompson v. Hudson, L. R. [4 Eng. & I. App. (H. L.)] 1, 15; Noyes v. Anderson, supra.).

Whether there is hardship or none in the enforcement of a covenant may depend upon many circumstances extrinsic thereto, including the obligor’s knowledge of the end and aim of the transaction. To give heed to such circumstances is not to vary the covenant by parol, for the bond is enforced according to the letter. It is to ascertain by extrinsic evidence whether relaxation of the letter will be in furtherance of justice. An obligor writing such a guaranty with all the knowledge that this defendant had of the principal transaction, will be held to strict performance as nominated in the bond. Acceleration for such a one is not punishment, a something superadded to his indebtedness as retribution for a wrong. At most, it is the withdrawal of a privilege- or favor. The indebtedness matures in obedience to conditions that were inherent in its origin (Protector Endowment L. & A. Co. v. Grice, supra; Wallingford v. Mut. Soc., supra).

The judgment should be affirmed with costs.

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

Judgment affirmed.


text:
    Samuel Kleinberg et al., Respondents, v. Morris Ratett, Appellant.
    (Argued October 14, 1929;
    decided November 19, 1929.)

      Charles H. Ticknor for appellant.
    There is no person or corporation having an easement upon the premises contracted to be conveyed. (Archer v. Archer, 84 Hun, 287; Scriver v. Smith, 100 N. Y. 471; Albany Garage Co. v. Munson, 218 App. Div. 240; 245 N. Y. 613; Matter of Van Etten v. City of N. Y., 226 N. Y. 483; Olney v. Colluloo Park Co., 182 App. Div. 560.) The pipe itself does not constitute an incumbrance. (Foster v. Scott, 136 N. Y. 577.)

      A. W. Hendrickson for respondents.
    A stream of water flowing upon the surface of the land is not an incumbrance but rather an incorporeal part of the lands. (Barkley v. Wilcox, 86 N. Y. 140.) The stream of water flowing in a pipe line through the premises and four feet under ground, is an incumbrance upon the property. (Amsterdam Knitting Co. v. Dean, 162 N. Y. 278.) The presence of the pipe line and stream therein constitute a legal incumbrance. (Prescott v. Trueman, 4 Mass. 627; Forster v. Scott, 136 N. Y. 577; McMullin v. Wooley, 2 Lans. 394; Rea v. Minkler, 5 Lans. 196; Wetmore v. Bruce, 118 N. Y. 319.)
   Kellogg, J.

The plaintiffs and the defendant entered into a written contract whereby the former agreed to buy and the latter agreed to sell a plot of ground in the village of Mount Kisco, N. Y. The contract called for the delivery of a deed containing covenants, warranting the title to be free from all incumbrances, except the incumbrance of a specified mortgage. On the execution of the contract the plaintiffs made a down payment of 12,000, in compliance with the contract terms. . At the time of closing, the plaintiffs refused to perform on the ground that a natural stream of water, or small brook, crossed the lot from south to north, encompassed in a twenty-four inch pipe laid four feet under ground. That such was the fact appears from the allegations of the complaint which were admitted by the answer, and from the agreement of counsel made upon the trial. It further appears that, from a point one block south of the parcel sold, the brook is a living stream of water which flows northerly through open fields,” and is at all times visible; that, after crossing the parcel in question, it passes, in a culvert, under a village street; that after leaving the culvert it resumes its natural character and continues its flow to the north and west as an open stream visible to every passerby. It does not appear that the brook, as piped, pursues a course across the lot which is other than the course of its natural channel; that it has been lowered or lifted from its natural bed; that the owner of the lot has done other than to provide a conduit for the brook to pass through at the level and in the course of its natural flow. Furthermore, it does not appear that the pipe was laid pursuant to any agreement with the upper or lower owners, or that it has constituted an artificial conduit for the natural brook for a greater period than twenty years. It does not appear, therefore, that the riparian owners above or below have acquired any right by grant or prescription, against the owner of the lot, to have the pipe maintained upon the premises to provide' an artificial waterway. The plaintiffs alleged and proved that they were unaware of the existence of the brook when they executed the contract, and that the defendant was silent in regard thereto. The plaintiffs demanded judgment for the return of their down payment and for the rescission of the contract. The defendant by his answer prayed that the plaintiffs be required specifically to perform the contract. The Appellate Division directed judgment in favor of the plaintiffs for the amount of the down payment.

Superficial or subterranean watercourses, not the subjects of' grant or prescription, are not legal incumbrances, since nature itself, rather than man’s contrivance, is responsible for their origin. True, the owner of land over or through which a natural stream flows may not divert or dam it back, to the injury of the upper or lower proprietor. The former possesses the natural right to have the stream discharge itself through its ancient channel, while it is the latter’s right to have the stream come down to him in undiminished flow according to its established wont. In a sense these rights restrict and burden the use of the intermediate land. Nevertheless, since they are not man-made but natural rights, they constitute neither easements nor encroachments. (Washburn on Easements & Servitudes [4th ed.], p. 24; Angell on Watercourses, § 90; Stokoe v. Singers, 8 El. & Bl. 31; Johnson v. Jordan, 2 Metc. 234; Scriver v. Smith, 100 N. Y. 471; Matter of Van Etten v. City of New York, 226 N. Y. 483.) In Stokoe v. Singers, Erle, J., said: The right to the natural flow of water is not an easement, but a natural right.” In Johnson v. Jordan, Chief Justice Shaw said of the right of an upper owner to have a stream come to and pass from his land without obstruction: It is inseparably annexed to the soil, and passes with it, not as an easement, nor as an appurtenance, but as parcel.” In Matter of Van Etten v. City of New York, Collin, J., said: The right of the owner of riparian land to the natural flow of water in a stream along the land is a corporeal hereditament and is an incident to and is annexed to the land as part and parcel of it. It is not, and is more than, an easement.” In Scriver v. Smith, Earl, J., said: Such, rights have some semblance to easements, and no harm or inconvenience can probably come from classifying them as such for some purposes. But they are not in fact real easements.” Again, he said: Would any of the usual covenants in a deed be violated because a natural stream of water flowed through the land and the upper owners, therefore, had an easement in such land? Clearly not.”

In our case the only rights exercisable over the land in question by the upper or lower proprietors are rights to have the stream proceed across the land in its natural course with undiminished flow. There obtains no right, in either proprietor, to have the stream flow through the artificial conduit which has been provided. The owner of the land may with impunity remove the pipe and restore the stream to its ancient channel. Such being the case, the land is subject to natural rights but not to an easement, and the title is free from incumbrance. Consequently, in tendering title to the plaintiff, the defendant offered full performance of his contract obligations, and no right of action for moneys had and received, as upon a failure of consideration, accrued to the plaintiffs whereby the moneys might be recovered.

No case was made showing fraud or deceit on the part of the defendant, which may have induced the bargain made. The plaintiffs were, therefore, not entitled to have the contract rescinded. However, the plaintiffs were ignorant of the presence of an underground watercourse, while the defendant was well aware thereof, and great hardship will result if the contract be specifically enforced. While, therefore, this court, in the exercise of its equitable powers, may not grant rescission of the contract, it may stay its hand, and refuse its mandate of specific performance, and that course it has determined to pursue.

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

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

Judgments reversed, etc.


author: Hubbs, J.

text:
    John Van Gee, as Administrator of the Estate of James E. Van Gee, Deceased, Respondent, v. Andrew W. Korts, Appellant, Impleaded with Another.
    (Argued October 23, 1929;
    decided November 19, 1929.)

      Robert C. Winchell for appellant.
    As a matter of law, the injuries and death of James E. Van Gee arose out of and in the course of his employment. (Matter of Littler v. Fuller Co., 223 N. Y. 369; DeVoe v. New York State Rys., 218 N. Y. 318; Tallon v. Interborough R. T. Co., 232 N. Y. 410; Matter of Kowalek v. New York Cons. R. R. Co., 229 N. Y. 489.)

      George F. Hixson and Francis J. D’Amanda for respondent.
    An accident to be compensable within the purview' of the Workmen’s Compensation Law must “ arise out of and in the course of employment.” (Workmen’s Compensation Law, § 10; Heits v. Ruppert, 218 N. Y. 148; McCarter v. LaRock, 240 N. Y. 282.) Whether or not the deceased at the time of the accident was in the course of his employment and whether or not the accident arose out of the said employment is a question of law, and was correctly decided by the court. (Pierdiluca v. Benedetto, 210 App. Div. 441; Stimal v. Jewett & Co., 205 App. Div. 170; Matter of Kowalek v. New York Cons. R. R. Co., 229 N. Y. 489; Schultz v. Beaver Products Co., 223 App. Div. 582.)
   Hubbs, J.

The defendant Andrew W. Korts was the owner of the Korts Dairy in the city of Rochester, engaged in distributing milk throughout the city on trucks. James E. Van Gee, the plaintiff’s intestate, was in his employ as a truck driver. There were various other truck drivers employed. The deceased was paid thirty dollars a week. His duty required him to be at the plant sometime between twelve and one o’clock each morning, in order that he might load his truck and start on his route at two o’clock.

At two o’clock on the morning of November 21, 1926, Van Gee had not reported at the plant for duty. Raymond Korts, a son of the defendant, was in the employment of his father at the plant and it was his duty to see that the plant was operated properly. At about two o’clock he took the defendant’s automobile which was at the plant, and drove to the home of Van Gee, knocked on the door and awoke Van Gee, who had overslept. He dressed and got into the automobile with Korts, and they started toward the plant, Korts driving. An accident happened and both were killed.

The jury has found that the accident happened as a result of the negligence of Korts, and that at the time he was in the employ of his father, the defendant, engaged in his business, and that he took the automobile with his father’s consent. It was the custom in the dairy business at Rochester, when drivers were late and did not have a telephone in the house, to send a caller after them. That was the custom at the Korts plant. If a driver overslept and did not report at loading time, someone went after him.

The defendant Korts, by answer, motion and appropriate requests, raised the question that the plaintiff was not entitled to recover in this action because the accident arose out of and was in the course of the servant’s employment, within the meaning of section 10 of the Workmen’s Compensation Law (Cons. Laws, ch. 67, as amd.). The question presented for our determination is whether the deceased employee was, at the time of the accident, in the employment of said defendant, and whether the accident arose in the course of the employment.

There can be no serious question that the deceased was in the employment of the said defendant at the time of the accident. He worked by the week. His day’s work commenced between twelve and one o’clock in the morning. It was past that time and at the time of the accident he was on his way to his place of work under the direction of and in a conveyance provided by the master and driven by the master’s son, his superior, who was acting within the scope of his employment.

We believe, also, that the deceased employee, at the time of the accident, was within the course of his employment, or within the zone of his employment, and that the trip in the automobile from his home was a benefit to the master incident to the contract for his services.

The fine of demarcation between cases where it may be decided that at a particular time a servant on his way to work was within the scope of his employment and cases where it may be decided that he was not is often close and difficult to determine. The principles under which, the determination must be made have been stated in various ways, but, when read together, the cases, with fair accuracy, establish a practical working rule. In an English case under the Workmen’s Compensation Act, Sankey, L. J., stated the rule as it exists in that country in order to bring the servant within the Compensation Act as follows: Where the workman has not arrived at his employer’s premises, or has left them, he must show that he was under an obligation to his employer to be where he was at the time of the accident.” (Anderson v. Hickman & Co., Ltd., 21 B. W. C. C. 389 [Oct. 1928]; Donovan’s Case, 217 Mass. 76.)

When an employee, riding on his own time, chooses his own way of reaching his master’s place of business, and there is no obligation on the master to carry him, the trip is not an incident of the employment, even though the master gratuitously permits him to ride in a conveyance owned by him.

The employment continues throughout the transportation in case the parties by their contract of hiring positively or inferentially so stipulate. If they do not so stipulate the employee when he enters into the process of the transportation is not under the hiring or control or in the employment of the employer and is not the employee.” (Matter of Kowalek v. N. Y. Consolidated R. R. Co., 229 N. Y. 489; Tallon v. Interborough Rapid Transit Co., 232 N. Y. 410.)

Those cases establish the rule in this jurisdiction that a servant is not entitled to compensation under the Workmen’s Compensation Act if injured in a conveyance while on his way to work, unless the contract of hiring expressly or impliedly provides for transportation.

We believe it is equally clear that if the servant is required to be in the particular conveyance at the time as an incident of the employment in furtherance of his master’s business, and is injured, he comes within the act and is entitled to compensation.

Compensation is awarded for injuries to an employee which occur in a conveyance furnished by the employer while carrying him to his work, provided the employer is bound by contract, express or implied, to furnish transportation. The work commences when the employee enters the conveyance, and the journey is an incident to the employment. (Matter of Littler v. Fuller Co., 223 N. Y. 369; Listorli v. N. Y. C. R. R. Co., 251 N. Y. 327.)

In McGuirk v. Shattuck (160 Mass. 45) the plaintiff was a laundress employed by the defendant by the week. She was injured while riding in the defendant’s wagon from her home to her place of work. The court said: Whether the transportation of the plaintiff was entirely gratuitous, as it seems to have been, or whether it was in pursuance of such an understanding between the parties that it may be deemed to have been a part of the contract, in either case it was incident to the service which the plaintiff was to perform, and closely connected with it.” That case has been cited with approval in Kilduff v. Boston Elevated Ry. Co. (195 Mass. 307); Donovan’s Case (supra) and Rourke’s Case (237 Mass. 360).

Where an employee was told by the employer to ride to his place of work on a truck owned and operated by an independent contractor and was injured while so riding the court said: “ When an employee mounted the truck at the employer’s direction to go to the job, in accord with the employer’s contemplation of what his conduct would be in going to the place of the job, he came within the zone of his employment as contemplated by his employer.” (Saba v. Pioneer Contracting Co., 103 Conn. 559.)

To say that the deceased was not “ under an obligation to his employer to be where he was at the time of the accident ” is to ignore the undisputed facts in the case and all legitimate inferences to be drawn therefrom. It cannot be fairly said that in dressing and getting into the defendant’s automobile, at the direction of the master’s representative, and in riding with him toward the plant, the servant was following his own volition and that the act of the master in calling him and directing him to dress at once and ride with him to the plant in the automobile was a gratuitous act on the part of the master and was not an act incident to the master’s business. One of the fundamental obligations of a servant is to obey all reasonable orders and directions of the master. It was only because Raymond Korts was the alter ego of the master, with authority to order and direct, that he called the deceased at two o’clock in the morning and required him to ride with him to the defendant’s plant. In obeying, the deceased was acting under express orders of the defendant during working hours. He was performing a duty owed to the master and furthering the master’s business. The deceased would not have been in the automobile driven by the master’s representative except for his contract of service which imposed upon him the duty of obeying his master’s orders. He was under no obligation to dress and ride with the master’s representative to the plant unless it was under his contract for service and to further his master’s interests.

There was a causal connection between the employment and the accident. The accident was a rational consequence of a hazard connected with the employment. The hour of employment had arrived; the truck to be driven by the deceased had not been loaded; the master desired that it should be loaded and started on the route; and in furtherance of that purpose, he undertook to hasten the arrival of the servant at the plant. The servant obeyed instructions when he entered the automobile and thereby placed himself under the master’s control for the purpose of furthering the master’s interests. Since he was acting within the course of his employment and came within the Workmen’s Compensation Act, this action cannot be maintained..

The judgments 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.