text:
    David A. Calhoun, Respondent, v. S. Morrill Banner et al., Appellants.
    (Argued June 13, 1930;
    decided July 8, 1930.)

      Osmond K. Fraenkel for appellants.
    Plaintiff’s right to recover should be denied. (Bendell v. De Dominicis, 251 N. Y. 305.)

      Eugene L. Bondy for respondent.
    The plaintiff was not barred from recovery by any violation of article 12-A of the Beal Property Law. (Reis Co. v. Zimmerli, 224 N. Y. 351; Davidson v. Stocky, 202 N. Y. 423; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Williston on Contracts, § 1030; Bendell v. De Dominicis, 251 N. Y. 305; Richards v. Wiener Co., 145 App. Div. 353; Dykers v. Townsend, 24 N. Y. 57; Siegel v. Rosenszweig, 129 App. Div. 549; Trieper v. Buckley & Horton Co., 119 Misc. Rep. 597.)
   Lehman, J.

The jury has found upon sufficient, though disputed, testimony that the plaintiff, a real estate broker, complied with the terms of his employment by procuring a proposed purchaser for property owned by the defendants ready, able and willing to enter into a contract upon the terms laid down by the defendants. The only question of law which the defendants urge on this appeal is that the plaintiff was not a licensed real estate broker at the time he was employed by the defendants.

The evidence establishes that the plaintiff had procured a license before he induced his customer to accept the defendants’ offer to sell. Until that time he had earned no compensation. The statute provides that no cause of action for compensation for services rendered as a real estate broker may be maintained by any person without allegation and proof that such person was a duly licensed real estate broker * * * on the date when the alleged cause of action arose.” (Real Property Law, § 442-d; Cons. Laws, ch. 50.) The plaintiff has complied with the letter of the statute.

In the recent case of Bendell v. De Dominicis (251 N. Y. 305) this court gave warning that even where the broker complied with the letter of the statute by procuring a belated license before the negotiations he had instituted were formally consummated, he might not recover compensation for services illegally rendered in the conduct of the negotiations. In that case Judge Pound formulated the question presented: Out of services illegally rendered comes a lawful contract of sale. The question is whether, assuming for the purpose of the argument that plaintiff was the producing cause of the agreement although he was absent when it was actually concluded, his claim for compensation is outlawed by the criminal nature of such services. The answer seems conclusively in the affirmative. Illegality is a defense to the action independently of the burden of allegation and proof contained in section 442-d.”

Here no such question is presented, even though we should assume that the evidence establishes that- the plaintiff was not licensed as a broker at the time he was employed. Until the license was obtained any services he might- render would be illegal; but for such illegal services, if any, the plaintiff claims no compensation. All the negotiations, all the services rendered through which the plaintiff induced his customer to accept the defendants’ offer, came after the date of the license. No illegal act by the plaintiff was a producing cause of the results achieved by the plaintiff for which he claims compensation, or taints with its own illegality the plaintiff’s cause of action.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    Charles H. McCarthy, Appellant, v. Charles W. Culkin, as Sheriff of New York County, Respondent.
    (Submitted June 6, 1930;
    decided July 8, 1930.)

      Borris M. Komar for appellant.
    Section 961 of the Civil Practice Act, unless limited to levies made before judgment, is clearly unconstitutional. (Heath v. New York Building Loan Banking Co., 146 N. Y. 260; Stannard v. Hubbel, 123 N. Y. 520; Foley v. Foley, 15 App. Div. 403; Pennoyer v. Neff, 95 U. S. 714; Cooper v. Reynolds, 10 Wall. 308; Helme v. Buckelew, 229 N. Y. 363; Dimmerling v. Andrews, 236 N. Y. 43; Civ. Prac. Act, § 520; Gillig v. Treadwell Co., 148 N. Y. 177; Van Camp v. Searle, 147 N. Y. 150; Pack v. Gilbert, 124 N. Y. 612; Clark v. Smith, 57 App. Div. 524.) No questions of preference arise between the attachments or between the first attachment and plaintiff’s execution. (People v. St. Nicholas Bank, 41 App. Div. 313; First Nat. Bank v. Reinitz, 4 N. Y. Supp. 801; Schieb v. Baldwin, 22 How. Pr. 278; Cahill v. Broadwell Productions, Inc., 190 N. Y. Supp. 225; William v. Mellor, 12 Colo. 1; Mann v. Roberts, 11 Lea [Tenn.], 57; Cook v. Clemens, 87 Ky. 566.) The legal doctrine of dormant process is applicable to warrants of attachment by virtue of section 960 of the Civil Practice Act. (Storm v. Woods, 11 Johns. 110; Ross v. Jones, 89 U. S. 576; Jones v. City of Albany, 151 N. Y. 233; People v. Palmer, 109 N. Y. 110; Penoyer v. Kelsey, 150 N. Y. 77; Peck v. Tiffany, 2 N. Y. 251.)

      John Caldwell Myers and John F. Keating for respondent.
    The first attachment, because of its prior delivery to the sheriff, is superior to plaintiff’s attachment or execution. (Pach v. Gilbert, 124 N. Y. 612; Gillig v. Treadwell, 148 N. Y. 177.) The lien of the first attachment was not destroyed by inaction. (Prentiss v. Greene, 193 App. Div. 672; Butler v. Maynard, 11 Wend. 548; Doty v. Turner, 8 Johns. 20; Appleton v. National Park Bank, 211 App. Div. 708; 231 N. Y. 561.)
   Lehman, J.

The plaintiff on the 24th day of July, 1928, obtained a judgment for the sum of $26,115.42 against the Banque de Commerce de L’Azoff Don, a banking corporation organized under the laws of Russia and not doing business in the State of New York. In that action a warrant of attachment was issued directed to the defendant as Sheriff of New York county on April 17th, 1928. He served a certified copy of the attachment on the National Bank of Commerce of New York. That bank was indebted to the foreign bank, the defendant in the attachment action, in the sum of $26,615.42. Execution was issued upon the judgment thereafter obtained in the attachment action, and the Sheriff collected from the National Bank of Commerce the amount it owed to the foreign bank. He has refused to pay that sum to the plaintiff.' This action is brought to recover the damages caused by his refusal.

The complaint assumes to set forth the grounds upon which that refusal was based. The warrant of attachment in the plaintiff’s action was delivered to the Sheriff more than eight years after a warrant of attachment was delivered to the Sheriff of the county of New York in an action against the same defendant, in which one M. Sergey Friede was plaintiff. The question presented under the allegations of the complaint is whether the plaintiff’s warrant of attachment is junior to any rights acquired under the warrant of attachment in the Friede action.

It appears from the allegations of the complaint that at the time the Sheriff received the warrant of attachment in the plaintiff’s action, no levy had been made by the Sheriff in the Friede action upon the sum due from the National Bank of Commerce. If the time had not yet elapsed in which a valid and effective levy could be made under the warrant of attachment in the Friede action, then undoubtedly under the provisions of sections 960 and 961 of the Civil Practice Act, the Sheriff, levying upon the bank account, was required to “ take the same proceedings as if the levy was made under the first warrant,” i. e., the warrant in the Friede action which he had received many years before.

Judgment had been entered in the Friede action two years before the Sheriff received the warrant of attachment in the plaintiff’s action. In Lynch v. Crary (52 N. Y. 181) this court decided that the power to levy an attachment does not survive the recovery of judgment in the action. Its power was then spent so far that no new right or interest in the property of the defendants could be acquired under it.”

We have stated that the defendant against whom the warrants of attachment was directed is a foreign banking corporation not doing business in this State. It appears from the allegations of the complaint that the summons in the Friede action was served otherwise than personally and the defendant did not appear in the action. Under the provisions of section 520 the judgment can be enforced only against the property which has been levied upon by virtue of a warrant of attachment at the time when the judgment is entered.” Such a judgment is in effect a judgment in r&m, directed against property upon which levy has been made before judgment is rendered. The court has acquired no jurisdiction over the person of the defendant, and has jurisdiction only over his property in the State which “ is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in remff .A judgment which proceeds beyond this jurisdiction of the court as determined at the time it is rendered is not in accord with due process of law. (Pennoyer v. Neff, 95 U. S. 714; Dimmerling v. Andrews, 236 N. Y. 43.)

Section 961 of the Civil Practice Act provides that where a second warrant against the same defendant is delivered to the same sheriff, he must execute it by a levy upon property within his county, and he must thereupon take the same proceedings as if the levy was made under the first warrant.” Here the power to levy under the warrant of attachment in the Friede action so that new rights might be acquired thereunder was spent when judgment in that action was rendered. The Legislature could not restore that power nor make the judgment in the Friede action enforceable out of property over which the court had not acquired control at the time of the judgment. We find no suggestion under a fair construction of the statute that the Legislature attempted to exceed the constitutional limits of its powers. When the Legislature provided for preferential rights arising under two or more warrants of attachment it was merely apportioning rights which might otherwise conflict. If the Sheriff levied under the warrant in the Friede action after the judgment, the levy would have created no new rights in the judgment creditor. Though the Legislature provided that upon a levy made after a second warrant was delivered to the Sheriff directed against the same defendant, the Sheriff must “ take the same proceedings as if the levy was made under the first warrant,” it is plain that the Legislature did not intend to make rights derived from the second warrant junior to rights which could not arise from a levy made under the first warrant. If they did intend to enlarge the scope of a judgment in rem where the court had acquired no jurisdiction over the person of the defendant they exceeded their constitutional powers.

We have considered only the application of section 961 of the Civil Practice Act where the first warrant was issued in an action where a judgment has been entered which can be satisfied only out of property upon which levy had been made at the time of the judgment. We are not now called upon to decide its application under other circumstances.

• The judgment of the Appellate Division and that of the Special Term should be reversed and defendant’s motion for judgment on the pleadings denied, with costs in all courts.

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

Judgment accordingly.


author: Hubbs, J.

text:
    Anna Minsker, Appellant, v. John Hancock Mutual Life Insurance Company, Respondent.
    (Argued June 13, 1930;
    decided September 30, 1930.)

      Ernest D. Leet, Robert H. Jackson and John E. Durkin for appellant.
    The defendant must establish fraud in the application. (E. D. P. Dye Works v. Travelers Ins. Co., 234 N. Y. 441; Tunnard v. Supreme Council Royal Arcanum, 201 App. Div. 746; Bollard v. New York Life Ins. Co., 98 Misc. Rep. 286; 182 App. Div. 915; 228 N. Y. 521; Kwiatkowski v. Brotherhood of American Yeomen, 216 App. Div. 647; 243 N. Y. 394; Charlton v. Metropolitan Life Ins. Co., 202 App. Div. 814; 234 N. Y. 639.) Direction of verdict of no cause of action was error because the statements in the application could not be treated as warranties until fraud was found as matter of fact. (Fitch v. American Popular Life Ins. Co., 59 N. Y. 557; Schane v. Metropolitan Life Ins. Co., 76 App. Div. 271; Hook v. Michigan Mutual Ins. Co., 44 Misc. Rep. 478; 139 App. Div. 922; Elliott v. Mutual Benefit Life Ins. Co., 76 Hun, 378; Higgins v. John Hancock Mutual Life Ins. Co., 20 Misc. Rep. 231; Bollard v. New York Life Ins. Co., 98 Misc. Rep. 286; E. D. P. Dye Works v. Travelers Ins. Co., 234 N. Y. 441; Kwiatkowski v. Brotherhood of American Yeomen, 216 App. Div. 647; 243 N. Y. 974; Garrett v. Supreme Tribe of Ben Hur, 219 App. Div. 413; Hoff v. Hoff, 175 App. Div. 40; Baumann v. Preferred Accident Ins. Co., 225 N. Y. 480; Satz v. Massachusetts Bonding & Ins. Co., 243 N. Y. 385; Stanulevich v. St. Lawrence Life Assn., 183 App. Div. 111; 228 N. Y. 586.)

      Clarence G. Pickard for respondent.
    A disclosure to the defendant’s agent or physical examiner is not binding upon the defendant, and the plaintiff cannot recover upon the grounds of disclosure to such agent or physician. (Northern Assur. Co. v. Grand View Building Assn., 183 U. S. 308; 203 U. S. 106; Ballard v. New York Life Ins. Co., 98 Misc. Rep. 286; Satz v. Massachusetts Bonding & Ins. Co., 243 N. Y. 385; Archer v. Equitable Life Assur. Soc., 218 N. Y. 18; Kwiatkowski v. Brotherhood of American Yeomen, 243 N. Y. 394; Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Grubiak v. John Hancock Mutual Life Ins.
      Co., 212 App. Div. 126; McCormack v. Security Mutual Life Ins. Co., 220 N. Y. 447; Stanulevich v. St. Lawrence Life Assn., 228 N. Y. 586; Baumann v. Preferred Accident Ins. Co., 225 N. Y. 480.) The misrepresentations contained in the application were material to the risk, and were fraudulently made. (Kasprzyk v. Metropolitan Life Ins. Co., 79 Misc. Rep. 263; Grubiak v. John Hancock Mutual Life Ins. Co., 212 App. Div. 126; Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Stanulevich v. St. Lawrence Life Assn., 228 N. Y. 586; Telford v. Metropolitan Life Ins. Co., 223 App. Div. 175; 250 N. Y. 528.)
   Hubbs, J.

On October 2, 1926, the defendant issued a life insurance policy for -$10,000 upon the life of Eh Minsker, plaintiff’s husband, in which she was named as beneficiary. Within one year thereafter and upon July 15, 1927, the insured died of nephritis and endocarditis. Proof of death was duly served. The defendant denied liability upon the policy but tendered a return of the premium paid thereon. The complaint herein is in the usual form except that in the sixth paragraph it alleges, in anticipation of the defense that the insured had made false answers to questions in regard to previous consultations with and treatment by physicians and at a medical institution, that the answers to such questions were truthfully made to the defendant’s local agent and medical examiner and that they had full knowledge of the facts.

The answer alleges breach of warranty and material false representations. The written application for the policy, in Part B — Statement to Medical Examiner — contains the two following questions:

“ 14. Have you had any medical advice during the past five years? State every instance with illness, dates, duration, severity and results and the names and addresses of the physicians who treated you.

“ 15. Have you ever received or applied for treatment at any hospital, dispensary, sanitarium, cure or other institution? ”

The insured answered each of those questions No.” It is undisputed that both answers were false. It clearly appears that on several occasions within a few months before the application was signed the insured received medical advice from at least three different physicians who each treated him professionally and prescribed for him and that on such occasions he was ill. On one occasion when ill he attended the Cleveland Clinic located at Cleveland, Ohio, was under observation by a physician in that medical institution and was prescribed for by said physician. The nature of his illness and the remedies prescribed by the physicians were not disclosed. Testimony in regard to those matters was excluded upon the objection of plaintiff’s counsel upon the ground that it was incompetent under section 352 of the Civil Practice Act.

The position of the appellant is that the false answers as written to the two questions quoted do not affect the validity of the policy as the insured orally imparted the correct and truthful answers to the defendant’s local agent and medical examiner and that the evidence does not disclose a fraudulent breach of warranty or material false representation as it does not appear that the insured was tre'ated by a physician for any serious physical ailment, and that it must be presumed that he was not, as his son testified that he had been continuously in good health for five years before the policy was issued.

Prior to January 1, 1907, when section 58 of the Insurance Law (Cons. Laws, ch. 28) became effective, the courts of this State had decided in numerous cases that if the medical examiner of a fife insurance company was truthfully told, by the applicant for a policy, of facts which under the terms of a policy would make it void if not noted upon it, the company could not avail itself of the defense that such facts were not stated in the policy, the underlying principle being that it would be a fraud upon the insured to accept pay for a policy which the company through its agent knew was void when delivered. Such was the case of Sternaman v. Metropolitan Life Ins. Co. (170 N. Y. 13). The Federal Supreme Court adopted a different view and held that a void policy could not be made valid by parol testimony to the effect that the company’s agent had knowledge of the true facts and that the answers as written in the application were incorrectly written by the company’s agent. (Northern Assurance Co. v. Grand View Building Assn., 183 U. S. 308.) Section 58 of the Insurance Law, (Laws of 1906, ch. 326) reads in part: Every policy of insurance issued or delivered within the state on or after the first day of January, nineteen hundred and seven, by any fife insurance corporation doing business within the state, shall contain the entire contract between the parties and nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application or any other writings unless the same are indorsed upon or attached to the policy when issued; and all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties. Any waiver of the provisions of this section shall be void.”

After the enactment of that statute, the case of Sternaman v. Metropolitan Life Ins. Co. (supra), and others to the same effect, ceased to be authority upon the question in an action upon a life insurance policy issued by a “ life insurance corporation doing business within the state,” when a copy of the application was indorsed upon or attached to the policy.

The statutory rule superseded the court-made rule.

It should be noted that the statute applies only to fife insurance corporations and not to other insurance companies or associations. (Baumann v. Preferred Accident Ins. Co., 225 N. Y. 480.)

Prior to the enactment of section 58, a breach of warranty constituted an absolute defense to an action on a policy, even though the warranty related to an immaterial matter, but a misrepresentation to constitute .a defense as a matter of law must have related to a material matter. (E. D. P. Dye Works v. Travelers Ins. Co., 234 N. Y. 441, 449; Vance on Insurance [2d ed.j, §§ 113, 114, pp. 389, 390; also pp. 359, 360.)

Since the enactment of section 58, a statement by the insured, though incorporated into the policy, will be interpreted as a representation rather than a warranty, at all events in the absence of fraud, and so, even though erroneous, will not vitiate the policy unless material to the risk.

The policy must now contain the entire contract. All applications, statements and agreements, if they are to have effect as a part of the policy (Jefferson Ins. Co. v. Cotheal, 7 Wend. 72, 81; Vance on Insurance, supra), must be physically indorsed thereon or attached thereto, so that the insured when he receives a policy may know all of its terms by reading it or having it read. (Archer v. Equitable Life Assur. Soc., 218 N. Y. 18.)

Prior to 1907, life insurance companies were not required to attach to their policies a copy of the application, but might embody it in the contract by reference merely. The insured by reading his policy could not ascertain that the medical examiner had incorrectly recorded his answers. Since 1907, the insurer is under a duty to indorse or attach the application if the statements therein contained are to have contractual effect, or even the effect of a collateral representation. (Archer v. Equitable Life Assur. Soc., supra.)

When an insured receives a policy, it is his duty to read it or have it read, and if an application incorporated therein does not contain correct answers to the questions asked by the medical examiner it is his duty to have it corrected. In such circumstances a recovery will no longer be permitted because the medical examiner incorrectly recorded the applicant’s answers or because the insured was unable to read or neglected to read the policy.

The answers to questions 14 and 15 as written and annexed to the policy establish as a matter of law that they are material to the risk. The plaintiff is bound by the answers as written, since the application was physically annexed to the policy of insurance, which she received from the insurer. Being a part of the policy, the statements in the application had at least the effect of erroneous and material representations under the rule at common law. (Bollard v. New York Life Ins. Co., 98 Misc. Rep. 286; affd., 182 App. Div. 915; affd., 228 N. Y. 521; Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Stanulevich v. St. Lawrence Life Assn., 228 N. Y. 586.)

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Per Curiam.

text:
    Sam Needleman, Appellant, v. John R. Voorhis et al., as Members of the Board of Elections of the City of New York, Respondents.
    (Argued September 30, 1930;
    decided October 7, 1930.)

      George E. Polhemus, C. Gordon Lamude and Israel A. Needleman for appellant.
    The provision of article X, section 5, of the Constitution is restricted in its application to elective constitutional officers. (People v. Hogan, 214 N. Y. 216; People v. Scheu, 167 N. Y. 292; People v. Comstock, 78 N. Y. 356.) A borough president is not a constitutional officer. (People ex rel. Deitz v. Hogan, 214 N. Y. 216.) The Legislature did not have the power to devolve the constitutional function of apportioning Assembly districts upon any one not elected to the office of alderman. (People ex rel. Wogan v. Rafferty, 208 N. Y. 451; Wamer v. People, 2 Den. 283; People v. Albertson, 55 N. Y. 57; Williams v. Boynton, 147 N. Y. 426; People v. Draper, 15 N. Y. 544.)

      Arthur J. W. Hilly, Corporation Counsel (William E. C. Mayer and J. Joseph Lilly of counsel), for respondents.
    The president of the borough of Brooklyn is an elective, constitutional officer, one of whose duties is connected with the apportionment of the counties composing the city into Assembly districts. (People ex rel. Deitz v. Hogan, 214 N. Y. 216; Matter of Schwab v. Boyle, 174 App. Div. 442; 219 N. Y. 561.)
   Per Curiam.

A borough president is an elective officer and a member of the board of aldermen (Greater New York Charter, § 18). That body is charged under the Constitution (Art. Ill, § 5) with the duty of dividing the several counties within the city of New York into Assembly districts and its members are constitutional officers (People ex rel. Deitz v. Hogan, 214 N. Y. 216, 222; Matter of Schwab v. Boyle, 174 App. Div. 442, 445; affd., 219 N. Y. 561). The present incumbent of the office of borough president of the borough of Brooklyn, appointed to fill a vacancy (Greater New York Charter, § 382), is forbidden to hold his office by virtue of such appointment beyond the commencement of the next political year (Const, art. X, § 5). So much of section 382 of the Greater New York Charter as provides that a vacancy in this office shall be filled for the unexpired term of his predecessor is, therefore, unconstitutional.

The judgment should be affirmed.

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

Judgment affirmed.


text:
    The People of the State of New York ex rel. John F. Poinsel, Respondent, v. James P. Dooley, as Mayor of the City of Cohoes, et al., Appellants, Impleaded with Others.
    (Argued October 3, 1930;
    decided October 7, 1930.)

      Edgar B. Nichols, Corporation Counsel (J. S. Carter of counsel), for James P. Dooley, appellant.
    It was the duty of the mayor of the city of Cohoes to appoint as election officials for the Republican party in the city of Cohoes the persons on the lists filed by the appellant Linen, as chairman of the Republican general city committee. (Election Law, § 41; People ex rel. Coffey v. Democratic Committee, 164 N. Y. 335; Matter of Burton v. Schmidt, 128 Misc. Rep. 272; People ex rel. McCarren v. Dooling, 128 App. Div. 1.)

      George W. Greene for Frederick B. Linen, appellant.
    There is no faction or section of the Republican general committee of the city of Cohoes as that phrase is used in section 41 of the Election Law. (People ex rel. McCarren v. Dooling, 128 App. Div. 1; Sheehan v. McMahan, 44 App. Div. 63; People v. Gleason, 18 Misc. Rep. 511; People ex rel. Van Wyck v. Wheeler, 18 Hun, 540.) Relator is not entitled to a peremptory order of mandamus. (Village of Massena v. St. Lawrence Water Co., 126 Misc. Rep. 524; Matter of O’Connell v. Clark, 200 App. Div. 606; Matter of Weissman, 198 App. Div. 498.)

      John J. McManus for respondent.
    The certificate of the chairman of the Republican state committee is the act of such State committee. (Election Law, § 41;
      Patterson v. Robinson, 116 N. Y. 193; Spitzer v. Born, Inc., 194 App. Div. 738; Rathbun v. Snow, 123 N. Y. 343; Hardin v. Morgan Lithograph Co., 247 N. Y. 332; Ostrom v. Greene, 161 N. Y. 353.) Where more than one list of election officers is filed by persons claiming to be the chairman or proper officer of a general city committee of a party entitled to file such list, only that list can be accepted which is recognized as regular by the State convention or the State committee of such party. (Election Law, § 41; Matter of Knollin, 59 Misc. Rep. 373; 128 App. Div. 908; 196 N. Y. 526.)
   Per Curiam.

The Election Law (Cons. Laws, ch. 17, § 41) intends that recognition of the regularity of a faction or section of a party by a State convention, or, in an appropriate case, by the State committee of such party, shall be conclusive upon the appointing officer or board. It does not expressly or by implication give the same force to a certificate of the chairman of the State committee where neither a State convention nor a State committee has previously determined to accord such recognition. In the absence of conclusive proof that the relator is the duly elected chairman of the general committee, no peremptory order can issue.

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

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

Orders reversed, etc.


text:
    In the Matter of Matthew A. Heeran, Respondent, against John J. Scully, as Corporation Counsel of the City of Rensselaer, et al., Appellants.
    (Argued October 1, 1930;
    decided October 7, 1930.)

      John J. Scully for appellants.
    The petitioner is not entitled to a peremptory order of mandamus. (Schieffelin v. Komfort, 212 N. Y. 520.) The defendants have no duties to perform under City Home Rule Law, section 18. (Matter of Burr v. Voorhis, 229 N. Y. 382; People ex rel. Harris v. Commissioners, 149 N. Y. 26; People ex rel. Wooster v. Maher, 141 N. Y. 330.) The local law does not curtail any duties of elective officers. (Little Rock v. Board of Improvement, 42 Ark. 152; People v. Wright, 70 Ill. 388; Francis v. Blair, 96 Mo. 515.)

      Daniel J. Dugan and Isadore Bookstein for respondent.
    The proposed local law is required to be submitted for the approval of the electors of the city of Rensselaer under City Home Rule Law (§ 15, subd. 5, § 18). (Rathbone v. Wirth, 150 N. Y. 474; People ex rel. Broderick v. Morton, 156 N. Y. 140; People v. Dooley, 171 N. Y. 188; Matter of McCabe v. Voorhis, 243 N. Y. 401; Bareham v. City of Rochester, 246 N. Y. 140; Adler v. Deegan, 251 N. Y. 467; Mills v. Sweeney, 219 N. Y. 221.) Mandamus is the proper remedy to compel the performance of their public duty by the corporation counsel and the city clerk in relation to taking the requisite action for the referendum in accordance with the City Home Rule Law. (Matter of McCabe v. Voorhis, 243 N. Y. 411; Roberts v. U. S., 176 U. S. 221; Wilber v. Krunchnic, 280 U. S. 306.)
   Per Curiam.

A local law by which two members are added to a board theretofore consisting of three elective city officers has the effect of curtailing the power of such elective officers and becomes operative only after approval by the majority of the qualified electors of that city voting upon the proposition (City Home Rule Law; Cons. Laws, ch. 76, § 15, subd. 5.) A duty is imposed upon the city clerk with the advice of the corporation counsel to prepare an abstract of such local law and forthwith to transmit such proposition and such abstract to the designated election officers (Id. § 18). Such a duty may be enforced by mandamus upon the petition of a qualified elector of the city.

The order should be affirmed, with costs.

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

Order affirmed.


author: Crane, J.

text:
    Joseph Latini, Respondent, v. Louis Zavodnick, Defendant, and Regulus Realty Company, Inc., Appellant.
    (Argued October 2, 1930;
    decided October 14, 1930.)

      Theodore H. Lord and James B. Henney for appellant.
    No negligence of the appellant was established. No connection was shown between the appellant and the men who placed the boards against the wall in an unsafe and improper position. (Wolf v. American Tract Society, 164 N. Y. 30; Murphy v. Altman, 28 App. Div. 472; Joyce v. Convent Ave. Const. Co., 155 App. Div. 586; Hogan v. Arbuckle, 73 App. Div. 590.)

      Owen E. Reilly for respondent.
    There is evidence showing that appellant not only actively supervised and directed the carpenters, but specifically ordered the carpenters to remove the lumber from the street to the roof of its garage. This evidence was neither contradicted nor denied by appellant, the question was one for the jury, and the jury were justified in finding the appellant negligent. (Kilmer v. New York Tel. Co., 228 App. Div. 63; Kraus v. Birnbaum, 200 N. Y. 130; Hamke v. Brown, 28 App. Div. 37; Shanahan v. Crestonia Constr. Co., 202 N. Y. Supp. 785; Baldwin v. Abraham, 57 App. Div. 67; 171 N. Y. 677.)
   Crane, J.

The Regulus Realty Co., Inc., a domestic corporation, was the owner of premises known as 280 Dyckman street in the borough of Manhattan, city of New York, upon which was being erected a two-story garage. The work was being done under contract. Louis Zavodnick was a sub-contractor for the carpenter work. Alexander Allen is alleged in the complaint to have been the general contractor.

On the 24th day of March, 1926, the plaintiff was working for the bricklayers in erecting a scaffold. At that time the roof was being covered with planks by the carpenter sub-contractor, Zavodnick. The lumber had been placed in the street and was being lifted by the carpenter’s employees to the roof by hand. At this point the roof was not more than one story high so that the boards, fourteen or fifteen feet in length, could be handed from the street to the man on the roof.

The testimony for the plaintiff shows that the carpenter’s men placed about twelve planks upright, leaning against the wall of the building, so that the man on the roof could reach them and pull them up. These twelve planks fell over on the plaintiff who was working nearby, causing his injury.

The plaintiff sued Zavodnick, the carpenter, whose men it is claimed negligently placed the boards in this position; Alexander Allen, the general contractor, and the Regulus Realty Co., Inc.

Allen was president of the Regulus Realty Co., Inc., and was on the job continuously. When the lumber was placed in the street, he told the carpenters to take it away. He said to them, “ Pick up the boards in the street and put them on the roof.” How this work was to be done he did not say. He gave no instructions as to the manner in which the various contractors and their men should perform the work.

The action was discontinued without costs, by consent, as to Alexander Allen. The jury found a verdict for the defendant Zavodnick, and a verdict for the plaintiff against the owner, the Regulus Realty Co., Inc.

The judge charged the jury as follows: There is no competent evidence in this case that the defendant Regulus Realty Company at any time was charged with, or had a right to direct, the manner or performance of the details of the work, of the workmen.” In this he was correct.

Neither is there any evidence that Allen, the president of the Regulus Realty Co., Inc., told the carpenters to lean the boards against the building. If there were any negligence, it was.that of the carpenters and not that of the owner.

The verdict against the Regulus Realty Co., Inc., was without any evidence to support it, and the judgment must be reversed.

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

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

Judgments reversed, etc.


author: Pound, J.

text:
    In the Matter of the Claim of Florence Renouf, Respondent, against New York Central Railroad Company et al., Appellants. State Industrial Board, Respondent.
    (Argued September 30, 1930;
    decided October 14, 1930.)

      William B. Davis and E. C. Sherwood for appellants.
    The claimant was not an employee, but was pursuing an independent calling. (Schloendorff v. New York Hospital, 211 N. Y. 125; Matter of Bernstein v. Beth Israel Hospital, 236 N. Y. 268; Brown v. St. Vincent’s Hospital, 222 App. Div. 402; Phillips v. Buffalo General Hospital, 239 N. Y. 188; Pearl v. West End Street Ry. Co., 176 Mass. 177; Moody v. Industrial Accident Comm., 269 Pac. Rep. 542; Fontanella v. N. Y. Central R. R. Co., 186 App. Div. 588; Murtha v. New York Homeopathic Hospital, 228 N. Y. 183.)

      Hamilton Ward, Attorney-General (George S. Kelly and E. C. Aiken of counsel), for respondent.
    The claimant was in the employ of the railroad company at the time of her injury and was entitled to compensation. (Matter of Brown v. St. Vincent’s Hospital, 222 App. Div. 402.)
   Pound, J.

The question is whether claimant, a trained nurse engaged specially by the New York Central Railroad Company on a single case to render services to an injured employee of the company in a hospital, is entitled to compensation for injuries sustained by her arising out of and during the course of her employment, as an employee of the company within the meaning of the Workmen’s Compensation Law (Cons. Laws, ch. 67), when she acts under the general direction of the company’s physician in charge of the case.

Operating a railroad is a hazardous employment and the employees of the railroad company come under the protection of the act although their employment is not classified as hazardous. (Matter of Dose v. Moehle Lithographic Co., 221 N. Y. 401; Matter of Europe v. Addison Amusements, Inc., 231 N. Y. 105.) The calling of nurse is not classified as hazardous except that under section 3, subdivision 1, group 15 of the act nurses employed in State or municipal hospitals are so classified,notwithstanding the definitions of the terms ‘ employment,’ ‘ employer ’ or employee ’ in subdivisions three, four and five of section two of this chapter.”

It does not follow that all who are engaged by a railroad corporation to render services are its employees within the meaning of the law. The relation both of employer and employee must exist as distinguished from that of independent contractor. (Matter of Beach v. Velzy, 238 N. Y. 100.) To come within the statutory definition of employee the person must be in the service of the employer. (Workmen’s Compensation Law, § 2, subds. 3, 4 and 5.) But a trained nurse called in on a special case is not in the service or the servant of the employer. She is a professional person like a physician, employed to exercise her calling to the best of her ability according to her own discretion, subject only to the general directions of the physician in charge of the case. (Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 130 et seq.)

The circumstance that nurses are subject to the general supervision of the physician in charge of the case and do not, like such physicians, act entirely on their own responsibility, has not led the court to distinguish between physicians and nurses in this regard. (Schloendorff v. Society of New York Hospital, supra.) They are regarded as especially equipped to render professional services to patients when called on to do so rather than as workmen. They are grouped with doctors and lawyers rather than with cooks and chambermaids.

This rule of relationship between employer and nurse is not limited in its application to charitable corporations, although it has often been applied to reheve such corporations from liability for the negligent acts of physicians and nurses employed by them in the treatment of patients. (Phillips v. Buffalo General Hospital, 239 N. Y. 188.) It rests on the fact that one who employs such a nurse to take care of an injured person undertakes, not to treat the employee through the agency of the nurse, but to procure a nurse for the special purpose for which her services are required. This is all that the railroad company did in this case. It procured the nurse, but it did not act through her in caring for the patient. She was left to act on her own responsibility under the general direction of the physician in charge of the case. Although she was, in a general sense, employed by the railroad company she was not its employee. She occupied the position of an independent contractor following her own calling rather than that of one in the service of the employer. The fact that she was employed by the railroad company rather than the hospital in no wise alters her status.

A distinction may be drawn between a special nurse and one who places her time and service at the call of her employer without regard to special cases (Matter of Bernstein v. Beth Israel Hospital, 236 N. Y. 268), but on the facts in this case the claimant is outside the terms of the Workmen’s Compensation Law and her claim must be dismissed.

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

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

Order reversed, etc.


text:
    Barnet Rifkin, Respondent, v. Ed Zit Holding Corporation, Appellant.
    (Argued October 7, 1930;
    decided October 14, 1930.)

      Benjamin Barondess for appellant.
    The variance between contract and deed, by reason of the condemnation, was trivial and inconsequential; hence, the performance tendered by defendant was substantial. A question of fact was presented for the determination of a trial court, and it was improper for the Appellate Division to hold, as a matter of law, that the variance was substantial. (Garibaldi v. Santangelo, 164 App. Div. 513; 221 N. Y. 673; Reife v. Osmers, 252 N. Y. 320; Kelly v. Brower, 55 Hun, 606; 132 N. Y. 539; Sauter v. Frank, 67 Misc. Rep. 657; Lighton v. City of Syracuse, 48 Misc. Rep. 134; Wilson v. Randall, 67 N. Y. 338; Johnson v. Taber, 10 N. Y. 319; Sprague v. Griffin, 22 App. Div. 223; Von Bargen v. Ginsberg, 218 App. Div. 545; Friedman v. Baron, 223 App. Div. 851; Raben v. Risnikoff, 95 App. Div. 68; Floeting v. Horowitz, 120 App. Div. 492; Stokes v. Johnson, 57 N. Y. 673; Heller v. Cohen, 154 N. Y. 309.)

      Samuel N. Caplow for respondent.
    Plaintiff’s motion to strike out the second defense and the two counterclaims was properly granted. The portion which defendant was unable to convey because condemned by the city was so substantial as to make it inequitable to compel plaintiff to take less than what he bought. (Friedman v. Baron, 250 N. Y. 552; Von Bargen v. Ginsberg, 218 App. Div. 545; 245 N. Y. 647; Raben v. Risnikoff, 95 App. Div. 68; Floeting v. Horowitz, 120 App. Div. 492; Siebel v. Cohen, 54 N. Y. Sup. Ct. 436; Garibaldi v. Santangelo, 164 App. Div. 513; Bostwick v. Beach, 103 N. Y. 414; Kelly v. Brower, 55 Hun, 606; 132 N. Y. 539.) Plaintiff’s motion for judgment on the pleadings was properly granted. (Vermeule v. City of Corning, 186 App. Div. 206; 230 N. Y. 585; Breeze v. Graves, 67 App. Div. 322; Hertzfeld v. Reinach, 44 App. Div. 326; Lee v. Rudd, 120 Misc. Rep. 407; Gass v. Arons, 131 Misc. Rep. 502; Wilkinson v. Medbury, 132 Misc. Rep. 58; Baird v. Daniel Co., 6 Fed. Rep. [2d] 27, 29.)
   Per Curiam.

Plaintiff contracted to purchase seventy-five vacant lots in an undeveloped section. Unknown to the parties the city of New York had become vested with title to a portion of five of the lots for the purpose of extending a street at the rear thereof. The question here is whether the fact that the defendant is unable to convey title to the small portion of the lots acquired by the city entitles the plaintiff to a lien for the down payment and deprives defendant of the right to specific performance. Is the variance between the quantity of land contracted for and the land described in the deed tendered to the plaintiff so substantial that a court of equity should refuse specific performance, or should the court decree specific performance with an allowance to the plaintiff on account of the reduced quantity of land? (Reife v. Osmers, 252 N. Y. 320.) The answer cannot be predicated upon the pleadings, but must be determined upon the evidence to be presented at a trial.

The judgment of the Appellate Division, entered upon its order of November 1, 1929, should be reversed, and the order of the Special Term affirmed, with costs in the Appellate Division and in this court.

The order of the Appellate Division dated February 15, 1929, should also be reversed in so far as it strikes out the defendant’s second defense.

Caedozo, Ch. J., Pound, Cbane, Lehman, Kellogg, O’Beien and Hubbs, JJ., concur.

Judgment accordingly.


text:
    Margaret Boehringer et al., Appellants, v. Edwin Schmid et al., Respondents.
    (Argued October 2, 1930;
    decided October 14, 1930.)

      Frank C. Brendel for appellants.
    The estate of tenancy by the entirety must be created by a conveyance from a third person, as husband and wife are one at common law. (Dressler v. Mulhern, 77 Misc. Rep. 476; Perrin v. Harrington, 146 App. Div. 292; Bambauer v. Schleider, 176 App. Div. 562; Reeves on Real Property, § 689; Tiffany on Real Property, § 194; Williams on Real Property, p. 358; Bertles v. Nunan, 92 N. Y. 152; Zorntlein v. Bram, 100 N. Y. 12; Hiles v. Fischer, 144 N. Y. 306; Grosser v. City of Rochester, 148 N. Y. 235.) The deed is null and void for want of proper parties. (Miller v. Collyer, 36 Barb. 250; 2 Clark on Contracts, § 666; Martin v. Wagner, 1 T. & C. 509; Howe v. Striker, 5 Misc. Rep. 309; Bishop on Contracts, § 318; Parsons on Contracts,

      § 2; Moses v. Lawrence County Nat. Bank, 149 U. S. 298; Matter of Lyon, 233 N. Y. 211.)

      George B. Doyle for respondents.
    The deed created a tenancy by the entirety. (Matter of Klatzl, 216 N. Y. 83; Matter of Hanler, 168 N. Y. Supp. 221; Matter of Farrand, 126 Misc. Rep. 590; Matter of Vogelsang, 122 Misc. Rep. 599; Matter of Dunn, 205 App. Div. 407; Matter of Greim, 183 N. Y. Supp. 149; Coon v. Campbell, 240 N. Y. Supp. 772.)
   Per Curiam.

Matter of Klatzl (216 N. Y. 83) must be regarded as conclusively holding that The creation of a tenancy by the entirety is permitted by law and a husband may by conveyance to himself and his wife create such a tenancy, thereby reserving to himself the same rights he would have under a deed from a third person.” Although Bartlett, Ch. J., concurred fin result only) in the opinion of Seabtjry, J., he said: “ * * * I see no reason why the husband could not convey to his wife such an estate as she would get by a similar deed to them from a third person, and at the same time reserve for himself the same rights he would have under such a deed.” This must be taken as a concurrence in the rule, if not in the reasoning, of Judge Collin’s opinion on this point.

The judgment should be affirmed, with costs.

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

Judgment affirmed.

I


text:
    Fred A. Gambold, as Executor of Charles S. Lamphear, Deceased, Respondent, v. George W. MacLean et al., as Executors and Trustees under the Will of Katherine L. MacLean, Deceased, Appellants.
    (Argued September 29, 1930,
    decided October 14, 1930.)

      )John A. V. Murphy for motion.

      Herman A. Gray opposed.
   Lehman, J.

The defendants have appealed as of right from a decision of the Appellate Division, modifying and affirming, as modified, a final judgment, entered in the court below, after a decision of the Appellate Division which unanimously affirmed an interlocutory judgment. The notice of appeal to this court from the final judgment states that the appellants intend to bring up for review the interlocutory judgment of the Supreme Court and the decision of the Appellate Division affirming that judgment. The respondent moves to dismiss the appeal so far as it attempts to bring up for review the interlocutory judgment and the decision of the Appellate Division affirming that judgment on the ground that this court has no jurisdiction to review said interlocutory judgment, decision, * * * or judgment for the reason that the said Appellate Division by a unanimous decision affirmed the said interlocutory judgment * * * and that no appeal has been allowed either by the Appellate Division or * * * the Court of Appeals.”

The Constitution of the State (Art. VI, § 7) has defined the jurisdiction of the Court of Appeals and the classes of cases in which an appeal may be taken, and it has provided that “ The Legislature may further restrict the jurisdiction of the Court of Appeals and the right of appeal thereto.” The Legislature in the Civil Practice Act, section 588, has provided for appeals in the classes of cases permitted by the Constitution. Other sections of the Civil Practice Act contain further provisions affecting appeals to this court. These sections cannot enlarge the constitutional restrictions upon the jurisdiction of the Court of Appeals and the classes of cases in which an appeal may be taken. Limitations . contained in the definitions of the classes of cases in which an appeal may be taken to this court, embodied by the Legislature in section 588 of the Civil Practice Act, in obedience to the mandate of the Constitution, must be read into any other sections of that act which in terms authorize an appeal to this court. So we held in Sultzbach v. Sultzbach (238 N. Y. 353).

Until a final judgment has been entered a judgment of the Appellate Division affirming an interlocutory judgment does not finally determine the action and no appeal to the Court of Appeals may be taken except “ where the Appellate Division allows the same.” (Civ. Prac. Act, § 588, subd. 4.) A complete determination of the validity of the final judgment entered in the court of original jurisdiction after the affirmance of the interlocutory judgment by the Appellate Division requires consideration of the correctness of both the interlocutory judgment and the proceedings taken after the interlocutory judgment has been affirmed by the Appellate Division. An appeal to the Appellate Division from a final judgment taken, after the interlocutory judgment has been affirmed, brings up for review “ only the proceedings to take the final judgment, or upon which the final judgment was taken.” (Civ. Prac. Act, § 619.) The Appellate Division may not again review the interlocutory judgment. If the aggrieved party complains only of the previous decision of the Appellate Division affirming the interlocutory judgment and seeks a review only of that decision, an appeal from the final judgment to the Appellate Division would be without purpose, except to create a conduit by which the decision of the Appellate Division, affirming the interlocutory judgment, might be brought to- this court for review. In such circumstances the aggrieved party may avoid the useless appeal to the Appellate Division by appealing from the final judgment directly to this court which then may review only the determination of the Appellate Division affirming the interlocutory judgment. (Civ. Prac. Act, § 590.)

Though the Constitution does not, in terms, permit an appeal direct to this court from a judgment of a court of first instance except as provided in article VI, section 7, subdivision 3, since upon an appeal to this court taken in accordance with section 590 of the Civil Practice Act, this court may review only the determination of the Appellate Division, we have regarded the appeal as one taken from such a determination. It follows that the right to appeal is subject to the constitutional and statutory restrictions which apply to all appeals from a decision of the Appellate Division. Where the decision appealed from is a unanimous affirmance it may be taken only by leave either of the Appellate Division or the Court of Appeals. (Sultzbach v. Sultzbach, supra.)

In the.case now under consideration the aggrieved party has chosen to appeal to the Appellate Division from the final judgment. That court has reviewed the proceedings upon which the final judgment was taken and has modified the final judgment. From the judgment entered upon the decision of the Appellate Division the aggrieved party may appeal as of right to this court as he may appeal from any other judgment entered upon a decision of the Appellate Division which finally determines an action “ where the judgment * * * is one of reversal or modification.” (Civ. Frac. Act, § 588, subd. 1.) Concededly, no restriction upon the right to appeal to this court contained in statute or Constitution qualify or condition that right. The question presented here is not whether the defendants have a right to appeal from the judgment of modification without leave previously granted, but whether upon that appeal this court is precluded from reviewing the unanimous decision of the Appellate Division affirming the interlocutory judgment which forms the basis of the final judgment appealed from.

Though upon the appeal to the Appellate Division from the final judgment its review was limited to proceedings taken after the affirmance of the interlocutory judgment, it is expressly provided by section 603 of the Civil Practice Act that on an appeal to the Court of Appeals from the determination of the Appellate Division upon the appeal from the final judgment, the determination of the Appellate Division affirming the interlocutory judgment * * * may, at the election of either party, be reviewed thereupon.” (See Redman v. Verplex Art Co., Inc., 237 N. Y. 475.) The right to elect to bring up for review an interlocutory determination of the Appellate Division, where an appeal is properly taken from a final judgment, is not expressly limited by any section of the Constitution or Civil Practice Act. We find no basis for any inference that the Legislature intended that limitations upon the right to take an appeal to this court are impliedly annexed to the right to bring up for review, upon an appeal from a final judgment, an interlocutory judgment which affects the validity of the final judgment. Certainly, nothing we said or decided in Sultzbach v. Sultzbach (supra) supports the respondent’s contentions.

The provisions of the Constitution and the Civil Practice Act which define the class of cases where an appeal may be taken by leave of the court are not in true sense restrictions upon the right of appeal, but are rather grants of such right. In a case where a judgment or order is entered upon a decision of the Appellate Division, which' finally determines an action or special proceeding, the appeal comes within the definition of the class of cases in which it may be taken as of right, if the judgment or order is one of reversal or modification.” (Civ. Prac. Act, § 588, subd. 1.) An appeal from a final judgment or order which is not appealable under subdivision one,” may be taken where leave to appeal is granted. (Civ. Prac. Act, § 588, subd. 5.) The provisions of the Constitution embodied in section 588 of the Civil Practice Act create mutually exclusive classes in which an appeal may be taken either of right or by leave of the court. The provision that an appeal may be taken from a final judgment or order which is not appealable as of right can constitute no limitation or restriction upon the previous definitions of those final orders or judgments which are appealable as of right.

An appeal may be taken as of right from every order or judgment entered upon the decision of the Appellate Division which finally determines an action or special proceeding “ where one or more of the justices * * * dissents from the decision of the court * * * or where the judgment * * * is one of * * * modification.” (Civ. Prac. Act, § 588, subd. 1.) The modification may have been in favor of the appellant; the dissent may have been confined to parts of the judgment or order by which he is not aggrieved. Prom such a judgment an appellant may appeal as of right, though the decision of the Appellate Division may constitute a unanimous affirmance of every part of the order or judgment appealed from by which the appellant is aggrieved. (Matter of City of New York [White Plains Road], 224 N. Y. 454; Bishop v. New York Times Co., 230 N. Y. 612; Boyce v. Greeley Square Hotel Co., 223 N. Y. 568.) The review of the judgment by this court upon an appeal taken as of right is no more restricted than if the appeal were taken by leave of the court.

' We can see no substantial distinction between a case where the Appellate Division has modified a final judgment entered after an interlocutory judgment was unanimously affirmed and a case where the Appellate Division has unanimously modified the final judgment upon an appeal in which the interlocutory judgment was brought up for review and approved by the court. In both cases the Appellate Division has unanimously affirmed the interlocutory judgment; in both cases a party aggrieved by the final judgment as modified may take an appeal to this court as of right; in both cases upon an appeal so taken either party may elect to bring up for review the interlocutory judgment which forms the basis of the final judgment.

The Constitution and the Civil Practice Act make provision, by which in proper cases leave to appeal may be granted where no appeal may be taken as of right. They make no provision by which leave to appeal may be granted by this court from any interlocutory judgment or order. By plain intendment and express language, subject to no implied restriction, the law provides that upon an appeal properly taken from a final judgment, this court shall, if an appellant so elects, review an interlocutory decision of the Appellate Division which affects the validity of the judgment from which the appeal is taken.

The motion to dismiss the appeal as to the interlocutory judgment should be denied, with costs.


text:
    Rose Farber, Respondent, v. Marie Demino, Appellant, Impleaded with Another.
    (Argued October 8, 1930;
    decided October 21, 1930.)

      Arthur N. Seiff for appellant.
    The trial justice improperly changed the jury’s verdict. (Foy v. Barry, 159 App. Div. 749; Holley v. Mix, 3 Wend. 350; Bulkeley v. Smith, 1 Duer, 643; O’Shea v. Kirker, 8 Abb. Pr. 69; Lee v. McLaughlin, 16 Civ. Pro. Rep. 151; Beal v. Finch, 11 N. Y. 128; Polsey v. Waldorf-Astoria, Inc., 216 App. Div. 86; Bonica v. Malone, 220 App. Div. 749; MacDonald
      v. Kusch, 188 App. Div. 491; Simpson v. Perry, 9 Ga. 508; Dougherty v. Dorsey, 4 Bibb [Ky.], 207; Nashville R. & Light Co. v. Trawick, 118 Term. 273; Warren v. Westrup, 44 Minn. 237; Whitaker v. Tatem, 48 Conn. 520; Washington Market Co. v. Clagett, 19 App. D. C. 12; Tyrrell v. Lockhart, 7 Blackf. [Ind.] 136; Fort Worth, etc., R. R. Co. v. Enos, 15 Tex. Civ. App. 673.)

      Arthur T. O’Leary for respondent.
    The verdict was correctly entered against both defendants for $1,000. (Post v. Stockwell, 34 Hun, 373; Polsey v. Waldorf-Astoria, 216 App. Div. 86; Wands v. City of Schenectady, 171 App. Div. 94; Schoat v. Marriott, 119 Misc. Rep. 92; MacDonald v. Kusch, 188 App. Div. 491.)
   Crane, J.

The plaintiff was injured while driving in the taxicab owned by Marie Demino, which came into collision with an automobile owned and operated by Gustav Albrecht. Action was brought against the two owners for joint negligence. The jury found for the plaintiff against the defendants $500 each, whereupon the judge addressed the jury as follows:

Gentlemen of the jury, you are still here. This verdict which you have rendered reads Negligence on the part of both defendants for $500 each.’ You intended that to mean that a verdict should be against each defendant .separately for $500? Is that the construction that you place upon it?

“ The Foreman: That is what we figured on it.”

Thereupon a judgment was entered for $1,000 against both defendants. The amount should have been $500. If the jury in assessing the plaintiff’s damages had brought in a verdict for the plaintiff for the sum of $500, the law would consider it as a verdict for $500 against each defendant. Under such a verdict each individual defendant is liable for the full amount until the plaintiff has received the amount awarded. Such a verdict would not mean that the plaintiff was entitled to $500 from each defendant, making a total of $1,000. The liability of joint tort feasors is the amount of the judgment, but when this is once satisfied, the liability of any of the defendants is at an end. That contribution may be had in a proper case under section 211-a of the Civil Practice Act does not affect this question. What the jury, therefore, stated in reply to the judge was the conclusion which the law itself placed upon their verdict—$500 for the plaintiff, for which each was liable.

If, however, we should consider this as an attempt upon the part of the jury to give two separate verdicts, one against Demino for $500 and one against Albrecht for $500, the weight of authority would lead us to conclude that the rule of de melioribus damnis appfied, and the judgment could only be entered for $500 against both defendants.

The application of this rule is more readily perceived if we assume that the jury had found a verdict against one defendant for $500 and against the other for $400. In such instances the courts have ruled that the plaintiff is entitled to the highest or best recovery as against all the defendants. Such was stated in Beal v. Finch (11 N. Y. 128, p. 135), and the rule appfied in Polsey v. Waldorf-Astoria, Inc. (216 App. Div. 86); Bonica v. Malone (220 App. Div. 749); Halsey v. Woodruff (9 Pick. [Mass.] 555); Rochester v. Anderson (1 Bibb [Ky.], 439); City of Birmingham v. Hawkins (196 Ala. 127); Simpson v. Perry (9 Ga. 508). (See, also, 30 American Law Rep. Anno. 790, 797.)

The judgment of the Appellate Division and that of the Trial Term should be modified by reducing the amount of the judgment to $500 and costs, and as so modified affirmed, with costs to the appellant in this court and in the Appellate Division.

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

Judgment accordingly.


text:
    Alex Thompson, Respondent, v. Orange and Rockland Electric Company, Appellant.
    (Argued October 1, 1930;
    decided October 21, 1930.)

      Abram F. Sevrin and Elwood C. Smith for appellant.
    Defendant has the right to maintain poles and wires in streets and highways under a franchise; plaintiff may not object to its reasonable use of the highway therefor, unless he has the fee. (People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528; Kellinger v. Forty-second St. R. Co., 50 N. Y. 206; Osborn v. Auburn Telephone Co., 189 N. Y. 393; People v. Kerr, 27 N. Y. 188; Peck v. Schenectady R. Co., 170 N. Y. 298.) Error was committed in determining that the condemnation proceedings did not vest the fee in the county. (Bradley v. Crane, 201 N. Y. 14; Mott v. Eno, 181 N. Y. 346; Sweet v. B., N. Y. & P. Ry. Co., 79 N. Y. 293; Jones v. Gardner, 10 Johns. 266; United States v. Hunter, 21 Fed. Rep. 615; Brooklyn Park Commrs. v. Armstrong, 45 N. Y. 234.) Error was committed in holding that the defendant had not the right to maintain the additional wires for municipal lighting or for furnishing light and power to consumers along the route of the pole line, without further compensation to plaintiff. (Eels v. Am. Tel. & Tel. Co., 143 N. Y. 133; Osborn v. Auburn Telephone Co., 189 N. Y. 393; Van Brunt v. Town of Flatbush, 128 N. Y. 50; Richards v. Citizens Water Supply Co., 140 App. Div. 206; Witcher v. Holland Water Works, 66 Hun, 619; 142 N. Y. 626; People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528; Hequembaurg v. City of Dunkirk, 49 Hun, 550; Palmer v. Larchmont Electric Co., 6 App. Div. 12; 158 N. Y. 231; Corrol v. City of Oswego, 207 App. Div. 883.)

      Elbert N. Oakes for respondent.
    The fee of the strip of land is still in the plaintiff and the condemnation proceeding did not operate to divest it. (Hudson & Manhattan R. R. Co. v. Wendel, 193 N. Y. 166; Appleton v. City of New York, 219 N. Y. 150; Bradley v. Crane, 201 N. Y. 14; Mott v. Eno, 181 N. Y. 346; Silver Beach Realty Corp. v. Geelan, 122 Misc. Rep. 644; United States v. Hunter, 21 Fed. Rep. 615; Roberts v. Wentworth, 5 Cush. [Mass.] 192; Matter of N. Y. & H. R. R. Co. v. Kip, 46 N. Y. 546.) A contract to light the streets does not entitle defendant, without making due compensation, to impose upon the streets the additional burden of wires for municipal purposes. (Palmer v. Larchmont Electric Co., 158 N. Y. 231; Eels v. Amer. Tel. & Tel. Co., 143 N. Y. 133.)
   Pound, J.

In the month of July, 1927, the county of Orange instituted condemnation proceedings under sections 148 and 150 of the Highway Law (Cons. Laws, ch. 25) to take from the plaintiff a strip of land, thirty-five feet wide on the westerly end, about fifty feet wide near the middle and running to a point on the easterly end, in the village of Harriman, containing .464 of an acre of land, for the purpose of changing the fine of an existing highway in the course of construction of a county highway known as Turner’s-Monroe County Highway, No. 46. The description of the land is by metes and bounds. The proceeding was concluded by a final judgment awarding plaintiff $4,500 for the land thus taken. The question is whether the county acquired the fee of such strip of land for highway purposes or an easement merely. If it acquired the fee, the defendant, a public service corporation, furnishing electricity, not only for lighting the streets of the village of Harriman but also for light and power to private consumers, may erect its poles and string its wires in the highway under proper public permits without making additional compensation to plaintiff. If it acquired an easement merely the highway is subject to street uses only and no new burden may be imposed on plaintiff’s land without, further compensation.

In this State a distinction is made between the burdens that may be imposed upon a road, urban or rural, when an easement over land is taken for a right of way for highway purposes and when the fee is acquired. When an easement is taken all uses of the land directly or indirectly conducive to the enjoyment of the public easement which the necessity and convenience of the public may require, either then or in the future, are not deemed to be paid for even though the landowners get practically the full value of their land. Only such uses as appertain directly or indirectly to the right of passage and tend in some way to preserve or make more easy the exercise of such right may be imposed upon the easement. For other uses, public and municipal in their character, the landowner is entitled to additional compensation. Thus the lighting of a highway has been held to be one of the burdens upon the fee which must be borne as an incident to the public right of traveling over the way. (Palmer v. Larchmont Electric Co., 158 N. Y. 231.) So as to sewers and water mains when connected with the use of the streets. But telegraph and telephone wires in no way improve the streets or aid the public in passing over them and are held to be an additional burden upon the fee. (Osborne v. Auburn Telephone Co., 189 N. Y. 393.) The same rule would apply to the distribution of electricity to private owners for light and power purposes. The use of the streets is not improved by the poles and wires placed therein.

If, however, the fee has been transferred to the municipality such municipality may grant the use of the highway for any public or municipal purposes not inconsistent with nor prejudicial to its use for street purposes. (Osborne v. Auburn Telephone Co., supra.) The distribution of electricity for light and power purposes is a public and municipal use but not a street use under these decisions.

No distinction can now be drawn between city streets and country highways in this regard. Farmers generally avail themselves of electric current whenever it is available. The electric light has taken the place of the tallow dip or the kerosene lamp. The electric motor has now been installed in lieu of man, woman or child power on so many farms as to be no longer a novelty. The distinction rests on the interest, if any, which remains in the adjacent landowner after the taking of a right of way for highway purposes.

Article 6 of the Highway Law, entitled State and County Highways,” has its origin in the development of a modern scheme of new or improved highways of sufficient public importance to constitute a part of a properly developed system of improved market roads either at State or county expense. It is broad and comprehensive. Such highways are no longer a matter of local consequence. Town highways are provided for by a separate article (Art. 8).

By section 148 of the Highway Law the board of supervisors “ shall acquire land for the requisite right of way ” for a State or county highway either by purchase (§ 149) or by condemnation. If unable to acquire land by purchase a petition may be presented to the court for the appointment of commissioners to determine “ the compensation to be paid to the owners of the land to be acquired ” (§ 150). When the commissioners file the oath of office “ The title to the lands described in the petition and map filed in the office of the county clerk shall vest in the county for the purpose of a highway forever ” (§ 152). The judgment in the condemnation proceedings herein reads as follows: Ordered, adjudged and decreed that the public use requires the condemnation of the real property described and that said condemnation is necessary and that plaintiff [the county of Orange] is entitled to take and hold the same.” Nothing in the statute or in the proceedings suggests that the county was limited in its powers to the acquisition of an easement or that the land acquired is less than the fee.

It is, however, urged that the law will not by construction effect a grant of a greater interest or estate than is essential for the public use; that the general rule is that when the language of the statute will bear a construction which will leave the fee in the landowner, such construction will be preferred; and, therefore, that we are bound to hold that the fee remains in the landowner (Bradley v. Crane, 201 N. Y. 14, 25), unless it is clear that it has been acquired by the county. The rule is properly applied in eases where the grant is limited to so much of the respective lands of the grantors as may be necessary for the said public road; ” where no specific lands are described in the instrument and where the measure of the grant was the necessity for the road.” When an easement is all that is necessary and is all that is described, conveyed or paid for this rule applies. On the other hand, when the description of the land taken is by metes and bounds and when a consideration of the need to be supplied points to a taking as broad as the language used in the judgment would imply, we should, if necessary, indulge in presumptions to uphold in its entirety rather than defeat or qualify the language of the judgment.

The extent of the appropriation, in the case of a highway, or of a street, whether of a public easement therein, or of the fee, is to be determined by the language used and upon a consideration of the need to be supplied.” (Mott v. Eno, 181 N. Y. 346, 366.) "A fee may be taken although the public use for which the land is to be taken is special and is not of necessity permanent or perpetual.” (Sweet v. Buffalo, N. Y. & P. Ry. Co., 79 N. Y. 293, 299.) The language used herein in the statute and the condemnation proceedings is sufficiently broad; the taking sufficiently definite; the purpose sufficiently plain; the consideration adequate to indicate a taking of the fee. The cities as a rule acquire title in fee to city streets and the tendency is away from the rustic rule of a mere right of way only.

By section 155 of the Highway Law, the board of supervisors may, where it has acquired land by purchase or condemnation as a right of way for a State or county highway, sell, convey, grant or lease to the owner or owners of property adjoining the same, so much thereof as may be unnecessary for such highway purposes. ’ ’ Without considering the question of the constitutionality of excess' condemnations (Cincinnati v. Vester, 281 U. S. 439), we take this language as significant of the legislative intent to provide for a taking of the fee for State and county highways. Otherwise a mere release of the easement would be all that was necessary.

When land specifically described by metes and bounds is taken for highway purposes without limitation on the nature of the taking; when the owner has been paid its full value and when the title has been vested in the public forever, it is more in keeping with modern concepts of the purpose of a highway to hold that it may be used, with public authority, for all public and municipal purposes not inconsistent with its use for street purposes, rather than to hold that the taldng is presumptively for street purposes as strictly understood when the rule was first formulated and that, therefore, any additional burden on the highway, customary and necessary though it may be as an incident to the public use, requires a new taking and additional compensation.

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

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

Judgments reversed, etc.


text:
    The People of the State of New York, Respondent, v. Phillip Pesky, Appellant.
    (Argued October 10, 1930;
    decided October 24, 1930.)

      K. Henry Rosenberg for appellant.

      Morris L. Ernst, amicus curiae.

      Thomas C. T. Crain, District Attorney (John C. McDermott of counsel), for respondent.
   Per Curiam.

This court is a court of review, restricted in cases of this order to a pronouncement of the law, and without power to act as a trier of the facts.

If those charged with the duty to pass judgment upon the facts might say not unreasonably that the book sold by the defendant was obscene, lewd or indecent beyond a reasonable doubt (Penal Law, § 1141), we are not at liberty to substitute our judgment for theirs, or to supersede their function as the spokesmen of the thought and sentiment of the community in applying to the book complained of the standard of propriety established by the statute.

A different question would be here if we could say as a matter of law that the writing is so innocuous as to forbid the submission of its quality to the triers of the facts. We cannot say that here.

The judgment should be affirmed.

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

Judgment affirmed.


text:
    North Sea Developments, Inc., Respondent, v. Egbert L. Burnett, Appellant.
    (Argued October 16, 1930;
    decided October 24, 1930.)

      Reginald Condon Smith and Robert P. Griffmg for appellant.

      Joseph H. Inness for respondent.
    Plaintiff is entitled to commissions on the sum bid on the judicial sale.
      (Meltzer v. Straus, 113 N. Y. Supp. 583; Morgan v. Calvert, 126 App. Div. 327; Gilder v. Davis, 137 N. Y. 504; Juhasz v. Kocor, 202 N. Y. Supp. 303; Crane v. Eddy, 191 Ill. 645; Coughlan & Co., v. Frankel, 216 App. Div. 565; 243 N. Y. 599.)
   Per Curiam.

The record presents a question of fact whether before the broker had earned any commissions he agreed that his compensation should be five per cent on payments as made on the contract and five per cent on the amount of the mortgage when title passes. Title to the property has never passed and the broker has received five per cent commissions on all payments made.

The bid made at the judicial sale was not a payment made under the contract.

The judgment of the Appellate Division and that of the Special Term should be reversed and the plaintiff’s motion for summary judgment denied, with costs in this court and in the Appellate Division and ten dollars costs of motion.

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

Judgment accordingly.


text:
    In the Matter of Ernest Adler, Respondent, against John R. Voorhis et al., Constituting the Board of Elections of the City of New York, et al., Appellants.

      (Argued October 28, 1930;
    decided October 28, 1930.)

      Arthur J. W. Hilly, Corporation Counsel (William E. C. Mayer and Charles Horowitz of counsel), for John R. Yoorhis et al., appellants.
    Chapter 651 of the Laws of 1930 is a valid and subsisting and constitutional legislative enactment. (People ex rel. Snyder v. Hylan, 212 N. Y. 236; Public Officers Law, § 30, subd. 7; Matter of Delehanty v. Britt, 163 App. Div. 736; 212 N. Y. 457; Matter of N. Y. & L. I. Bridge Co., 148 N. Y. 540; Lawton v. Steele, 119 N. Y. 226; Rathbone v. Wirth, 150 N. Y. 459; People ex rel. Alpha P. C. Co. v. Knapp, 230 N. Y. 48; Schieffelin v. Goldsmith, 253 N. Y. 243.)

      Edward S. Dore, Vincent L. Leibell and William J. O’Shea, Jr., for Frank A. Carlin et ah, appellants.
    Chapter 651 of the Laws of 1930 is constitutional. (N. Y. Const, art. VI, §§ 18, 19; Schieffelin v. Goldsmith, 253 N. Y. 248; Matter of Trounstine v. Britt, 212 N. Y. 421; People v. Metz, 193 N. Y. 148; People v. Rice, 135 N. Y. 473; People v. Van Allen, 55 N. Y. 31.)

      Leonard J. Obermeier for Republican candidates, appelants.
    Chapter 651 of the Laws of 1930 is valid and constitutional. (Matter of Markland v. Scully, 203 N. Y. 163.)

      N. William Welling for Francis E. Rivers et al., appellants.
    The newly-created vacancies in the office of Municipal Court justice may properly and constitutionally be filled at the November, 1930, election. (Loeb v. Columbia Township Trustees, 179 U. S. 472; New York Central R. R. Co. v. Williams, 199 N. Y. 108; People v. Knapp, 230 N. Y. 48; Schieffelin v. Goldsmith, 253 N. Y. 143.)

      Howard Hilton Spellman for Le Roy Campbell et al., appellants.

      Charles Recht, Samuel J. Rosensohn and Robert J. Rudner for respondent.
    Chapter 651 of the Laws of 1930 contravenes section 6 of article 12 of the Constitution of the State of New York. (Markland v. Scully, 203 N. Y. 198; People v. Fitzgerald, 180 N. Y. 269; Delehanty v. Britt, 163 App. Div. 524; 212 N. Y. 457; Matter of Schulte, 33 App. Div. 524; Matter of Trounstine v. Britt, 212 N. Y. 421; Mills v. Sweeney, 219 N. Y. 213.)
   Per Curiam.

The controversy in this case involves the determination of the validity of an act of the Legislature (Laws of 1930, ch. 651) which provides for the election of Municipal Court justices in the city of New York in an even-numbered year.

We think the act must be upheld.

Article XII, section 6, of the Constitution, in so far as it provides that all elections of judicial officers of inferior local courts, elected in any city or part of a city, except to fill vacancies, shall be held on the general election day in an odd-numbered year, and that the term of every such officer shall expire at the end of such a year, has been superseded by section 19 of article VI, the new Judiciary Article of the Constitution, which took effect January 1, 1926.

That section provides as follows: “ Except as in this article provided, all judicial officers shall be elected or appointed at such times and in such manner as the legislature may direct.”

The effect of this provision is to abolish all restraints upon the Legislature in fixing the times for the election of judges of inferior courts, except those restraints imposed by the Judiciary Article itself.

Until the revision of 1926, the subject now covered by section 19 was included in section 18, though not in the same words. The provision as then phrased was to the effect that all judicial officers were to be elected and appointed at such times and in such manner as the Legislature might direct, “ except as herein otherwise provided,” an exception which this court construed in Matter of Trounstine v. Britt (212 N. Y. 421, 429), as meaning “ otherwise provided in this Constitution.” The court pointed out that a different construction might be necessary if the section had read," except as otherwise provided in this article.” The very change there indicated as adequate to transform the meaning has now been made.

The change was not inadvertent. It was necessary for the accomplishment of the fundamental scheme and purpose of the new Judiciary Article. For the first time in the history of the State a place is now given in the Constitution itself to inferior local courts in cities or parts of cities. Article VI, section 14, prescribes the organization of the Court of General Sessions of the city and county of New York, thereafter to be known as the Court of General Sessions of the county of New York, and fixes the terms of office of the judges. Article VI, section 15, prescribes the organization of the City Court of the city of New York, a court which in the past had been governed by article XII, section 6 (Matter of Trounstine v. Britt, supra; Matter of Delehanty v. Britt, 212 N. Y. 457), and provides that five additional justices

thereof shall be chosen “ at the first general election following the adoption of this article ” (i. a., in November, 1926, an even-numbered year) and shall hold office for ten years, with the result that the terms of office will expire in even-numbered years (c/. Art. VI, § 16). The People of the State, in adopting the new Judiciary Article, have thus abandoned the rule that city judges shall be chosen in odd-numbered years, and that the terms of office of such judges must expire in such years. To make the meaning unmistakable, and to avoid fragmentary and haphazard survivals of the rule formerly enforced, they have said in sweeping terms that thereafter the Judiciary Article shall be taken to be complete and self-sufficient, and that the power of the Legisature to fix the time and manner of election and appointment shall submit to no restrictions except as there imposed. The power thus conferred is one incapable of coexisting with the continued operation of the restrictions hitherto enforced. There is nothing left of a discretion to fix the time of the election, if one time and one only, the date of the general election in an odd-numbered year, is to be adhered to in every instance as supplying an inexorable rule.

The truth indeed is that the classification of judges of city courts in the category of city officers was always an anomaly. They are not properly city officers, but members of the judicial system of the State (Whitmore v. Mayor, 67 N. Y. 21; Ledwith v. Rosalsky, 244 N. Y. 406, 411).

The conclusion is inescapable that they may be elected at such times and, subject to article VI, for such terms as the Legislature shall prescribe.

The order should be reversed and the application for a mandamus denied, without costs.

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

Order reversed, etc.


author: Cardozo, Ch. J.

text:
    Guerin Mills, Inc., Respondent, v. William M. Barrett, as President of the Adams Express Company, Appellant.
    (Argued October 1, 1930;
    decided November 18, 1930.)

      Branch P. Kerfoot for appellant.
    There was no agent of defendant to receive service of process on April 25. 1921. (Caledonia Coal Co. v. Baker, 196 U. S. 432; Hexter v. Day Elder Motors, 192 App. Div. 394; Lathrop-Shea & Henwood Co. v. Interior Const. & Imp. Co., 150 Fed. Rep. 666; Cady v. Associated Colonies, 119 Fed. Rep. 420; People v. Commercial Alliance, 7 App. Div. 297; Crutcher v. Kentucky, 141 U. S. 47.)

      H. Kirby Grafton for respondent.
    The defendant was properly served in the Rhode Island action. (Mutual Reserve Fund Life Assn. v. Phelps, 190 U. S. 147; Meixell v. American Motor Car Sales Co., 181 Ind. 153; Brown-Ketchum Iron Works v. Swift, 53 Ind. App. 630; Johnson v. Mutual Reserve Life Ins. Co., 45 Misc. Rep. 316; Lathrop-Shea & Henwood Co. v. Interior Const. & Imp. Co., 150 Fed. Rep. 666; Cady v. Associated Colonies, 119 Fed. Rep. 420; People v. Commercial Alliance, 7 App. Div. 297; Crutcher v. Kentucky, 141 U. S. 47; American Ry. Ex. Co. v. Kentucky, 273 U. S. 269; American Ry. Ex. Co. v. Royster Guano Co., 273 U. S. 274; Lafayette Ins. Co. v. French, 18 How. [U. S.] 404; St. Clair v. Cox, 106 U. S. 350.)
   Cardozo, Ch. J.

Plaintiff, the assignee of the Alsace Worsted Company, brings this action upon a judgment for $1,540.57 recovered by its assignor in the Superior Court of Rhode Island against the Adams Express Company, an unincorporated association organized under the laws of New York. The question to be determined is whether the Rhode Island court had jurisdiction of the person.

On May 3, 1918, and again on June 3, 1918, the defendant carrier received from the Alsace Worsted Company cases of merchandise to be carried from Woonsocket, Rhode Island, to Philadelphia, Pennsylvania. The merchandise was lost in transit.

On June 30, 1918, the carrier terminated its business as an express company, and transferred to the American Railway Express Company the property then belonging to it in Rhode Island and elsewhere. It did this in obedience to an order of the Director General of Railroads, who acted in accordance with a proclamation of the President of the United States. The order was made in furtherance of the prosecution of the war. The new corporation took over the property not only of the Adams Express Company, but also of the other express companies operating in the United States, and assumed their liabilities (American Railway Express Co. v. Royster Guano Co., 273 U. S. 274; American Railway Express Co. v. Kentucky, 273 U. S. 269).

On December 23,1916, the defendant express company, while engaged in business in Rhode Island, filed in the office of the Secretary of State a power of attorney appointing an agent to accept service of process in its behalf. The appointment by its terms was to continue in force for the period of time and in the manner provided by * * * the General Laws of Rhode Island, 1909, and until another attorney shall be substituted and appointed.”

On September 5, 1919, more than a year after withdrawal from the State, the express company filed in the same office a written revocation of any and all authority theretofore conferred upon its agent.

On April 25, 1921, nearly two years after the revocation of the agency, the Alsace Worsted Company served upon the agent a writ or summons in an action against the defendant carrier to recover the value of the merchandise lost in transit. The carrier appeared specially for the sole purpose of vacating the service and contesting jurisdiction. Its objection was overruled, and judgment by default followed. The judgment so rendered is the one on which the plaintiff sues.

The power of attorney, in so far as it was merely a common-law appointment of an agent, was without vitality after the filing by the principal of the notice of revocation (Restatement of the Law of Agency, American Law Institute, §§ 180, 181). If vitality continued, it must have been by force of some obligation laid upon the carrier by the mandate of a statute. The plaintiff maintains that a statute intended to impose that obligation exists, and that it is binding on the defendant even as an interstate carrier. The defendant denies that the statute was intended to continue the agency in force after the cessation of the business of the principal, and maintains that even if so intended it is void in any event in its application to commerce between the States. Upon the question of construction, the Superior Court held that the agency survived the cessation of business so long as there were existing causes of action that ha d their origin in business previously done. Upon the question of power, it held that the continuance of the agency after the cessation of business and notice of revocation did not lay an undue burden on interstate commerce.

The statute of Rhode Island (General Laws of 1909, ch. 189) provides that no foreign corporation or non-resident person or copartnership shall transport or engage in the transportation of any goods, wares, merchandise or parcels of any description within the State of Rhode Island until such corporation, person or copartnership shall have complied with the conditions thereby imposed. The conditions are that there shall be filed with the Secretary of State a written power of attorney appointing a citizen of Rhode Island an agent to accept service of process in like manner as if such corporation had existed or such person or the members of such copartnership had been residents of and had been duly served with process within the state; that in case of the death, resignation or removal of the agent, a new appointment shall be made; and that no such power of attorney shall be revoked until after a like power to some competent person shall have been given and filed. With the power of attorney there must be filed a copy of the charter of the corporation or a list of the names and places of residence of all the members of the copartnership. Any person, corporation or copartnership violating any of the provisions of the statute is to forfeit five hundred dollars.

For the purpose of this appeal we assume, in deference to the holding of the Superior Court, that as to causes of action growing out of business transacted in Bhode Island the statute is to be read as continuing the agency though the business is at an end and the non-resident corporation or association has given notice of revocation and has withdrawn to its home. We assume, too, that in so far as the business so transacted is intrastate in character, the prolongation of the appointment is within the power of the State. In saying this, we pass over possible distinctions, even in respect of business of that order, between conditions applicable to corporations, or to joint stock associations, which may be quasi-corporations (Hemphill v. Orloff, 277 U. S. 537; People ex rel. Winchester v. Coleman, 133 N. Y. 279, 281), and those applicable to natural persons (Flexner v. Farson, 248 U. S. 289; Hess v. Pawloski, 274 U. S. 352). If all this be assumed, a different question arises when the creation of an irrevocable agency to accept service in any suit that may be brought against a resident is a condition of the privilege to engage in interstate commerce.

The Adams Express Company was an interstate carrier, and the merchandise lost in transit was an interstate shipment. A statute denying to such a carrier the right to engage in interstate business in the State of Bhode Island except upon compliance with a preliminary condition that in respect of service of process it must put itself in the same position as if it were a resident is a denial of a privilege secured to it by the Federal Constitution (U. S. Const, art. I, § 8; art. IV, § 2; Western Union Tel. Co. v. Kansas, 216 U. S. 1, 27; Davis v. Farmers’ Co-op. Equity Co., 262 U. S. 312; International Text Book Co. v. Tone, 220 N. Y. 313). Such a condition this statute has attempted to impose. There is more than the imposition of a duty, to be sanctioned, if it is not discharged, by the imposition of a fine. There is notice to the carrier that unless the condition is fulfilled, the right to do business will be forfeited altogether (Sioux Remedy Co. v. Cope, 235 U. S. 197; St. Louis Southwestern Ry. Co. v. Arkansas, 235 U. S. 350, 364, 365; International Text Book Co. v. Tone, supra, at p. 319). The statute would not be saved, however, if it were to be read as establishing a regulation rather than a true condition (cf. Lafayette Ins. Co. v. French, 18 How. [U. S.] 404; Connecticut Mut. Life Ins. Co. v. Spratley, 172 U. S. 602; Commercial Mut. Acc. Co. v. Davis, 213 U. S. 245, 255). This is so because even in that view the regulation is too broad. The carrier is directed under penalty of a fine, if not under that of exclusion from the State, to consent that it be served in every case in which it could be served if a resident. The Supreme Court has held that in respect of interstate commerce a non-resident corporation is not subject to suit, even though process be served on one who is a true agent, unless the cause of action grows out of the business transacted within the territory of the forum (Davis v. Farmers Co-op. Equity Co., supra; Michigan Cent. R. R. Co. v. Mix, 278 U. S. 493). In the power of attorney exacted by the statute of Rhode Island, no distinction is permitted between causes of action of one origin and causes of action of another. The consent is to be as broad as the range of possible litigation (Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U. S. 93).

The defendant carrier did not lose the right to terminate the agency by yielding for a time to the mandate of the Legislature and fifing a power of attorney as comprehensive as the statute. It might have stood upon its rights and refused to make any appointment except one confined to intrastate business. If it chose to do more, the appointment to the extent of the excess was a common-law appointment of an agent, resting upon consent, and, like any other such appointment, subject to recall. The recall became effective when revocation was announced. From that time on, .the designation had spent its force in so far as it had virtue as a consensual act. Whatever virtue it retained, could have no source thereafter except the obligation, if any, inhering in the statute. The obligation failing, the revocation becomes effective according to its terms.

Nothing inconsistent with these views was held in American Railway Express Co. v. Royster Guano Co. (273 U. S. 274) or in American Railway Express Co. v. Kentucky (273 U. S. 269). In the first of these cases the transaction was one in intrastate commerce. The facts are stated fully in the opinion of the Court of Appeals of Virginia (141 Va. 602). What was said by McReynolds, J., in the Supreme Court must, of course, be read in the fight of that fundamental distinction. To this it must be added that the power of attorney was not exacted as a condition, and was not so broad as to subject the carrier in express terms to the liability of a resident. In the second case the decision was merely to the effect that the American Railway Express Company, the grantee of the defendant’s property, assumed its liabilities.

Indecisive also are such cases as Mutual Reserve Fund Life Assn. v. Phelps (190 U. S. 147, 158) and Hunter v. Mutual Reserve Life Ins. Co. (218 U. S. 573). In these, as well as in others of like tenor, the court was dealing with corporations engaged not in interstate commerce, but in the business of insurance (cf. Fidelity & Deposit Co. v. Tafoya, 270 U. S. 426, 434).

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

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

Judgments reversed, etc.