text:
    John A. Fitzpatrick, Respondent, v. International Railway Company, Appellant.

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

      Edward E. Franchoi and John J. K. Caside for appellant.
    Prejudicial error was committed by the trial court in charging that the burden of proving contributory negligence was upon the defendant. (Wagner v. International Ry. Co., 232 N. Y. .176; Morrow v. Canadian Pac. Ry. Co., 21 Ont. App. 149; Forwood v. Toronto, 22 Ont. 351; Kiefer v. Grand Trunk R. Co., 12 App. Div, 28; 153 N. Y. 688; Wooden v. Western N. Y. & P. R. Co., 126 N. Y. 10; Colucci v. Lehigh Valley R. R. Co., 121 Misc. Rep. 758; Sapone v. N. Y. C. & H. R. R. R. Co., 130 Misc. Rep. 755; Sackheim v. Pigueron, 215 N. Y. 62; Campbell v. N. Y. Evening Post, 245 N. Y. 320; Johnson v. Phœnix Bridge Co., 197 N. Y. 316; Ackerman v. Ackerman, 200 N. Y. 72; Sharrow v. Inland Lines, 214 N. Y. 100; Hutchinson v. Ward, 192 N. Y. 380; Jacobus v. Colgate, 217 N. Y. 235.) There was error in the manner in which the plaintiff was permitted to conduct his case in respect of the proof of the law of the Province of Ontario, and in the manner in which the jury was permitted to pass upon questions of law. (Russian Reinsurance Co. v. Stoddard, 211 App. Div. 132; Mance v. Hossington, 205 N. Y. 33; Rothenberg v. Filarski, 30 Misc. Rep. 610; Matter of Affleck, 155 App. Div. 339; Matter of Atkinson, 192 App. Div. 427; Baylies Trial Practice [2d ed.], 292; Anderson v. R., W. & O. R. Co., 54 N. Y. 334; Church v. Howard, 79 N. Y. 415; German Am. Bank v. Slade, 15 Misc. Rep. 29; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Fluker v. Ziegele Brewing Co., 201 N. Y. 40.) There was no warrant for the court’s decision that disputes as to correctness of legal principles- and their application to the particular facts should be submitted to the jury for its determination. (Bank of China v. Morse, 168 N. Y. 458; Hanna v. Lichtenhein, 225 N. Y. 579; O’Rourke v. Cunard Steamship Co., 169 App. Div. 943; Reilly v. Steinhart, 174 App. Div. 265.) The court erred in permitting the jury to construe and determine the meaning of a written instrument, namely, the order of the Ontario and Municipal Board. (Bank of China v. Morse, 168 N. Y. 458; Hanna v. Lichtenhein, 225 N. Y. 579; O’Rourke v. Cunard Steamship Co., 169 App. Div. 943; Reilly v. Steinhart, 174 App. Div. 265; Ufford v. Spaulding, 156 Mass. 65; Compania Transcontinental DePetrolio v. Mexican Gulf Oil Co., 292 Fed. Rep. 846.)

      Hamilton Ward and Harold J. Tillou for respondent.
    The trial court committed no error in placing the burden of proof of contributory negligence upon the defendant. (Davidson v. Schermerhorn, 1 Barb. 480; Davidsen v. Morse Dry Dock Co., 235 N. Y. 439; Central Vermont R. R. Co. v. White, 238 U. S. 507; Inland, etc., Co. v. Tolson, 139 U. S. 551; Robins Drydock v. Dahl, 266 U. S. 449; Kiefer v. Grand Trunk R. R. Co., 12 App. Div. 28; Amour & Co. v. Carlas, 142 Fed. Rep. 721; Jacobus v.
      Colgate, 217 N. Y. 235; Ackerman v. Ackerman, 200 N. Y. 72; Shannon v. Inland Lines, 214 N. Y. 100; Danser v. Gulf, etc., Co., 45 Sup. Ct. Rep. 613; Hutchinson v. Ward, 192 N. Y. 380; Campbell v. New York Evening Post, 245 N. Y. 320.) No error was committed in respect to the proof of the law of the Province of Ontario or in the manner in which the jury was permitted to pass upon the same. (Civ. Prac. Act, § 391.)
   Crane, J.

The International Railway Company is a domestic corporation owning, maintaining and operating an electric street surface railroad in various parts of the United States and Canada, and at the time here in question owned and maintained a line of tracks upon the westerly side of the Niagara Gorge at Niagara Falls, Ont. Under an agreement with the Niagara Gorge Railroad Company these tracks were used by this latter company for the operation of its own cars in running a scenic road around the Niagara Gorge. The duty of maintaining the tracks and roadbed rested upon the International Railway Company, a duty regulated by the public authorities, as will hereafter appear. In the operation of its scenic route, the Niagara Gorge Railroad Company, at times, ran two cars hitched together, in charge of a conductor and an assistant, besides the motorman. The first car contained the power machinery, the second car was a trailer, partially controlled by the assistant who sat in the first seat of the car to operate the brakes. These were open cars with side steps which could be raised and lowered. For about a mile of this railway on the west side the cars ran very near to the edge of the gorge so that the passengers had an opportunity of seeing the wonders of nature below. The poles maintained by the defendant for its overhead wires were also on the gorge side of the railroad for this mile, that is, they were between the tracks and the edge of the gorge, at some places so near to the cars as they passed that the steps were raised and the guard rail lowered to protect the passengers from getting out on that side or from falling out.

The plaintiff was a young man, twenty-three years of age, attending college at the University of Pennsylvania, who, in the summer time, obtained employment with the Shredded Wheat Company of Niagara Falls to obtain money to pay his college expenses. Saturdays and Sundays, the rush days, he got a job with the Niagara Gorge Railroad Company to act as assistant to the conductor in charge of the brake on the trailer or rear car of the two that made the trip around the gorge. On August 23d, 1925, as the cars were running through this narrow belt of a mile or more near the edge of the gorge on the westerly side, the conductor in charge of the cars, a man named Culp, was standing on the rear platform of the forward car near the right-hand edge trying to adjust the trolley pole or hold it in place as the cars speeded round a curve. He was bending out backwards toward the side of the car when his head came in contact with a pole of the defendant company sweeping him off the car. The plaintiff, sitting almost directly behind him in the front seat of the trailer near the brake handle, immediately sprang up and instinctively grabbed for the conductor to save him, if possible, with the result that both Culp and Fitzpatrick were carried off and beneath the cars, Fitzpatrick being mutilated for life.

We need not dwell at length upon the negligence of the defendant as it became a question of fact not reviewable in this, court. The points which we must touch upon do not involve the defendant’s negligence. The International Railway Company maintained the pole causing the damage as one of its overhead line poles within a distance of about twelve inches from the step of the trolley cars as they went by. This was unnecessary as.there was a distance of about sixteen and one-half feet between the outside rail and the edge of the gorge, in any portion of which the pole might have been placed. By section 104, chapter 185 of the Revised Statutes of Ontario, 1914, the Railway and Municipal Board of the Province of Ontario was given power to make orders and regulations regarding the maintenance and operation of these lines of railway. By order of May 26th, 1916, the Board made the following order:

(14) That the railway from Queen Street in the Village of Queenston to the river dock be reconstructed with a safety switch, and with altered grades and curves, in accordance with the plan approved by the Board, and filed in the office of the Board, a copy of which has been delivered to the company;

(15) Where the trolley wire is carried on span wires, the trolley poles supporting the span wires shall be erected and maintained at a minimum, distance of seven feet from the centre fine of the nearest track, such distance to be measured to the face of the trolley pole nearest the track; provided that where this is impracticable owing to the proximity of the railway to the cliff the Board may permit a trolley pole or poles to be erected nearer the centre fine of the nearest track; ”

The legal experts called to testify as to the foreign law differed in their views as to the application of these rules and ordinances under the Ontario law, to which reference will be made later. The fact that the International Railway Company was bound to obey these rules, and could have placed its pole further back from the railway, was, without doubt, the chief element of the defendant’s negligence.

With this brief statement of the nature of this case, we will pass to the consideration of the two main points raised by this appeal.

Chapter 32 of the Laws of Ontario, 1924, known as the Contributory Negligence Act, provided as follows: “3. In any action or counterclaim for damages hereafter brought, which is founded upon fault or negligence, if a plea of contributory' fault or negligence shall be found to have been established, the jury, or the judge in an action tried without a jury, shall find:—

“First: The entire amount of damages to which the plaintiff would have been entitled had there been no such contributory fault or neglect;

“ Secondly: The degree in which each party was in fault and the manner in which the amount of damages found should be apportioned so that the plaintiff shall have judgment only for so much thereof as is proportionate to the degree of fault imputable to the defendant.

“ 4. Where the judge or jury finds that it is not, upon the evidence, practicable to determine the respective degrees of fault the defendant shall be hable for one-half the damages sustained.”

The trial judge charged that the burden of proving contributory negligence was upon the defendant and submitted to the jury questions of fact in accordance with this Ontario statute, whereby the jury found the plaintiff guilty of contributory negligence to a degree of ten per cent.

On this appeal the appellant insists that this charge, in reference to the burden of proof, is wrong, for the reason that the law of the State of New York should govern and not that of the Province of Ontario; it claims that the burden of proof of freedom from contributory negligence, in a common-law action such as this, rests upon the plaintiff in New York State and that as the rule regarding the burden of proof is but a rule of procedure and not a matter affecting a substantial right, the law of the forum and not the law of the place of occasion should govern. In this the appellant is wrong according to reason and authority.

While it is true that in this State we speak of the proof of freedom from contributory negligence as being a burden of proof resting upon the plaintiff, it is, in reality, even here, more than a mere burden of proof, it is a substantive part of the plaintiff’s right to recover. At common law a person has no cause of action for negligence, if he himself has contributed, in the slightest degree, to bring it about. A defendant’s negligence is not sufficient to justify a recovery. Two elements are necessary, the defendant’s negligence being one, the plaintiff’s freedom from contributory negligence the other. The right to recover depends upon the plaintiff establishing both these elements, the defendant’s negligence and also his own freedom from contributing negligence. Other jurisdictions have a different rule, placing the burden of establishing contributory negligence upon the defendant. Such is the rule in the Federal courts. (Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, at p. 557.) But whether the plaintiff has the burden in the first instance of proving freedom from contributory negligence or the defendant the burden of proving contributory negligence, the substantive right to a recovery remains the same; the slightest contributory negligence upon the part of the plaintiff, no matter how or by whom it may be proven, bars recovery; establishes that there is and was no cause of action, no right to damages.

The Contributory Negligence Act of Ontario does more than touch or affect a matter of procedure; it goes beyond directing who shall first proceed to prove that, the act of the defendant was solely responsible for the act or the damage. The act gives a right to recover not recognized by the common law. It provides that even if the plaintiff be guilty of contributory negligence he may yet recover, if the defendant were more negligent, the recovery, however, being limited to the surplus degree of negligence, as figured out by a jury. The law of the State of New York has no application under such circumstances; it is impossible of application. As a mere matter of procedure, the plaintiff here must prove his freedom from contributory negligence but if in his proof he fails to establish his freedom from contributing neglect or shows that he was neglectful, his complaint must be dismissed. He has no cause of action. If the Ontario act had merely dealt with this order of proof or burden of proof, and provided that the defendant, in common-law actions for negligence, had the burden of proving the plaintiff’s contributory negligence, we would have another question. There would then be the same substantial right as at common law, the change merely being in the procedure at the trial or in the burden of proof. Under such circumstances our courts might feel called upon to apply our own rule. (Campbell v. New York Evening Post, Inc., 245 N. Y. 320, at p. 324.) This point, however, we need not pass upon at this time. As we have said, the Ontario act goes beyond a matter of procedure and gives a right unknown to the common law, the right of an injured person to recover for another’s negligence, even though contributing, by his own neglect to bring it about. For these reasons the trial court was quite correct in charging the jury in accordance with the Ontario statute.

The appellant suggests that as this act does not refer to the burden of proof, the plaintiff, under our form of procedure, should have the burden of proving either freedom from contributing negligence or else the degree to which his own negligence contributed. We have no such law in this State. To follow the appellant’s suggestion would still require our courts to adopt a portion of the Ontario statute. If we are to adopt a part we must apply it as a whole, because it affects the substantial rights of the parties. Under our rule, it would be impossible for the plaintiff to prove his own contributing neglect, without proving himself out of court, as we have no comparative negligence rule for actions at common law. As has been stated more than once, this action is under the Ontario statute.

Furthermore, the courts of this State are not unaccustomed to the application of the law of contributing negligence adopted by the Ontario act. We have a similar provision under section 3 of the Federal Employers’ Liability Act (Act of April 22, 1908, 35 Stat. at Large, 66, ch. 149). Although the acts of Congress form part of the laws of the State of New York (Central Vermont Ry. Co. v. White, 238 U. S. 507), unlike the laws of Ontario, yet the application, when it is to be made, is very much similar in both instances. The burden of proof has also been shifted in death cases. (Decedent Estate Law [Cons. Laws, ch. 13], § 131.) Under the Workmen’s Compensation Law (Laws of 1922, ch. 615, § 11; Cons. Laws, ch. 67) if an employer fails to insure his employees, the employee may maintain an action in the courts for damages on account of an injury received. Not only shall it be unnecessary to plead or prove freedom from contributory negligence, but even the defense of contributory negligence may not be pleaded. (See, also, Danielsen v. Morse Dry Dock & Repair Co., 235 N. Y. 439, as to the rule under the maritime law and our previous State Labor Law.) Jacobus v. Colgate (217 N. Y. 235) may be consulted for an explanation of the difference between rights and remedies, the former pertaining to the law of the place of occasion and the latter to the law of the forum. (See, also, Duggan v. Bay State Street Ry. Co., 230 Mass. 370.) The acts giving a right of recovery for negligence causing death generally contain a time limitation. These short Statutes of Limitations of foreign jurisdictions have been applied by our courts as constituting a condition or part of the right or cause of action. (Johnson v. Phœnix Bridge Co., 197 N. Y. 316.)

Another point raised by the appellant relates to the charge of the court regarding the law of Ontario. The court apparently left it to the jury to determine the law of Ontario, including the construction of the statutes and the court decisions as explained by the experts. Section 15 of the Board’s order of May 26th, 1916, provided that the trolley poles supporting span wires shall be erected and maintained at a minimum distance of seven feet from the center line of the nearest track. The pole which Culp, the conductor, struck was nearer to the track than seven feet. It was within twelve inches of the step of the car. The pole, however, had been erected long before May 26th, 1916, the date of the order. Experts attempted to explain the meaning of section 15. Mr. Proudfoot, a barrister of Toronto, in behalf of the plaintiff, testified that this order of the Railway Board applied to equipment and to railways theretofore existing as well as to railroads constructed and poles erected thereafter. Mr. Grant, another barrister of Toronto, in behalf of the defendant, said that the International Railway Company had a vested or property right which could not be affected by the order.

Mr. Proudfoot, also in behalf of the plaintiff, testified that the law of rescue as applied to negligence cases in Canada was similar to that of New York State as stated in Wagner v. International Ry. Co. (232 N. Y. 176), expressing it as follows: “ As I read the law of Ontario the question is whether the man under the circumstances acted as a reasonable man would do * * * ” taking “into consideration the fact that the man acted in an emergency, acted on impulse and would naturally not exercise the same amount of care as if he had time to reflect upon what he was doing.” Fitzpatrick, we will recall, jumped for Culp, the conductor. The questions arising in the case were whether Fitzpatrick was guilty of contributory neglect in trying to rescue Culp and whether he was chargeable under such circumstances with Culp’s negligence, if any. We need not specify all the instances in which these experts on the foreign law testified. The point raised by appellant is that the court should not have submitted all these questions to the jury. With this we agree. The difficulty with the appellant’s position is, however, that the trial counsel did not attempt to separate the questions of law for the court and the questions of fact for the jury by any proper request.

When it becomes necessary to establish the law of a foreign country it must be proved as facts are proven, but when, after such proof is given, the questions involved depend upon the construction and effect of a statute or judicial opinion, those questions generally are for the court and not questions of fact at all. (Bank of China, etc., v. Morse, 168 N. Y. 458.) In Hanna v. Lichtenhein (225 N. Y. 579) this court said: On a trial of an issue of fact when the evidence furnished is conflicting or inconclusive the law of a foreign State may be a question for the jury although ordinarily when the evidence is all furnished it is the function of the judge to decide as to the law of a foreign State.” These rules, however, like many others, are easier stated than applied. Events test • our theories and tax our philosophy. A look at the cases indicates that it is not always easy to separate the functions of the court and the functions of the jury in this particular. We have in our Civil Practice Act, section 391, reading as follows: The unwritten or common law of another state, or of a territory, or of a foreign country, may be proved as a fact by oral evidence. The books of reports of cases adjudged in the courts thereof must also be admitted as presumptive evidence of the unwritten or, common law thereof.” This provision is taken from section 942 of the former Code of Civil Procedure. Greenleaf on Evidence (§ 486) says: “ The better opinion seems to be, that this proof [of foreign laws] must be made to the Court, rather than to the Jury,” and he quotes from Mr. Justice Story’s Conflict of Laws the following: “ For all matters of law are properly referable to the Court, and the object of the proof of foreign laws is to enable the Court to instruct the Jury what, in point of law, is the result of the foreign law to be applied to the matters in controversy before them. The Court are, therefore, to decide what is the proper evidence of the laws of a foreign country; and when evidence is given of those laws, the Court are to judge of that applicability, when proved, to the case in hand.” Hansen v. Grand Trunk Ry. Co. (78 N. H. 518, at p. 521); Christiansen v. Graver Tank Works (223 Ill. 142, at p. 151); Charlotte v. Chouteau (25 Mo. 465, at p. 474; S. C., 33 Mo. 194) went quite far in extending the duty of the court, while a more conservative rule has been stated in such cases as Electric Welding Co., Ltd., v. Prince (200 Mass. 386, at p. 390) and Hite v. Keene (149 Wis. 207, at p. 215). In the former case we have the rule stated as follows:

The proof of the law of a foreign country may be by the introduction in evidence of its statutes and judicial decisions, or by the testimony of experts learned in the law, or by both. If the law is found in a single statute or in a single decision, the construction of it, like that of any other writing, is a question of law for the court. * * * ‘ Where the law is to be determined by considering numerous decisions which may be more or less conflicting, or which bear upon the subject only collaterally, or by way of analogy, and where inference may be drawn from them, the question to be determined is one of fact, and not of law.’ ” In the Wisconsin case the court said: Where the only proof of a foreign law is some statute which has been offered in evidence, a number of courts hold that its construction is for the court. But where * * * oral testimony is taken in which there is a sharp conflict and where the case must practically be decided upon this oral testimony, the authorities are well nigh harmonious to the effect that the disputed question of fact presents a jury question in a case triable by a jury, and not one that can be taken from the jury and be decided by the court.” This case also calls attention to the authorities which hold that judicial opinions, like statutes, are to be construed by the court.

All of the authorities agree that the construction of foreign statutes is a matter for the court and that their meaning should not be left to the jury as a question of fact. Such, no doubt, would also be the rule regarding orders of official bodies," having the force of law, that is, having the force of statute law. But how about court decisions? When these state the unwritten law of the foreign jurisdiction with reasonable certainty and clearness their application should not be left to the speculation of twelve men. If instances should arise, which will be rare, where the decisions are so perplexing or doubtful that experts disagree on the law we shall have to determine whether the question of the foreign law must then be solved by the jury. How the jury can do this as well as the judge, experienced in the law, I cannot quite appreciate. Personally, I am in sympathy with the expressions found in O’Rourke v. Cunard Steamship Co., Ltd. (169 App. Div. 943), and with Professor Wig-more’s statement in section 2558 of his work on Evidence, to the effect that “ the only sound view, either on principle or on policy, is that it [foreign law] should be proved to the judge, who is decidedly the more appropriate person to determine it.”

However, applying the law as we find it in the decisions, the judge in this case should have told the jury the meaning and application of the order of the Railway and Municipal Board. If there was no substantial dispute or question as to the unwritten law as found in the decisions of the Ontario courts introduced in evidence he should also have given this law to the jury and told them to apply it. The appellant we find is not in a position to raise these questions or to complain of the result reached by the jury. The jury’s finding is in accordance, at least, with what the court should have charged as a matter of law regarding the Ontario statutes and regulations. Moreover, while the counsel took an exception to the charge of the court he made no requests embodying what he considered to be questions of law for the court and questions of fact for the jury. It is a fair procedure to require counsel to specify the objections to a charge by making a request calling attention to the alleged error so that it may be corrected then and there. And again, when the jury returned, late in the afternoon, and made a request for a further charge as to the application and meaning of the Ontario law and the orders of the Railway Board, counsel acquiesced in the charge which was a repetition of that previously given and took no exception to it.

Much time and effort have apparently been given by counsel in their very full briefs to discussing the question of assumption of risk. As this is not a master and servant case, we doubt whether the question is presented, but even so, no court could say that Fitzpatrick, as a matter of law, assumed the risk of the dangers arising out of the International Railway Company’s lay-out of tracks.

The judgment below should be affirmed, with costs.

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

Judgment affirmed.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    George B. Herder et al., Appellants, v. Clifton C. Clifford, Respondent.

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

      Michael J. Larkin, Ward J. Cagwin and Leland N. Wood for appellant.
    No accord and satisfaction was established. (Reilly v. Barrett, 220 N. Y. 170; Larcy v. Hogan & Sons, 239 N. Y. 298; Kromer v. Heim, 75 N. Y. 574; Jacobs v. Day, 5 Misc. Rep. 410; Habgood v. Van Dyke T. & T., Inc., 128 Misc. Rep. 884; Beran v. Tradesmen’s Nat. Bank, 137 N. Y. 450; Randell v. Vanderbilt, 75 App. Div. 313; John v. Coe-Stapley Mfg. Co., Inc., 201 App. Div. 704; Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58.) No estoppel or bar was established. (Rudd v. Cornell, 171 N. Y. 114; Shaw v. Broadbent, 129 N. Y. 114; Converse v. Sickles, 146 N. Y. 200; Brown v. Cleveland Trust Co., 233 N. Y. 399; Webb v. Buckelew, 82 N. Y. 555; Bell v. Merrifield, 109 N. Y. 202; Johnson v. Antonopoulos, 213 App. Div. 324; U. S. Fire Ins. Co. v. Adirondack L. & P. Corp., 206 App. Div. 584; Peoples Gas & Electric Co. v. City of Oswego, 207 App. Div. 134; Fish v. Vanderlip, 218 N. Y. 29; Riggs v. Purcell, 74 N. Y. 370;
      West v. Imbrie, 127 Misc. Rep. 624; Loeb v. Willis, 100 N. Y. 231.)

      Timothy Curtin for respondent.
    The offer made by the respondent to settle the case, accepted by the town by the resolution adopted by the town board, the stipulation signed by the attorneys of record as directed by the resolution, and the order of settlement and discontinuance entered therein, constitute a valid agreement of settlement, and shows that it was the mutual intention of the parties to settle and conclude the litigation for all time. (Grossman v. Schenker, 206 N. Y. 466; 1 Williston on Contracts, §§ 23, 63, 64; Minehan v. Hill, 144 App. Div. 854; Yonkers Fur Dress Co. v. Royal Ins. Co., 247 N. Y. 435; Schnell v. Perlman, 238 N. Y. 362; Moers v. Moers, 229 N. Y. 294; Allison v. Abendroth, 108 N. Y. 470; Wahl v. Barnum, 116 N. Y. 87; Pahlem v. Starr, 7 Hun, 422; Cox v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 414; Diamond Soda Water Co. v. Hegeman & Co., 74 App. Div. 430.) The town through its board decided that a settlement was for the interest of the town, and in the absence of fraud is final and conclusive unless it transcends its powers. The court must assume that legislative discretion has been properly exercised. (McCabe v. City of New York, 213 N. Y. 468; Matter of City of New York [Ely Ave.], 217 N. Y. 45; Matter of Public Serv. Comm., 217 N. Y. 61; Bacon v. Miller, 247 N. Y. 311.) The rule as to an accord and satisfaction does not apply. (Nassoiy v. Tomlinson, 148 N. Y. 326; Schnell v. Perlman, 238 N. Y. 362; Sears v. Grand Lodge, A. O. U. W., 163 N. Y. 379; Post v. Thomas, 212 N. Y. 264; Simons v. Amer. Legion of Honor, 178 N. Y. 263; Stono v. Wellar, 128 N. Y. 655; People ex rel. McDonough v. Bd. of Managers, 96 N. Y. 640; Bandman v. Finn, 185 N. Y. 508; Larkin v. Hardenbrook, 90 N. Y. 333; Reilly v. Barrett, 220 N. Y. 173.)
   Lehman, J.

The plaintiffs, as taxpayers in the town of Vienna, Oneida county, have brought an action to compel the defendant to account for and restore to the town of Vienna moneys which, they allege, he wrongfully withdrew from the town funds by false .certificates and payrolls, submitted to the supervisor of the town while the defendant was acting as superintendent of highways of the town. The defendant in his answer, in addition to a complete denial of the allegations of the complaint, has alleged, as an affirmative defense, that the taxpayers’ action is barred by the settlement and discontinuance of a previous action brought by the town against this defendant because of the same alleged wrong. Copies of a stipulation signed by the attorneys in the action brought by the town which provides that the action be and the same is hereby settled and discontinued without costs to either party,” a resolution of the town board authorizing the attorneys for the town to sign and procure such a stipulation, and an order of the court entered thereafter upon the stipulation, are annexed to the complaint. At the opening of the trial, before any evidence was received to sustain the allegations of the complaint, upon proof by the defendant and admissions by' the plaintiff of the allegations of the affirmative defense, the defense was sustained and the complaint dismissed.

The General Municipal Law (Cons. Laws, ch. 24), section 51, authorizes taxpayers of the town to bring actions against officers of the town to “ restore and make good, any property, funds or estate ” of said town. The effect of the legislation is to enable the taxpayers to accomplish “ by action not more than the proper municipal authorities can at all times accomplish, but such results as the municipal authorities can and should, but, because of carelessness or wilful purpose, will not.” (Weston v. City of Syracuse, 158 N. Y. 274.) The Town Law (Cons. Laws, ch. 62), section 11, authorizes actions in the name of the town to enforce any liability created or duty enjoined upon any of its officers or to recover damages for injury to the property of the town. Doubtless the town board might direct the bringing of an action to compel restitution of town moneys wrongfully withdrawn by an officer. Upon this appeal we assume, without further consideration, that the town board might also compromise any such claim and receive in settlement and satisfaction less than the town might recover by judgment if an action brought in its name were in all respects successful. After the town board has received satisfaction of the claim of the town, it must be plain that a taxpayer cannot bring an action and obtain a judgment in behalf of the town upon the claim which has been settled and satisfied in good faith. The plea and proof in this case is, however, entirely insufficient to show a settlement and satisfaction of the claim, of the town against the officer who, it is alleged, has been dishonest. The defendant might have insisted that if the town chose to discontinue the action it must pay costs. The town might be unwilling to discontinue the action if the defendant chose to insist on payment of costs to him as a condition of discontinuance. Both desired that the action should proceed no further. The town agreed to discontinue the action, the defendant agreed to waive costs upon such discontinuance. By that agreement the action was settled, and .upon entry of the order of discontinuance the action was forever at an end, but there had been no adjudication upon the merits of the cause of action, and the defendant had not agreed to pay, and the town had not agreed to receive, anything in settlement of the claim.

Though we have assumed that town officers, authorized to bring an action to enforce an obligation due to the town, are impliedly authorized also to compromise or settle such obligations, yet certainly, they may not voluntarily cancel, without consideration, obligations due to the town. The statutory right of taxpayers to bring actions to enforce such obligations where the town officers fail to do so might be of little avail if an agreement made by the town officers with the person subject to the obligation, that an action previously brought by the town officers might be discontinued without costs to either party, constitutes a discharge and satisfaction of the cause of action. Even payment by the defendant of the costs of the action would ordinarily be consideration only for the abandonment of the action brought. It would not constitute a payment to be applied by agreement upon the claim of the town. (Barrett v. Third Avenue R. R. Co., 45 N. Y. 628.) The resolution of the town board authorizing a “ discontinuance and settlement ” of the action and the stipulation made in accordance with that resolution show no agreement upon any point in dispute. Only the action previously brought here was to be ended. There was no discharge or satisfaction of the claim itself, though it may well be that the defendant believed he would not be harassed thereafter by other litigation to enforce it.

An agreement to settle and discontinue ” an action without costs to either party may hardly lay the basis for a serious claim that it constitutes an accord and satisfaction of the cause of action itself. It is only fair to point out that the answer in this case does not allege in terms that there has been a technical accord and satisfaction or that the cause of action has been released or discharged. It alleges that the plaintiffs should be " estopped from prosecuting the action.” At common law an open voluntary renunciation in court by a party of his claim constituted a retraxit j and by this he forever loses his action.” (3 Blackstone’s Commentaries, 296.) In effect, the courts below in sustaining the defense pleaded have held, not that the cause of action has been discharged by an accord and satisfaction, but only that a discontinuance of the action entered upon such a stipulation duly authorized by the parties constitutes a bar to the action.

A voluntary discontinuance, of course, does not itself bar the bringing of a new action. In some of the earlier cases, a nolle prosequi was considered in the nature of a retraxit, operating as a release or discharge of the action, and an absolute bar to any future action for the same cause, (citing cases). But, in later cases, this doctrine is negatived, and a nolle prosequi is held not to be in the nature of a retraxit or release, or a bar to a future action.” (Barrett v. Third Avenue R. R. Co., supra.) Doubtless a discontinuance entered pursuant to a compromise or settlement of the controversy itself may at times constitute a discharge of the cause of action itself. (Freeman on Judgments, vol. 2, § 758.) It may indeed be the satisfaction contemplated in a previous accord. We are not now called upon to decide how far recitals that the-cause of action has been compromised and settled or discharged, contained in an order of discontinuance entered on consent, may be conclusive upon the parties. At least such recitals are not conclusive unless on their face they clearly show an agreement to settle the controversy and not merely to terminate the action. (Haldeman v. United States, 91 U. S. 584.)

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

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

Judgment reversed, etc.


author: O’Brien, J.

text:
    In the Matter of the Accounting of Marine Trust Company of Buffalo et al., as Executors of Edmund Hayes, Deceased, Respondents. Dartmouth College et al., Appellants; Morey C. Bartholomew, as Administrator of the Estate of Mary H. Hayes, Deceased, et al., Respondents.

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

      Helen Z. M. Rodgers, Adelbert Moot and William L. Marcy for Dartmouth College, appellant.
    The loans in question were payable out of the policies pledged to the insurance company for that purpose and created no debt enforcible against the insured or his estate. Hence, no relation of suretyship could arise. (Wagner v. Thieriot, 203 App. Div. 757; 236 N. Y. 588; Stevens v. Mutual Life Ins. Co., 227 N. Y. 542; Breard v. New York Life Ins. Co., 138 La. 774; Walker v. Pennick, 122 Va. 664; Faris v. Faris, 76 Ind. App. 336; Union Central Life Ins. Co. v. Wood, 11 Ind. App. 335; Ruane v. Ins. Co., 194 Mo. App. 214.) The transactions in question were not “ loans ” but anticipated settlements by the insurer with the policy holder, based upon the accrued value of the policy and creating no personal liability on the part of the insured. (Board of Assessors of Orleans Parish v. New York Life Ins. Co., 216 U. S. 517.)

      Ralph Ulsh for University of Buffalo, appellant.
    The parties by their contract provided for repayment of the loans from the proceeds of the policies under all contingencies. These remedies, constituting a complete scheme, exclude any personal liability, under the well-established doctrine expressio unius est exclusio alterius.

      (Village of Argyle v. Plunkett, 220 N. Y. 306; Pres., etc., D. & H. Canal Co. v. Pa. Coal Co., 50 N. Y. 250; Smith v. Brooklyn Savings Bank, 101 N. Y. 58; Wagner v. Thieriot, 203 App. Div. 757; 236 N. Y. 588; Dannhauser v. Wallenstein, 169 N. Y. 199.)

      Charles F. Blair and Alton R. Erickson for Morey C. Bartholomew, as administrator, -etc., respondent.
    The true relationship between the parties to these loans was that of debtor and creditor. (Wagner v. Thieriot, 203 App. Div. 757; 236 N. Y. 588; Equitable Life Assur. Co. v. De Lisle, 194 Mo. App. 42.) The clause in three of the semi-tontine policies, providing for payment of the proceeds to the beneficiary upon the death of the insured, “ any indebtedness to the society on account of this contract to be first deducted therefrom,” was not intended to confer a loan privilege upon the insured. (Union Central Life Ins. Co. v. Woods, 11 Ind. App. 355.) The true relation between Mr. and Mrs. Hayes in these loan transactions was that of principal and surety and the fact that the written agreements bear no express evidence of a principal and surety relationship between husband and wife does not prevent the true relationship of the parties being shown by extrinsic evidence. (Dibble v. Richardson, 171 N. Y. 131; Erie County Savings Bank v. Roof, 80 N. Y. 591; Vartie v. Underwood, 18 Barb. 561; Hubbard v. Curney, 64 N. Y. 457; Knowles v. Cuddeback, 19 Hun, 590; Peck v. Burrell, 48 Hun, 471; Allis v. Ware, 28 Minn. 166; Union Central Life Ins. Co. v. Woods, 11 Ind. App. 335; Mutual Benefit Life Ins. Co. v. Swett, 222 Fed. Rep. 200.)

      Allen Keeney for Marine Trust Company et al., as executors, respondents.
   O’Brien, J.

Edmund Hayes took out five policies on his own life in the Equitable Life Assurance Society. Originally, four of them were payable to himself and one to his executors, administrators and assigns. He assigned all of them to bis wife. In the year 1895, at the request of husband and wife, the policies were altered so as to become payable to the wife, if living, and, if not, to the husband, his executors, administrators or assigns. Both stated in their letter to the insurance company requesting such alteration that the purpose was, in the event of the husband’s survival, that the policies should revert to him. In the year 1907 General Hayes applied to the insurance company for such loans on the policies as were then authorized by chapter 690 of the Laws of 1892. Loan agreements were executed not only by the husband but by the wife and a sum contemplated by the statute was advanced on the policies, the company’s check was made payable to Edmund Hayes and Mary H. Hayes, and the wife indorsed to her husband for his own use. By the execution of the loan agreements she may be considered to have assented to the substitution of the company in her stead to the extent of its interest. General Hayes paid the annual premiums on the policies and the interest on the loans and the company extended the time for repayment of the principal from year to year. Without repayment he died in 1923. The insurance company, after deducting the amount advanced, paid the remainder of the proceeds of the policies to the wife. During the following year she also died and her estate made claim upon her husband’s estate for the amount deducted which represents the advance. The claim was rejected by the Surrogate but this part of his decree was reversed and the claim allowed. The Appellate Division held that the wife was a surety on a personal liability assumed by the husband. We take the view that, under the provisions of the statute, the documents forming the offer, the agreements and receipts and according to the conditions created by the joint acts of the husband and wife, no resort to personal liability could ever have occurred, that the conventional relation of debtor and creditor, therefore, did not exist between the company and the insured and that, rather than a loan in the strict sense, although so designated in the agreement, the sum of money which the insured was allowed to use constitutes an advance upon the policies made with the consent of the beneficiary. The facts bear such a close analogy to those in Wagner v. Thieriot (203 App. Div. 757; affd., 236 N. Y. 588) and in Board of Assessors of Orleans Parish v. N. Y. Life Ins. Co. (216 U. S. 517) that the principle of those decisions must be held to control.

Chapter 690 of the Laws of 1892, section 16, the statute in effect during the year 1907, allowed any life insurance company to lend a sum “ not exceeding the lawful reserve which it holds upon any policy ” on the pledge to it of such policy and its accumulations as collateral security. It is conceded that none of the five loans exceeded the lawful reserve on any policy. The amount of each loan was slightly less than the cash value of the policy on the date of the loan. The loan offer by the company to the insured includes the condition that in case of death of the insured before the maturity of the loan or if the policy is surrendered or canceled on account of failure to comply with the conditions of the loan, the cash balance, if any, after payment of the loan, will be paid to the parties legally entitled thereto. The loan agreement, executed by husband and wife, provides that if the surrender value of the policy should exceed the amount of the loan with interest at five per cent, the excess value above the loan and interest shall be due and payable to the legal owner or owners of the policy on demand. The loan acknowledgment by the company likewise stipulates that in the event of the death of the insured before the maturity of the loan, any indebtedness will be deducted from the amount payable under the policy, the balance being payable to the person legally entitled thereto. Although these advancements on the policies are denominated loans and the insured and his wife did in terms agree to repay them, clearly there could have been no intention to enforce a personal liability against the recipient of the advances. The agreement is silent in respect to any method of enforcement except deduction from the amounts payable under the policies. Since each advancement was less than the cash value of the policy at the time the moneys were advanced, the company could not suffer a deficit. The value of the pohcies constituted the fund out of which the company could repay its loans. These securities, always of greater value than the loans, were in its possession and formed complete protection. Under such circumstances enforcement of any remedy against the person of the borrower doubtless never was considered. Indeed, whether an attempt, if made, could have successfully resulted is far from certain. The affair is similar to transactions where the estabhshment of a particular fund or a particular remedy may be deemed to provide the exclusive remedy. (Gihon v. Stanton, 5 Seld. 476; Hidden v. Waldo, 55 N. Y. 294; Newburger-Morris Co. v. Talcott, 219 N. Y. 505, 511; Village of Argyle v. Plunkett, 226 N. Y. 306.)

The facts are not identical with those in the Wagner Case (supra). A distinction in principle, however, is not apparent. The statute (Laws of 1892, chap. 690, § 16), under which these moneys were advanced to General and Mrs. Hayes, unlike the statute (Laws of 1909, chap. 301, § 7) in that case, did not compel the company to act nor did it provide that the loans should be made on the sole security of the pohcy. Yet the company was authorized to act and availed itseff of its statutory power. As the loan did not and could not exceed the lawful reserve which the company held on the poEcy, consequently, although not expressly so stated, the poEcy was, in fact, the sole security. The company promised that the cash balance of the poEcy after payment of the loan will be paid to the party entitled thereto, that the excess value above the loan shall be due and payable to the legal owner and that in the event of the death of the insured before the maturity of the loan, any loss will be deducted from the amount payable under the policy and the balance paid to the person legally entitled thereto. A very close resemblance to these facts appears also in Board of Assessors of Orleans Parish v. N. Y. Life Ins. Co. (supra). The insurance company in that case, like the one at bar, was a New York corporation making loans on its policies pursuant to the same .statute in effect when these Hayes loans were made by the Equitable. The nature of the transaction was thus expressed by the Supreme Court: “ This is called a loan. It is represented by what is called a note, which contains a promise to pay the money. But as the plaintiff never advances more than it already is absolutely bound for under the policy, it has no interest in creating a personal liability, and therefore the contract on the face of the note goes on to provide that if the note is not paid when due it shall be extinguished automatically by the counter credit for what we have called the reserve value of the policy. In short, the claim of the policyholder on the one side and of the company on the other are brought into an account current by the very act that creates the latter. The so-called liability of the policyholder never exists as a personal liability, it never is a debt, but is merely a deduction in account from the sum that the plaintiffs ultimately must pay. In settling that account interest will be computed on the item for the reason that we have mentioned, but the item never could be sued for, any more than any other single item of a mutual account that always shows a balance against the would-be plaintiff. In form it subsists as an item until the settlement, because interest must be charged on it. In substance it is extinct from the beginning, because, as was said by the judge below, it is a payment, not a loan.”

The order of the Appellate Division should be reversed and that of the Surrogate’s Court affirmed, with costs to all parties payable out of the estate.

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

Order reversed, etc.


author: Hubbs, J.

text:
    In the Matter of Ira T. Johnson, as Executor of Ella Wilson, Deceased, Respondent. Milton P. Kaler, Appellant.
    (Argued October 22, 1929;
    decided November 19, 1929.)

      Harry L. Kreeger, William Both and George D. Zahm for appellant.
    The Surrogate was without power to direct the turning over of moneys or property which were not in the possession of the appellant, either in specie or in the form of proceeds resulting from the disposition of such moneys or property, nor were under his control, where the uncontradicted and unimpeached proof was that the appellant had neither such money nor such proceeds, but had in fact acted as a mere conduit by which the property came to the decedent’s donee. Nor was the Surrogate possessed of the power to adjudicate against a claimed gift in the absence of the donee. (Matter of Walker, 136 N. Y. 20; Matter of Gick, 49 Misc. Rep. 32; Matter of Heinze, 224 N. Y. 1; Matter of Carey, 119 Misc. Rep. 104; 206 App. Div. 734; Matter of Miller, 112 Misc. Rep. 287; Matter of O’Brien, 34 Misc. Rep. 436; 65 App. Div. 282; Matter of Richardson, 31 Misc. Rep. 666; Matter of Hyams, 237 N. Y. 211; Matter of Cofer, 121 Misc. Rep. 292; Matter of Fraley, 129 Misc. Rep. 803; Beattie v. Burt, 122 App. Div. 473; Martin v. Colby, 42 Hun, 1; Weed v. Terry, 2 Dougl. 344.)

      Joseph R. Webster for respondent.
    The Surrogate did not err in holding a gift had not been proven. (Matter of Sherman, 227 N. Y. 350; Caldwell v. Lucas, 233 N. Y. 248.) The Surrogate had power to direct appellant to return the money. (Surrogate’s Court Act, §§ 205, 206; Matter of Hyams, 237 N. Y. 211; Matter of Akin, 248 N. Y. 202.)
   Hubbs, J.

The respondent, as executor of the last will and testament of Ella Wilson, deceased, commenced a discovery proceeding in the Surrogate’s Court of Westchester county under section 205 of the Surrogate’s Court Act (Laws of 1920, chap. 928, as amd.) In his petition he prayed that the appellant, Milton P. Kaler, attend before the surrogate and be examined respecting certain bank accounts owned and standing in the name of the testatrix. The testatrix resided with the appellant at the time of her death and had for several years prior thereto. During that time he had acted for her in many transactions in relation to such bank accounts.

The appellant appeared in said proceeding and filed an answer in which he denied that he had any assets belonging to the estate of the deceased except certain property specified. He did not question the jurisdiction of the surrogate or demand a jury trial.

Upon the hearing it appeared that on July 24th, 1926, the day before the testatrix died, the appellant withdrew $33,092.36 from two banks, from accounts which stood in the name of the testatrix. He testified that the testatrix instructed him to withdraw said sum and to give it to his wife and that he did so. The learned surrogate was justified in finding, as he did, that the money so withdrawn belonged to the estate of the testatrix. The decree entered in the proceeding ordered the appellant to deliver to the executor said sum, with interest.

It is contended by the appellant that the surrogate was without jurisdiction to order him to pay over to the executor said sum, as it appeared without dispute that he had turned it over to his wife, and that it was, therefore, no longer in his control or possession.

Sections 205 and 206 of the Surrogate’s Court Act as they now read are the result of a long and gradual development. They are derived from chapter 359 of the Laws of 1870, which applied to New York county only. Later the Code of Civil Procedure, by sections 2707 to 2710, inclusive, extended the practice to the whole State.

The purpose of the enactment was to provide a summary mode of discovering and reaching' specific property of a deceased in the possession of a third person, and to enable the personal representative of the deceased to obtain an order for its surrender. By the amendment of 1914 the sections were renumbered and became sections 2675 and 2676. Before the amendment it was held that a third person proceeded against could defeat the proceeding by filing a verified answer setting up ownership or that he was entitled to the possession of the property by virtue of a hen thereon or specified property therein.

Sections 2675 and 2676 of the Code of Civil Procedure were re-enacted without change and became sections 205 and 206 of the Surrogate’s Court Act in 1920 (Laws of 1920, ch. 928; as amd. by Laws of 1921, ch. 438). It was thereafter decided that a Surrogate’s Court had jurisdiction to try and determine the right to possession of specific property but could only direct the delivery of specific money or personal property which belonged to the deceased in his life time.” The court was still without authority to follow the proceeds of property wrongfully sold or disposed of. (Matter of Hyams, 237 N. Y. 211.) That decision was made in 1923. The next year section 206 was amended (Laws of 1924, ch. 100) to read as follows: If it appears that the petitioner is entitled to the possession of the property, the decree shall direct delivery thereof to him, or if the estate property shall have been diverted, or disposed of the decree may direct payment of the proceeds or value of such property or may impress a trust upon said proceeds or make any determination which a court of equity might decree in following trust property or funds.”

In Matter of Akin (248 N. Y. 202), decided after the amendment of 1924, it appeared that a third party claimed, by reason of a gift, a certain bank account which had stood in the name of the deceased. In a discovery proceeding under sections 205 and 206, the third party did not file an answer, but appeared at the hearing and contested the right of the administrator to the possession of the bank account. The Surrogate found that the account belonged to the estate and directed the payment of the proceeds of the account to the administrator. It was urged that the Surrogate was without authority to make such a decree, as the issue was not raised by an answer which alleged title to the property. This court held otherwise and said: “ The Surrogate’s Court has now jurisdiction to dispose of every claim to property which should be delivered to an executor, administrator or guardian.” We are now called upon to determine whether such jurisdiction has been granted in case the specified property has been transferred and is no longer in the possession or control of the third person proceeded against.

The clear wording of the amendment confers such authority upon the Surrogate’s Court, and it may, when it appears that the estate property shall have been diverted or disposed of,” make a decree directing the payment of the proceeds or value of such property to the representative of the estate. The correctness of the conclusion reached as to the purpose of the amendment is made clear by a study of the historic development of the law upon the subject.

The third party in such proceeding is not deprived of any constitutional right as section 68 of the Surrogate’s Court Act gives the right to a jury trial in such proceeding. (Matter of Heinze, 224 N. Y. 1.)

The order of the Appellate Division and the decree of the Surrogate’s Court should be affirmed, with costs.

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

Ordered accordingly.


author: Pound, J.

text:
    Eva Heymann, Respondent, v. Paul Viane, Appellant, and James E. Squires et al., Respondents, Impleaded with Another.

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

      William F. Columbus for appellant.
    The transfer tax upon the estate of Thomas T. Sturges was not a lien upon defendant Yiane’s property and not a valid objection to the taking of title. (Matter of Meyer, 209 N. Y. 386; Brown v. Lawrence Park Realty Co., 133 App. Div. 175; Matter of Dows, 167 N. Y. 227; Matter of Gihon, 169 N. Y. 443; Matter of Wolfe, 89 App. Div. 349; Matter of Smith, 80 Misc. Rep. 140.) The sublease made by the tenant Klein to Shapiro was not an incumbrance on the real estate in suit. (Bone v. Coppola, 91 N. Y. Supp. 8; Bruder v. Geisler, 94 N. Y. Supp. 2; Ashton Holding Co., Inc., v. Levitt, 180 N. Y. Supp. 700; Hessberg v. Manyullo, 182 N. Y. Supp. 637; Ruella Realty Co., Inc., v. Wilkie, 198 N. Y. Supp. 212; Weintraub v. Weil, 103 N. Y. Supp. 299; Smith v. United Crude Oil Co., 179 Cal. 570; Connaughton v. Barnard, 84 Md. 577; Riggs v. Pursell, 66 N. Y. 193; Hartigan v. Casualty Co. of America, 227 N. Y. 175; Bovine v. Galitzka, 250 N. Y. 228; Round Lake Assn. v. Kellogg, 141 N. Y. 348; Brown v. Broadway & Seventy-second St. Realty Co., 131 App. Div. 780.)

      Robert P. Schur and Hugo Wintrier for plaintiff-respondent.
    The inheritance taxes were a lien justifying the rejection of title. (Midurban Realty Corp. v. F. D. & L. Realty Corp., 220 App. Div. 814; 247 N. Y. 307; Warner v. Doscher, 213 App. Div. 117; 241 N. Y. 605; Goldenberg v. Doscher, 248 N. Y. 612; Kitching v. Shear, 57 N. Y. Supp. 464; Smith v. Browning, 225 N. Y. 358; Lese v. Lawson, 118 App. Div. 254.) The sublease was a new, different and seriously prejudicial incumbrance. (Andrews v. Perry, 127 Misc. Rep. 320; Bohan v. Port Jervis, 122 N. Y. 18.)

      Augustus L. Richards, Oscar R. Ewing and Harold L. Smith for James E. Squires, defendants-respondents.
    Appellant’s title was unmarketable because of the State transfer taxes and Federal inheritance taxes. (Kinnier v. Rogers, 42 N. Y. 531; Matter of Hazelton, 77 Misc. Rep. 419; Matter of Ramsdill, 190 N. Y. 492; Matter of Pennfiold, 216 N. Y. 163; Midurban Realty Corp. v. F. Dee & L. Realty Corp., 247 N. Y. 307; Carey v. Keith, Inc., 250 N. Y. 216; Smith v. Browning, 225 N. Y. 358; Simond v. Rowe, 110 Misc. Rep. 52; Warner v. Doscher, 213 App. Div. 117; 241 N.Y. 605; Lese v. Lawson, 118 App. Div. 254;
      Kitching v. Shear, 26 Misc. Rep. 436.) Even if the premises were not subject to tax hens, the title was unmarketable on the closing date because the taxes had not been fixed or paid. (Moore v. Williams, 115 N. Y. 586; Cerf v. Diener, 210 N. Y. 156; Chesebro v. Moers, 233 N. Y. 75; Dyker Meadow L. & Imp. Co. v. Cook, 159 N. Y. 6; McPherson v. Schade, 149 N. Y. 16; Crouter v. Crouter, 133 N. Y. 55; Smith v. Browning, 225 N. Y. 358; Midurban Realty Corp. v. F. Dee & L. Realty Corp., 247 N. Y. 307.) Appellant’s title was unmarketable because of the sublease. (Forster v. Scott, 136 N. Y. 577; Bull v. Burton, 227 N. Y. 101; Paddell v. Jones, 84 Misc. Rep. 212; Eten v. Luyster, 60 N. Y. 262; Ashton Holding Co., Inc., v. Levitt, 191 App. Div. 91; Rhinelander Real Estate Co. v. Cammeyer, 216 App. Div. 299.)
   Pound, J.

This is an appeal from the final judgment entered on the order of the Appellate Division, First Department, aflarming a judgment of the Supreme Court, which (1) awarded recovery against defendant Viane and in favor of the plaintiff on her claim for money paid upon a contract for the purchase of real property and for the cost of the title search and expenses; (2) dismissed defendant Viane’s counterclaims against the plaintiff and the impleaded codefendants for reformation of the contract and specific performance thereof, and (3) impressed a hen on the premises involved for the amount of the recovery.

The question involved on this appeal is whether appellant had marketable title to certain premises on March. 23, 1926.

On November 18, 1925, appellant and respondent Squires entered into a contract for the sale by the former to the latter of premises at 816 Broadway, New York city. Appellant agreed to convey the fee simple of the premises free of ah incumbrances with certain exceptions not material here. The closing of the title to the premises was later adjourned to March 23, 1926. On that date respondent A. T. Realty Co., Inc., assignee of respondent Squires, refused to take title to the premises upon the ground that appellant’s title was unmarketable because of unpaid State transfer taxes and Federal inheritance taxes and a sublease. The premises contracted to be sold were purchased by appellant in February, 1925, from the executors of the estate of Thomas T. Sturges, deceased, who died in October, 1923. .An undivided one-third interest therein was part of the residuary estate disposed of by his will. The will gave the executors a discretionary power of sale over all of the decedent’s real property and directed that all taxes on bequests therein should be paid out of the residuary estate. At the time of the sale to appellant, $27,527.82 had already come into the hands of the executors. The total amount necessary to pay administration, funeral and other expenses, including the taxes, was only $15,063.68. The amount necessary to pay such expenses and the specific cash legacies was $40,260.75. The trial court found that it was necessary to sell the property involved in this suit in order to pay administration expenses, debts, taxes and specific cash legacies of the estate. However, there is no finding that the sale was necessary to pay only the taxes. The contrary is shown by the facts just stated. The executors eventually distributed $10,655.70 to the residuary legatees.

The report of the State Transfer Tax Appraiser was not made or filed until November 10, 1926, and the State transfer taxes were not fixed until November 22, 1926, and were not paid until December 13, 1926. The last payment of Federal inheritance taxes was not made until July 9, 1926. The account of the executors was not judicially settled until July 29, 1927.

The State and Federal taxes were among the exceptions set forth in a title certificate issued by Title Guarantee and Trust Company, dated January 21, 1925, certifying title to the premises in the Sturges executors clear of incumbrances and defects except as therein noted. A similar exception was made in a title certificate issued by Lawyers Title and Guaranty Company to A. T. Realty Co., Inc., about March 8, 1926.

The contract of sale was subject to a lease for. the northerly part of the basement for a term of three years commencing May 1, 1925, and this lease was examined by the representative of the purchaser before the contract was signed. This lease contained the following provisions:

“ to be used and occupied by the Tenant Collar business.” * * * * * * *

“ That the Tenant shall not * * * under-lease the premises, or any part thereof, or make any alterations on the premises, without the Landlord’s consent in writing * *

The lessees occupied the leased premises as a basement store. On November 24, 1925, the lessees, without the consent of respondents Squires or A. T. Realty Co., Inc., sublet for á term of twenty-nine months commencing December 1, 1925, a portion of the leased premises to be occupied as a stand for the sale of frankfurters, candy, cigars and all kinds of soft drinks and fruits, and the sublessee occupied the subleased portion of the premises for such purposes from about December 1, 1925, down to and including March 23, 1926, the closing date. The front window of the subleased portion of the premises was removed and replaced by an open stand. The sublease was made with the written consent of appellant, given about June 13, 1925. The testimony of the purchaser’s agent was to the effect that the purchaser had no knowledge of the consent to sublease prior to the signing of the contract. There was no understanding between the parties to the contract of sale that the premises would be taken subject to the taxes or the sublease, which were not mentioned in the contract.

Tax Law (Cons. Laws, ch. 60), section 220, reads as follows:

“ Taxable transfers — residents. A tax shall be and is hereby imposed upon the transfer of any property real or personal, or of any interest therein * * *

“1. When the transfer is by will or by the intestate laws of this state from any person dying seized or possessed thereof while a resident of the state.”

Tax Law, section 222, reads as follows:

“Accrual and payment of tax. All taxes imposed by this article shall be due and payable at the time of the transfer, except as herein otherwise provided * * *.” Tax Law, section 224, reads in part as follows:

“ Lien of tax and collection by executors, administrators and trustees. Every such tax shall be and remain a lien upon the property transferred until paid * * *.”

“ Every executor, administrator or trustee shall have full power to sell so much of the property of the decedent as will enable him to pay such tax in the same manner as he might be entitled by law to do for the payment of the debts of the testator or intestate. * * * ”

Appellant contends that, although on the closing day of the contract the transfer tax might otherwise have been an incumbrance on the premises, it was not a hen upon defendant Viane’s property and was not a valid objection to the taking of title, for the reason that in the proper administration of the estate, it was necessary for the Sturges’ executors to sell this property in order to realize sufficient cash with which to pay the expenses of administration, debts, taxes and specific cash legacies of his estate; that the sale was, therefore, made free and clear from such incumbrance; and that the lien attached only to the fund realized from the sale.

This conclusion is reached by the following line of reasoning: So much of the estate as goes to pay the tax is free from the tax and its lien. The property disposed of to pay the transfer tax is not a part of the interest or property transferred within the meaning of section 220 of the Tax Law. (Matter of Meyer, 209 N. Y. 386, 391.)

Therefore, as the real property contracted to be sold was a part of the general estate of the testator and the sale, under a discretionary power of sale, was for the purpose of estabhshing the residuary estate out of which the tax was payable, the lien attaches only to the fund realized. (Brown v. Lawrence Park Realty Co., 133 App. Div. 753.)

If we give section 224 of the Tax Law its widest significance, it merely authorizes the executor to sell, free from the hen, so much of the testator’s property as will supply the necessary funds, otherwise lacking, to enable him to pay such tax. If the real estate had been specifically devised, it might have been necessary to sell it to pay the taxes which were a lien on it (Smith v. Browning, 225 N. Y. 358), but here the taxes were payable out of the residuary estate. The sale was made under the discretionary power of sale in the regular course of the. administration of the estate.

The real estate herein was property transferred ” by testator’s will and the tax remains a hen upon it until paid. No evidence indicates that the sale was effected for the purpose of enabling the executors to pay the transfer tax or was necessary for that purpose, except in connection with debts, expenses of administration and legacies. (Midurban Realty Corp. v. F. Dee & L. Realty Corp., 247 N. Y. 307, 309.) The executors had abundant funds on hand to pay the tax, debts and expenses of administration. The testator’s direction that all taxes on bequests should be paid out of the residuary estate did not release the Hen of the State on specific property. As long as the tax remained unfixed and unpaid, the realty was not marketable. (Smith v. Browning, supra.) The doctrine of equitable conversion may not be refied on to subject property to taxation or to shift the Hen of the tax from the real property transferable to the fund. (Matter of Sutton, 3 App. Div. 208; affd., 149 N. Y. 618; Matter of Swift, 137 N. Y. 77.)

Section 409 of the United States Revenue Act of 1921, which was in force at the time of the death of Sturges, provides: That unless the tax is sooner paid in full, it shall be a lien for ten years upon the gross estate of the decedent, except that such part of the gross estate as is used for the payment of charges against the estate and expenses of its administration, allowed by any court having jurisdiction thereof, shall be divested of such lien.” This statute differs from the State Tax Law in that the hen is upon the gross estate and not on each interest bequeathed. (Smith v. Browning, supra.) The statutory lien is removed only as to assets needed to pay charges against the estate and administration expenses “ allowed by any court having jurisdiction thereof.” No such allowance had been made in this case on the closing day. The hen of the Federal inheritance tax clearly attached to the premises in suit.

Provision is or may be made in proper cases for a release of the Hen by the taxing officers but nothing of the kind is here claimed.

With this disposition of the case, it is unnecessary to say more in reference to the sublease except that the court might well refuse specific performance in a case where the sublease was made after the execution of the contract which materially altered for the worse the nature of the occupancy and the appearance of the premises, even though the sublease, being lawfully made, was not, strictly speaking, an incumbrance. Here the occupancy of the premises contemplated by the parties was that of a collar store, not a hot dog stand.

The contract specifically provides that all sums paid on account thereof and the reasonable expense of the examination of the title of the premises should be Hens.

The judgment should be affirmed, with costs.

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

, Judgment affirmed.


author: Crane, J.

text:
    C. Case Percy et al., Appellants and Respondents, v. Elizabeth L. Huyck et al., Respondents and Appellants.
    (Argued October 24, 1929;
    decided November 19, 1929.)

      Hampton H. Halsey for plaintiffs, appellants and respondents.
    The letters of the defendant read in connection with the instrument accompanying the deeds of conveyance are sufficient writings within the provisions of section 242 of the Real Property Law to prove and establish that the defendant Elizabeth L. Huyck took and held the premises in question in trust for the plaintiffs in this action and Arthur Barber, deceased. (Wright v. Douglass, 7 N. Y. 564; Hutchins v. Van Vechten, 140 N. Y. 115; Sinclair v. Purdy, 235 N. Y. 245.) If there is a failure of proof to establish a trust relationship then the circumstances require the finding of such by implication or operation of law. (Wood v. Robe, 96 N. Y. 426; Goldsmith v. Goldsmith, 145 N. Y. 313; Gallagher v. Gallagher, 202 N. Y. 572; Sinclair v. Purdy, 235 N. Y. 245; McKenna v. Meehan, 248 N. Y. 206.)

      George P. Decker for defendants, respondents and appellants.
    There was no trust as known to the law effectually imposed as to the block. (Fisher v. Hall, 41 N. Y. 416; Erdlich v. Minder, 65 App. Div. 496; Wright v. Douglass, 7 N. Y. 564; Bates v. Ledgerwood Co., 130 N. Y. 200; McKenna v. Meehan, 248 N. Y. 206; Ludlam v. Rector, 144 App. Div. 207; Phelps v. South Park Commissioners, 119 Ill. 626; Hutchins v. Van Vechten, 140 N. Y. 115; Van Cott v Prentice, 104 N. Y. 45; Bowen v. Beck, 94 N. Y. 86; Schley v. Fryer, 100 N. Y. 71; Farmers L. & T. Co. v. Winthrop, 238 N. Y. 447; Young v. Young, 80 N. Y. 422; Kinne v. Ford, 52 Barb. 194; Webbs Academy v. Hidden, 118 App. Div. 711.) Elizabeth’s title to the Tracy street property did not become subject to a trust in favor of decedent of which he might dispose. (Dillaye v. Greenough, 45 N. Y. 438; Weigert v. Schlesinger, 150 App. Div. 765.) Elizabeth has unqualified title to the Flint street property. (Farmers L. & T. Co. v. Winthrop, 238 N. Y. 477; People v. Powers, 147 N. Y. 104; Gueutal v. Gueutal, 113 App. Piv. 310.)
   Crane, J.

This is an appeal from the Appellate Division of the Fourth Department which modified an interlocutory judgment. The case is appealable under our decision in Maggi v. Sabatini (250 N. Y. 296), because the interlocutory judgment directed the immediate delivery of deeds and the assignment of mortgages. The balance of the judgment is for an accounting. We considered such á judgment final as to the former part.

The facts are these: Frank T. Percy was a bachelor, living with his sister at 21 Tracy street, Rochester, N. Y. The title to Tracy street was in this sister, the defendant Elizabeth L. Huyck. Frank owned two pieces of property known as 95 Flint street and the Block property on Reynolds street. Frank died on the 18th day of January, 1912. A little less than two months before his death, and on November 27th, 1911, he gave deeds of these two pieces of property owned by him to his sister, which were duly recorded. At the same time he gave her a paper which was not to be opened until his death, and which read as follows:

Rochester, N. Y., Nov. 27, 11.
I give to my sister Mrs. Elizabeth Huyck my .house and lot on Flint St. num. 95. My interest in house and lot on 21 Tracy St. In case she dies without having any children of her own she is to will this property to Frank and Leland Percy.
My insurance money is to be used in paying my debts. 'I owe Charley Gaylord Five $500.00 and pay Minnie her money on the note she hold,against me. What property I have left shall be equally divided among C. C. Percy, Harland Percy, Leland Percy, Franklyn Percy, Frances Barber, Katherine Barber, Arthur Barber. This property is not to be divided until ten years after my death.
In case any one of these seven heirs should have a sickness of any account they can draw on this property for that expense without any loss to them in the final settlement. This block can be sold or traded for other property just as you see fit. If sold would prefer to have the money put out on a mortgage.
“ (Signed) F. T. PERCY.”

The trial court found that the plaintiffs, who are the surviving nieces and nephews of Frank, owned the Block ” property and entitled to a deed thereof to the extent of six-sevenths; that Frank and Leland W. Percy have a remainder in 21 Tracy street and 95 Flint street. The Appellate Division modified the judgment by deciding that 95 Flint street belonged to Mrs. Huyck in fee.

The Special Term based its judgment upon declarations of trust made by Mrs. Huyck in certain letters, even as to 21 Tracy street, which she held in her own name. Thus on March 11th, 1912, she wrote to her sister as follows: In regard to bis real estate he deeded everything to me his interest in the home on Tracy St as we owned that together also a house and lot on Flint St and the city block which he exchanged for the farm is to be divided among Martin’s four boys and Minnie’s two girls equally at any time I see fit to dispose of it for he left it all to my judgment he had a fife insurance of $2,000 and it has taken that and a good deal more to settle his affairs.”

On September 17th, 1923, she wrote to the wife of one of the nephews: “ Now I am sending you $250.00 dollars which is part of what is for Harland and wish I could send it all but as we told you we did not get cash for the Block and it is being paid off very slow.”

Another letter dated December 5th, 1924, to one of the nephews is a lengthy account of the aunt’s handling of the property since her brother’s decease. It opens with the following sentence: It has now arrived at the time where I wish to give you some idea of what I have been doing since Brother Frank passed away in Jan. 1912,” and also contains this statement: “ I am sending each one a letter similar to this all but Charley, and I will not bother him with one and for this.reason. He has given up all interest in it and in one of his letters to me he also very frankly stated that he had given up thinking about having any interest in it whatsoever and he also states that he does not consider that he has any, but this will not stop me from sending him what belongs to him when I get it and if he returns it to me I will then divide that among you.”

On November 1st, 1926, Mrs. Huyck also wrote to Frances and Katherine Barber, two of the plaintiffs, as follows:

“ Now girls you are both old enough to know that your Uncle Frank left no will, nor nothing like it but he did leave with me a statement, of his affair’s which was a strictly private matter which was intended only for me and not for the public, and in this his niece’s and nephew’s would be remembered equally if things matured as he hoped they would for at that time things looked rather dubious to him.

“ When your uncle Frank left us it was farthest from his thought to place me under any obligations to any one and he did not do so. He told me to do the best I could and then all concerned should be satisfied. He had implicit confidence in me and I have not betrayed it, for my conscience is clear and you know me well enough to know that there is no crooked way in me, but by the tone of your letter do you wish to convey that thought? If you do you are all wrong.”

These letters explained the purpose of the deeds to Elizabeth L, Huyck and were sufficient to declare a trust in the property received. (Sinclair v. Purdy, 235 N. Y. 245; McKenna v. Meehan, 248 N. Y. 206.)

The Appellate Division, as above stated, modified the finding of the Special Term that the Flint street property was deeded in trust. The punctuation of the paper writing which was handed to Elizabeth with the two deeds gave the occasion for this modification by the Appellate Division. The first sentence is complete in itself, “ I give to my sister Mrs. Elizabeth Huyck my house and lot on Flint £!t. num. 95.” Here the matter relating to Flint street stops. “ My interest in house and lot at 21 Tracy St. In case she dies without having any children of her own she is to will this property to Frank and Leland Percy.” The Appellate Division was of the opinion that “this property” referred only to No. 21 Tracy street, and did not include the Flint street property. We are not inclined to differ with the Appellate Division in this ruling, although something can be said for the other construction.

The Appellate Division, however, affirmed the Special Term in all other particulars, including the direction to immediately give over deeds and mortgages to the plaintiffs. Immediate action is unnecessary; the decree goes too far.

Mrs. Huyck in 1923 conveyed the Block property to one Garson Merimsky, taking back deeds and mortgages. She also, in March, 1915, procured $2,500 on a mortgage on the Tracy street property. The Special Term, affirmed by the Appellate Division, has directed that she pay the mortgage, $2,500, and cancel it of record; that she immediately deed the property and transfer the mortgages received from Merimsky to the plaintiffs and that she account for all moneys received. Mrs. Huyck not only paid debts and claims against her brother but expended moneys in .the upkeep of the Block property and the Tracy street property. She should not be compelled to deed to these plaintiffs the property representing the Block property until she is reimbursed for her expenditures. Neither should she pay and satisfy the mortgage on the Tracy street property until it fully appears what she has paid out not only on these properties but in behalf of her brother, Frank Percy.

The judgment of the Appellate Division and that of Special Term are, therefore, modified by providing that the direction to turn over the property received for the Reynolds block and the order to satisfy the mortgage on the Tracy house and lot be delayed until final determination upon the accounting of the amount which may be due to Elizabeth Huyck for moneys advanced and expenditures made in behalf of the upkeep of these properties or in behalf of Frank Percy, her brother. The judgments of the Appellate Division and the Special Term should be modified in accordance with this opinion and as thus modified affirmed, without costs.

Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur; Cardozo, Ch. J., concurs, but is of the opinion that the trust should be extended to the Flint street property.

Judgment accordingly.


text:
    Packard Motor Car Company of New York, Appellant, v. American Balsa Wood Corporation, Respondent.

      (Argued October 24, 1929;
    decided November 19, 1929.)

      Lowen E. Ginn for appellant.
    The complaint states a cause of action. By defendant’s refusal and failure to remove its great mass of debris it was so occupying the premises, and was thereby preventing the landlords to enter to repair. (Desplaines Safety Depsoit Co. v. Lucas, 177 Ill. App. 653; Black v. Woodrow, 39 Md. 194.)

      James Adam Murphy for respondent.
    Plaintiff cannot recover for the removal of debris. (Doupe v. Genin, 45 N. Y. 119; U. S. v. Bostwick, 94 U. S. 53; Earle v. Arbogast, 180 Penn. St. 409; Ayer v. Bonwit, 161 App. Div. 122; Hartley v. Garnham, 119 Misc. Rep. 499; 507 Madison Ave. v. Martin, 114 Misc. Rep. 315; Orr v. Doubleday, Page & Co., 223 N. Y. 334; Sawyer v. Adams, 140 App. Div. 756; Witty v. Matthews, 52 N. Y. 512; Dazian v. Ittelson, 76 Misc. Rep. 228; Kip v. Merwin, 52 N. Y. 542; Fleischmann v. Toplitz, 134 N. Y. 349.)
   Pound, J.

The complaint alleges in substance that defendant subleased from the plaintiff certain premises for the storage of balsa wood; that on October 8, 1925, a fire rendered the premises untenantable; that the balsa wood stored therein was so burned as to leave a large mass of debris without removal of which the necessary repairs to the premises could not be made; that pursuant to the terms of the lease and the sublease the owner and lessor of the premises decided to repair the damage caused by the fire and that such repairs could not be made without removing the debris; that plaintiff and defendant were required to remove the same; that plaintiff requested defendant to remove the debris and it neglected and refused to do so; that because defendant refused to remove the debris, plaintiff was obliged to remove it at an expense of $1,995.40, for which judgment is demanded, and was further damaged by loss of rent.

The terms of the lease referred to provide that the lessor, in case of partial damage of the premises by fire rendering the premises untenantable, shall repair the building, rent to cease until it is put in complete repair.

The answer in substance asserts that defendant was under no obligation to remove the debris.

Plaintiff and defendant both moved for judgment on the pleadings. The Special Term granted plaintiff’s motion and denied defendant’s motion. The Appellate Division reversed the order granting plaintiff’s motion and denied the motion and reversed the order denying defendant’s motion and granted the motion.

The only question is whether the complaint states facts sufficient to constitute a cause of action. The answer depends upon the duty assumed by the subtenant implied in law from the terms of the lease and sublease.

In Fleischman v. Toplitz (134 N. Y. 349) it was held that, under the statute (L. 1860, ch. 345), upon the destruction by fire of a building occupied by a tenant, the relation between a tenant and his landlord is dissolved, unless the tenant elects to continue, and that, in the absence of such an election, the tenant is under no obligation to remove the bodies of horses burned to death in the fire from the premises. “ The damage to the real estate and the burden cast upon it by the fire must in such case be borne by the landlord and not by the tenant.”

The lease in question herein was not terminated by the fire. “ The same [the building] shall be repaired as speedily as possible at the expense of the lessor, and in case the damage shall be so extensive as to render the building untenantable the rent shall cease until such time as the building shall be put in complete repair.” The lessor reserved the right to repair the premises, and to keep the lease in force unless the repairs were not completed within four months from the date of destruction by fire, in which case the lessee might at its option terminate the lease upon payment of rent up to the time of the damage by fire. The tenant was not free to depart from the untenantable premises or terminate the lease. Obviously it had no right to exclude the landlord from the premises for the purpose of making the repairs. But its failure to remove the debris did not amount to a constructive exclusion of the landlord. The landlord was free to enter to remove the debris and make the repairs. The analogy of the Fleischman case seems plain. The tenant is discharged from payment of rent until the building is put in complete repair. During that period, the landlord must accept the burden cast upon him by the fire. If he has to remove debris to make the repairs, that is a part of the burden. If that burden is onerous, he should guard against it by suitable covenants in the lease.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    Elvira T. Boissevain, Appellant, v. Daniel G. Boissevain, Respondent.
    (Submitted October 15, 1929;
    decided November 19, 1929.)

      Charles J. Nehrbas for appellant.
    The complaint states a cause of action for past due alimony. (Beeck v. Beeck, 211 App. Div. 720; Miller v. Miller, 219 App. Div. 61; 246 N. Y. 636; Clapp v. Clapp, 221 App. Div. 754.) The plaintiff is entitled to the remedies provided by sections 1171 and 1172 of the Civil Practice Act. (Van Deventer v. Mortimer, 56 Misc. Rep. 650; Foster v. Stevens, 63 Vt. 175; Lynde v. Lynde, 162 N. Y. 405; Moore v. Moore, 208 N Y. 97; Tiedemann v. Tiedemann, 172 App. Div. 819; Gould v. Gould, 235 N. Y. 14; Johnson v. Compagnie Generate Transatlantique, 242 N. Y. 381; Wemple v. Wemple, 219 App. Div. 241.)

      Ralph Stout for respondent.
    Except so far as jurisdiction is expressly conferred by statute, the courts of this State may not enforce, by way of specific equitable relief, a judgment for alimony rendered in another State or country. (Lynde v. Lynde, 162 N. Y. 405; 181 U. S. 183; Wood v. Wood, 7 Misc. Rep. 579.) Sections 1171 and 1172 of the Civil Practice Act have no application to a judgment of divorce obtained in a foreign country. (Lynde v. Lynde, 162 N. Y. 405; 181 U. S. 183; Bullock v. Bullock, 52 N. J. Eq. 56; Moore v. Moore, 143 App. Div. 428; 208 N. Y. 97; Tiedemann v. Tiedemann, 172 App. Div. 819; Hilton v. Guyot, 159 U. S. 113; Gould v. Gould, 235 N. Y. 14; Hubbard v. Hubbard, 228 N. Y. 81; Polhemus v. Fitchburg R. R. Co., 123 N. Y. 502; Matter of N. Y., W. & B. R. R. Co., 193 N. Y. 72; Astor v. Mayor, 62 N. Y. 567.) Plaintiff’s action is brought in equity; and the motion to dismiss the amended complaint having been made before answer, the court below properly granted the motion, upon determining that the amended complaint does not state facts sufficient to constitute a cause of action in equity. (Moore v. Moore, 143 App. Div. 428; Standard Film Co. v. Alexander Film Co,, 214 App. Div. 701; Low v. Swartwout, 171 App. Div. 725; Gosselin Corp. v. Taparelli, 191 App. Div. 580; 229 N. Y. 596; Page v. St. Lawrence Condensed Milk Corp., 213 App. Div. 336; banks v. Gordon, 119 Misc. Rep. 571.)
   O’Brien, J.

These parties were married in New York. Plaintiff, the wife, obtained in Holland, where the husband was domiciled, a judgment for absolute divorce on the ground of adultery. Personal service had been made upon him and he had appeared by attorney. Alimony, payable in equal quarterly installments, was awarded. Then, in this State, the wife sued upon the Dutch judgment and obtained one here for a sum representing the arrears of alimony up to and including February 14, 1926. Only a small part of it has been paid. The complaint in the present action alleges the foregoing facts and for relief demands the amount payable under the foreign judgment between February 14, 1926, and the date of the entry of judgment in this action. It also demands equitable relief by way of a direction to defendant to make future payments in accordance with that judgment as well as its enforcement in the same manner as one rendered by the courts of this State. At Special Term the motion to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action was denied. The order of denial was reversed by the Appellate Division and the complaint dismissed but without prejudice to the institution of an action at law.

The relief demanded in the complaint cannot be accorded. While the Dutch judgment is entitled to recognition in this State (Gould v. Gould, 235 N. Y. 14), the prayer for relief is, in one instance, too vague and, in the other instance, too broad.

It is too vague because it does not demand any specific sum of money, but merely the amounts payable under the foreign judgment between February 14, 1926, and the date of the entry of judgment in this action. As the Appellate Division decided, recovery may be had in an action at law only for the specific amount due at the time of the commencement of the action. The appropriate remedy upon the facts alleged is, therefore, different from that asked for in the pleading. Accordingly, pursuant to the provisions of section 111 of the Civil Practice Act, this court is empowered, instead of affirming the dismissal of the complaint, to remit the case to Special Term in order that the relief may be finally granted which is appropriate to the facts.

The second relief demanded is too broad because the complaint seeks enforcement of the foreign judgment by a form of equitable relief which is inappropriate to the facts as pleaded. This is a type of foreign judgment for which no provision is made for enforcement in the same manner as a judgment for the payment of alimony rendered by courts of this State. Sections 1171 and 1172 of the Civil Practice Act control the remedies in cases of judgments obtained in other States for absolute divorce on the ground of adultery. (Moore v. Moore, 208 N. Y. 97.) Those remedies are applicable only to such judgments as have been obtained in one of the States of this Union. The statute, as interpreted by the Appellate Division and now by us, does not include judgments which are truly foreign. The expression another state in sections 1171 and 1172 is not used in its generic sense. Of course, in its broadest meaning, a State includes any independent political sovereignty, but the Legislature, using the expression this state ” coupled with the words another state ” in both these sections, must be deemed to have intended to distinguish only between the State of New York and any other member of the American Union. If this restricted meaning had not been contemplated, the statute doubtless would have included language such as "a foreign country ” or any other jurisdiction ” or words of similar import.

The complaint, therefore, fails to state a cause of action for equitable relief. With an amendment, however, limiting the arrears to the date of the commencement of this action, recovery may be had for such specific amount. The judgment should be-modified by reversing so much thereof as dismissed the complaint and the case remitted to the Special Term for appropriate relief, and as so modified affirmed, without costs.

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

Judgment accordingly.


author: Cardozo, Ch. J.

text:
    In the Matter of the Claim of Rosie Libertucci et al., Appellants, against New York Central Railroad Company, Respondent. State Industrial Board, Respondent.

      (Argued October 3, 1929;
    decided November 19,1929.)

      John J. McManus for appellant.
    The decedent was not engaged in interstate commerce at the time of the accident, and this case is not controEed by the Federal Employers’ Liability Act. (Leslie v. Long Island R. R. Co., 222 App. Div. 702; 248 N. Y. 511; Carey v. N. Y. C. R. R. Co., 250 N. Y. 345; Grigsby v. Southern Ry. Co., 3 Fed. Rep. [2d] 988; 268 U. S. 704; Illinois Cent. R. R. Co. v. Peery, 242 U. S. 292; Illinois Cent. R. R. Co. v. Behrens, 233 U. S. 473; Smith v. Interurban R. R. Co., 186 Ia. 1045; 253 U. S. 499; Erie R. R. Co. v. Welsh, 242 U. S. 303; Chicago, B. & Q. R. R. Co. v. Harrington, 241 U. S. 177; Shanks v. D., L. & W. R. R. Co., 239 U. S. 556; Chicago Junction Ry. Co. v. Industrial Board, 277 Ill. 512; Minneapolis & St. L. R. R. Co. v. Winters, 242 U. S. 353; Boats v. Pennsylvania R. R. Co., 193 App. Div. 347; Matter of Fairchild v. Pennsylvania R. R. Co., 170 App. Div. 135; Giovio v. New York Central R. R. Co., 176 App. Div. 230; 223 N. Y. 653; Gallagher v. N. Y. Cent. R. R. Co., 180 App. Div. 88; 222 N. Y. 649; 248 U. S. 559; Conklin v. N. Y. Cent. R. R. Co., 206 App. Div. 524; 238 N. Y. 570; Central R. R. of N. J. v. Paslick, 239 Fed. Rep. 713.)

      Robert E. Whalen for respondent.
    The claim was properly dismissed. Decedent was employed in interstate commerce by the railroad. (North Carolina R. R. Co. v. Zachary, 232 U. S. 248; Baltimore & Ohio R. R. Co. v. Kast, 299 Fed. Rep. 419; 266 U. S. 613; Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146; Erie R. R. Co. v. Collins, 253 U. S. 77; Scelfo v. B., R. & P. Ry. Co., 211 App. Div. 243; N. Y. C. R. R. Co. v. Winfield, 244 U. S. 147; Southern Ry. Co. v. Puckett, 244 U. S. 571; N. Y. C. R. R. Co. v. Porter, 249 U. S. 168; Kinzel v. C., M. & St. P. Ry. Co., 250 U. S. 130; Southern Pacific Co. v. Industrial Accident Comm., 251 U. S. 259; Phila. & Reading Ry. Co. v. DiDonato, 256 U. S. 327.)
   Cardozo, Ch. J.

Peter Libertucci was a watchman or helper in the service of the respondent, an interstate carrier. A piece of coal, falling on his ankle, broke the skin, and set up an infection which resulted in his death. A claim by dependents under the Workmen’s Compensation Law (Cons. Laws, ch. 67) has been dismissed upon the ground that he was engaged in interstate commerce when the accident befell him.

Libertucci’s duty was to watch an engine between trips and have it ready for use. The engine was assigned to trains 1008 and 1007. Train 1008 ran daily from Utica to Ravena, arriving at the latter place about 10 A. m. Train 1007 ran daily from Ravena to Utica, starting at 4 p. M. No other trains for passengers ran between those points. The helper, when injured, was shoveling coal into the engine to prepare it for its trip. The record does not show the exact hour of the accident. It occurred, however, in the yard before the time for coupling the engine to the train.

The trip between Ravena and Utica is wholly in New York. Even so, its quality as interstate commerce is not lost if packages carried by connecting lines from points without the State are received upon the local train as part of a continuous transit, and then forwarded beyond (North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 260). The testimony is that on the return trip that afternoon a parcel post package consigned from Millertown, Ohio, went out on 1007 to its point of destination. Other interstate packages there may have been, though there is a record of only one in the report of the conductor. The practice was to limit the report to one, picked out by the conductor to serve as an example, without reference to the number that could have been added to the list. In point of fact, there was never a trip on which interstate business was lacking altogether.

The claimants concede, as they must, that Libertucci’s work in putting the engine in order for the trip that afternoon would have been a part of interstate commerce if at the time of the accident the interstate package was already in Ravena, ready to be put upon the train. They say, however, that for all that appears, the interstate package at that hour was on its way from Ohio, with the possibility that it might not arrive till the afternoon train had gone, or might be held back after arrival and go forward the next day. Possibilities such as these do not .affect the inferences that follow from the normal course of business. The normal course of business was such that parcel post, on its way at the time of the accident from a point without the State, was due to arrive at Ravena before this engine could go out. The normal course of business meant besides that being parcel post, the package would be transferred to any waiting train available and dispatched without delay. The only train available that day or any other was train 1007, to which this engine was assigned. In such circumstances, the care of the engine was not a matter of indifference ” so far as interstate commerce was concerned (Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146, 151). It was preparation for that commerce in fulfillment of existing needs. The distinction is illusory between fitting an engine for the carriage of a package that is already in the yard, and fitting it to carry a package presently to arrive. In each case some unlooked for casualty, such as the destruction of the package, may make the work abortive. The reasonable exigencies of commerce in the light of presently existing facts must fix the nature of the service, the field of its utility (B. & O. R. R. Co. v. Darling, 3 Fed. Rep. [2d] 987).

Nothing to the contrary was determined in Carey v. N. Y. C. R. R. Co. (250 N. Y. 345). There the engine was not assigned to any particular train when the engineer was injured. No one could say, even with full knowledge of the facts, whether the train to be hauled would be in interstate or in local commerce. Here the present facts, if known, would have disclosed the present need. It is unimportant whether the worker knew them when he made the engine ready. It is enough that they were present facts (Carey v. N. Y. C. R. R. Co., supra, at p. 352; Cott v. Erie R. R. Co., 231 N. Y. 67, 71).

The order should be affirmed with costs.

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

Order affirmed.