text:
    The People of the State of New York, Respondent, v. Samuel Elmore, Appellant.
    Argued March 14, 1938;
    decided April 12, 1938.

      William C. Casey, Peter F. Gulotta and George Fogler for appellant,
    The trial court’s charge on the burden of proof as to alibi misstated the law and constitutes reversible error. (People v. Barboto, 254 N. Y. 170; People v. Shanley, 49 App. Div. 56; Ackerson v. People, 124 Ill. 563; People v. Stone, 117 N. Y. 480; State v. Henry, 48 Iowa, 403; Dawson v. State, 62 Miss. 241; State v. Woolard, 111 Mo. 248; People v. Stone, 117 N. Y. 480; People v. Allocca, 183 App. Div. 571; People v. Epaski, 57 App. Div. 91; People v. Cantor, 71 App. Div. 189; People v. Montlake, 184 App. Div. 578; People v. Russell, 266 N. Y. 147; People v. Pignataro, 263 N. Y. 229.) The trial court erred in its rulings upon the question of the unreasonable detention of the defendant. (People v. Marendi, 213 N. Y. 600; People v. White, 176 N. Y. 331; People v. Rogers, 192 N. Y. 331; People v. Pignataro, 263 N. Y. 229; People v. Mummiani, 258 N. Y. 394; People v. Alex, 265 N. Y. 192.)

      Frank H. Innes, District Attorney (Thomas K. Hall of counsel), for respondent.
    The erroneous statement of the trial court respecting the law of alibi, when viewed in conjunction with the main charge in toto and the overwhelming evidence of the defendant’s guilt, did not mislead the jury or prejudice the substantial rights of the defendant. (People v. Barbato, 254 N. Y. 170; People v. Walsh, 248 N. Y. 553; People v. Russell, 266 N. Y. 147; People v. Johnson, 185 N. Y. 219; People v. Koenig, 180 N. Y. 155; People v. Stone, 117 N. Y. 480; People v. Allocca, 183 App. Div. 571; People v. Cohen, 223 N. Y. 406.) In the absence of violence or intimidation of any kind and in light of the defendant’s first confession within twenty-six hours after his arrival at the police station, the circumstance of detention was a negative influence in the jury’s determination of the issue relating to the voluntariness and truth thereof, and the omission of the trial court to charge was harmless in nature. (People v. Schermerhorn, 203 N. Y. 57; People v. Doran, 246 N. Y. 409; People v. Weiner, 248 N. Y. 118; People v. Pignataro, 263 N. Y. 229; People v. Randazzio,
      194 N. Y. 147; People v. Stone, 117 N. Y. 480; People v. Trybus, 219 N. Y. 18; People v. Kennedy, 159 N. Y. 346; People v. Rogers, 192 N. Y. 331; People v. Brasch, 193 N. Y. 46; People v. White, 176 N. Y. 331.)
   Crane, Ch. J.

The defendant has been convicted of murder in the first degree for having killed a little girl, Joan Kuleba, on Staten Island (Richmond county) on the 12th day of August, 1937, after or during a sexual assault upon her. It was a revolting crime and one over which indignation against the perpetrator rises as the evdence is read, but yet legal judgment must be kept in the balance and the case examined to determine whether the defendant’s life has been forfeited by our rules of law. Twice the defendant confessed, and the confessions were taken down in writing and signed by him after he had read them. Corroboration of these confessions, as required by section 395 of the Code of Criminal Procedure, was provided by the testimony of a man named Flick; the discovery of the child’s shoes and the bottle containing grasshoppers caught for the child by the defendant.

There is sufficient evidence if believed to justify the jury in finding the defendant guilty beyond a reasonable doubt, and yet we are obliged to reverse the judgment for reasons which we shall now explain.

There is another side which must be considered in the way the law of this State directs. The jury cannot brush it aside; neither can we say it is of little or no consequence.

On the morning of August 12, 1937, the defendant is alleged to have taken this little girl, Joan Kuleba, from South Beach, Staten Island, to a shack in the meadows or marshes, and there raped and killed her. He tells this in his confession. William Flick, a coach operator for the Staten Island Coach Company, was operating on Norway avenue and Olympia boulevard towards South Beach when he saw the defendant and this little girl walking in the street. She was dressed, all admit, in a red bathing suit. The time he places as follows: “ Between 1:00 and 1:01, one minute after one that afternoon. * * * Why the child looked like she was about six years old to me, a girl would be about six years old, I can’t say just how tall or anything she was.” He identified the defendant in court as the man.

The confession of the defendant confirms Flick’s testimony of this meeting. Both knew each other.

After the assault, the defendant went home according to his story; spent the night, and the next day, Friday, the 13th, returned to the scene of the crime, saw the child was dead, went back to the beach and asked someone to notify the police. When the police came, they found the defendant on the spot, the warning having been given by him.

Leaving out the confession, we have established facts of • the death of the child, her body in the shack, and the defendant notifying the police that a murder had been committed. The other independent fact outside of his confession is the testimony of Flick that the little girl and Elmore were seen on the day of the crime in the street some distance from the beach.

The defendant did not take the stand and our law says his failure so to do shall create no presumption against him. (See Code Crim. Proc. § 393.) This always strikes the layman as somewhat strange but such has been the law for many years and we, as well as the jury, are obliged to obey it. In other words, the defendant must be proved guilty by the testimony, or as the case comes to us for a review of the facts, must be proved guilty beyond a reasonable doubt upon the record after a trial according to fundamental rules of evidence.

Thus we have the case — Flick saw the defendant with the child at one o’clock p. m., on Thursday, the 12th. The defendant confesses according to the testimony of the police officers. The defense is, first, that the confession was made under duress or while the defendant was confined in jail or the police station from Friday until Monday, without being taken before a magistrate as required by section 165 of the Code of Criminal Procedure, and, secondly, that he could not possibly have committed the crime because he was elsewhere at the time — the defense is an alibi.

To the evidence of Elmore’s absence we must give serious attention. The defendant’s wife says that he was home for lunch between twelve and one o’clock and that he went out thereafter to do errands for her at various stores and returned about four o’clock. The defendant’s house is more than three miles from South Beach and as he had no car, and the evidence shows no other means of transportation (except railroads), it would have at least taken the defendant some time to traverse the distance between South Beach and his home on foot. His whereabouts is accounted for by eighteen witnesses, many of whom are merchants or employees having little or no interest in the defendant.

The People’s witness Selma Goller saw the little girl on the beach about twelve-thirty shortly after lunch.” At about noon of that day Elmore, the defendant, was seen by Emma Keil and A. C. Baccarezza at a place about three miles from the beach. Baccarezza worked for the A. & P. Tea Company and saw the defendant in the store where he worked, apparently in Stapleton. Mrs. Elmore, the defendant’s wife, says that he was at home at twelve-thirty-five. As has been said, this was all of three miles from the beach, or the scene of the crime. Mathilda J. McKittrick, who lived about three blocks from Elmore, saw him pass her house on the day of the 12th about twelve-thirty, possibly one o’clock. Louis Ginnis and Enroco Boggenao saw bim between one and three o’clock in the afternoon about three miles from the scene of the occurence. Mrs. Elmore stated that she had sent the defendant after lunch on various errands in and about Stapleton; and the defendant produced the storekeepers and tradesmen to show that he had executed this commission, and had made purchases in the stores between one and three or four o’clock. For instance, between one-thirty and three-thirty he bought bengue at a drug store from Louis Ginnis. Edward Harris sold defendant a pair of trousers about three p. m., and sent him to Da Lecy to have them altered. Da Lecy altered the trousers between three and three-thirty p. m. Albert W. Miller, James McMahon, and James’B. Kelly, all of the A. & P. Store in Stapleton, saw the defendant between three and four p. m., in the store. Ellen Feldrapp sold the defendant a hucldeberry pie and a loaf of Vienna bread, between three and four p. m. The defendant had a few beers ” in a saloon between three and four p. m., and was served by John Techky. He had the groceries with him at the time, and arrived home with them about four p. m. We notice that some of these witnesses are quite positive in placing the defendant as far as thrée miles away from South Beach at the time when the child is alleged to have been taken from South Beach and to have been seen with the defendant at Olympia boulevard and Norwood avenue. Of course all these witnesses may have been mistaken as to the time. It is somewhat difficult to believe that these storekeepers and clerks would be deliberately falsifying about the matter. However, we must remember that the jury were called upon to face an issue and to decide it either for or against the defendant; and if against him, they were to be convinced of their conclusion beyond a reasonable doubt.

Did the evidence produced by the defendant create a doubt as to whether he could have been the man who took the little girl from South Beach around noon of Thursday, the 12th, and the man seen by Flick with her on the street? That the defendant should have returned the next day to the scene of the crime, and then himself have notified the police of the murder, might also bear in some way upon the consideration of these points. Be it far from us to trespass upon the prerogatives of the jury or even to suggest or intimate that the evidence does not weigh strongly against the defendant. It does. What we are attempting to explain here so that it will appear clearly is that there was a fair issue of fact for the jury; the guilt or innocence of the defendant was for the jurymen to determine; there was evidence in behalf of the defendant creating a question of fact, and we must, therefore, go further and see whether or not the jury were properly instructed on the law governing their deliberations.

The court was asked to charge the following:

“Mr. Gulotta: May I further respectfully ask your Honor to charge that by section 165 of the Code of Criminal Procedure, the defendant must in all cases be taken before the Magistrate’s Court without unnecessary delay.

“ The Court: I think I have sufficiently covered that question.

“ Mr. Gulotta: I ask your Honor to charge that the violation by the Police of this Statute, that is, Section 165, which calls for prompt arraignment, is a crime under Penal Law, Section 1841.

“ The Court: I decline to so charge.

“Mr. Gulotta: I respectfully except. I ask your Honor to charge the Jury that the detention of the defendant in the Police Station from Friday, August 13th, to Monday, August 16th, is a circumstance to be weighed by the jury in determining whether a confession has any testimonial value.

“ The Court: I think I have sufficiently covered that, gentlemen.” (It was not mentioned.)

The Code of Criminal Procedure, section 165, reads:

Defendant in all cases to be taken before a magistrate without delay. The defendant must in all cases be taken before the magistrate without unnecessary delay, and he may give bail at any hour of the day or night.”

In People v. Alex, 265 N. Y. 192, 194, we said:

Here there was delay of almost thirty-six hours. Even where the police, for thirty-six hours, illegally delay arraignment after arrest, for the purpose of obtaining a confession, the confession is admissible, unless made, under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he (the defendant) shall not be prosecuted therefor.’ (Code Crim. Proc. § 395.) Nevertheless, in determining whether a confession has been obtained as a result of a beating, or is voluntary, the circumstance that it was obtained while arraignment was illegally delayed for no apparent reason except that the police needed a confession in order to have competent proof of the commission of a crime, should be considered by the jury (People v. Trybus, 219 N. Y. 18.) In every case where there is a substantial question of the voluntary nature of a confession obtained while a defendant is in the custody of the police,, and arraignment is delayed, it is the duty of the trial judge, at least upon request of counsel, to charge that any unnecessary delay ’ in arraignment is forbidden by law and should be considered by them.” Delay in arraignment does not exclude a confession.” (People v. Doran, 246 N. Y. 409, 423.)

While there was no evidence of violence used upon the defendant, and there is no claim that he was promised immunity, yet the jury may always consider, in fact must consider, whether the confession has been voluntarily made — that is, has not been produced by fear or under such circumstances and conditions as to lead one to believe that it was not the truth. Even when a confession is admitted in evidence, even when it is conceded to have been made, yet its truth is always a question for the jury and, in determining this, the jury must have all the circumstances surrounding its making. The jurors have the right, therefore, as has been stated by this court, to consider the detention of the defendant from Friday to Monday, while confessions were being taken, In this case the detention may have had no effect whatever upon the defendant, and all that he said may be true but, nevertheless, this is not for the court, but the jury, to say; in coming to a decision the jurors must consider the continued restraint.

We do not say that we would reverse this case if this were the only error but, coupled with one more serious, we feel that even this cannot be overlooked.

We have stated the evidence and the issue regarding the alibi, in order that the charge to the jury upon this point may also be understood. In a criminal case the defendant never has the burden of proof. The People must prove the case against him beyond a reasonable doubt. In the case of an alibi, naturally he produces his evidence to show that either he is not the man, or else that he could not be the perpetrator of the crime, as he was elsewhere at the time of its commission. If this evidence creates a doubt — a reasonable doubt — in the mind of the jury, he muse be acquitted. Never is he called upon to prove his defense beyond a reasonable doubt. (People v. Barbato, 254 N. Y. 170, 178, 179; People v. Stone, 117 N. Y. 480, 484.) This court said in the former case:

“ If the proof as to an alibi raises a reasonable doubt in the minds of the jury as to whether the accused was present at the place and time where and when the crime was committed, the accused is entitled to have the defense fairly treated like any other defense and is not obliged to establish that it was impossible for him to commit the act charged. If under the evidence tending, if true, to prove an alibi, it may have been possible for the defendant to have committed the crime, it is still for the jury to determine whether, if the evidence is true, he availed himself of the possibility it afforded. * * * The instructions of the court were too strict in this respect. E the proof as fco an alibi, when taken into consideration with all the other evidence, raises a reasonable doubt as to defendant’s guilt, he is entitled to an acquittal.” (See, also, Brotherton v. People, 75 N. Y. 159, 163.)

As to Elmore’s defense, the judge charged:

“ The burden of disproving the alibi .rests upon the People. If you are satisfied beyond a reasonable doubt with the alibi, and that the alibi covers the time of the commission of the crime; the proof of the alibi, with all the other evidence, may raise a reasonable doubt as to the defendant’s presence at the place of crime, and the defendant should then be acquitted.” We must not be captious or unduly critical and, although this charge is somewhat confused because of the words. “ If you are satisfied' beyond a reasonable doubt with the alibi,” yet we would pass it, were it not for the clear and definite explanation which the trial judge made in reply to a request:

Mr. Gulotta: I further ask your Honor to charge that the defense of alibi need not necessarily be established by the defendant beyond a reasonable doubt, but, quite to the contrary, the jury may give to it such credence as in their opinion it should be given.

“ The Court: I think I have sufficiently covered that, gentlemen. I informed you that the defense of alibi, like every other defense, may be proved and must be proved beyond a reasonable doubt by the defendant.” This is not the law. No matter how strong the evidence may be against the defendant, we cannot overlook such a fundamental error, especially in view of what we have said the evidence shows upon the question of the defendant’s whereabouts.

The judgment of conviction should be reversed, and a new trial ordered.

Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgment of conviction reversed, etc.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Beatrice Smith, Appellant, v. Theresa Clute, Respondent.

      Argued March 10, 1938;
    decided April 12, 1938.

      Warren Sears for appellant.
    Plaintiff paid for her transportation and was not a gratuitous guest or invitee of the defendant and never was within the provisions of the statute. (Laws of Montana, 1931, ch. 195.) The parties being engaged in a joint enterprise for their mutual benefit had the same effect. (Higgins v. Mason, 255 N. Y. 104; Dennett v. Goelet, 296 N. Y. Supp. 393; Mahnken Co. v. Pelletreau, 93 App. Div. 420; Chooljian v. Nahigan, 273 Mass. 396; Russell v. Parlee, 115 Conn. 687; Kruy v. Smith, 108 Conn. 688; Dietz v. Dinkel, 230 App. Div. 699; Ferris v. Sterling, 214 N. Y. 249; Webb v. Elmira Water, Light & R. R. Co., 144 Misc. Rep. 506; Mencher v. Goldstein, 240 App. Div. 290; Webber v. Graves, 234 App. Div. 579; Lyttle v. Monto, 248 Mass. 340.)

      John H. Barker, James McPhillips and Cornelius E. Fitzgerald for respondent.
    The court below correctly decided that as a matter of law the Montana statute prevents a recovery by the plaintiff on the facts of the case. (Sapone v. N. Y. C. & H. R. R. R. Co., 130 Misc. Rep. 755; Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28; 153 N. Y. 688; Haus v. Erie R. R. Co., 89 Misc. Rep. 416; Hall v. Hamel, 244 Mass. 464; Master v. Horowitz,
      237 App. Div. 237; 262 N. Y. 609; Olefsky v. Ludwig, 242 App. Div. 637; Rogers v. Vreeland, 60 Pac. Rep. [2d] 585; Ashowith v. Massell, 260 Mass. 202; Chaplowe v. Powsner, 119 Conn. 188; Leete v. Griswold Post of American Legion, 158 A. L. R. 919; TeSelle v. Terpstra, 38 Pac. Rep. [2d] 379; Crawford v. Foster, 110 Cal. App. 81.) The plaintiff cannot succeed on the theory of a joint venture. (Cambridge Home Tel. Co. v. Harrington, 127 Ohio St. 1; Scherer v. Southern Pacific Co., 35 Pac. Rep. [2d] 356; Miles v. Rose, 175 S. E. Rep. 230.)
   Finch, J.

This is a suit for personal injuries. The question presented for decision is whether a statute of the State of Montana, permitting a guest to sue only for gross negligence, precludes recovery here.

The plaintiff, the defendant and their two companions, all teachers at the same school, decided to take an automobile trip to California. After discussion, the route to be traversed was agreed upon, and it was also agreed that the expenses of the operation of the car, for gasoline, oil and other incidental expenses, should be borne equally by all four. Each member of the party contributed $10.50, which was used for preliminary expenses (apparently this was for payment of premium on an automobile liability insurance policy), and each contributed $50 toward a general fund from which the expenses of operation were paid. The defendant donated the use of her automobile for the trip. While traveling through the State of Montana, the defendant, in passing a car going in the opposite direction, drove off the road into a pile of sand or gravel. Plaintiff received a severe jolt, which resulted in a Sacro-iliac sprain of her right hip. The trial court submitted to the jury the question whether the defendant was guilty of negligence and the jury returned a verdict in favor of the plaintiff. The Appellate Division, one justice dissenting, reversed and dismissed the complaint on the ground that the Montana guest statute was applicable; that, therefore, plaintiff could not recover unless defendant was guilty of gross negligence or recklessness, and that as a matter of law there was no evidence of gross negligence or recklessness on the part of the defendant.

The accident occurred in Montana, and the law of that State governs the plaintiff’s right of action. Montana has a guest statute, the relevant portions of which are as follows:

“An Act Releasing Owners and Operators of Motor Vehicles from Responsibility for Damages or Injuries to Gratuitous Passengers * * *.

“ Section 1. The owner or operator of a motor vehicle shall not be liable for any damages or injuries to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire * * * -unless damage or injury is caused directly and proximately by the grossly negligent and reckless operation by him of such motor vehicle.

“ Section 2. Any person riding in a motor vehicle as a guest or by invitation and not for hire, assumes as between owner and guest the ordinary negligence of the owner or operator of such motor vehicle.” (Montana, Laws of 1931, ch. 195.)

It is for this court to determine whether the plaintiff was riding “as a guest or by invitation and not for hire ” within the meaning of the Montana statute, so as to bar recovery by her in the absence of gross negligence or recklessness on the part of the defendant. Apparently the courts of Montana have not passed on this question. Guest statutes, similar to that of Montana, have been enacted in many other States.

These statutes being in derogation of the common law have been strictly construed. It has been held in general that if there is mutual benefit or any benefit at all conferred upon the owner or operator of the automobile by the presence of the passenger, the latter is not regarded as a guest and may recover as in the ordinary case of negligence. Such benefit has been found where the passenger was a servant of the owner or operator of the car (Kruy v. Smith, 108 Conn. 628; Knutson v. Lurie, 217 Iowa, 192; Garrett v. Hammack, 162 Va. 42; Hart v. Hogan, 173 Wash. 598. Cf. Labatte v. Lavallee, 258 Mass. 527); where the plaintiff was a prospective purchaser of the automobile (Crawford v. Foster, 110 Cal. App. 81; Bookhart v. Greenlease-Lied Motor Co., 215 Iowa, 8); where the passenger was a prospective customer for products sold by the owner or operator (Piercy v. Zeiss, 8 Cal. App. [2d] 595; Foale v. Linsky, 279 Ill. App. 58. Cf. Streeter v. Locke, [Mass.] 4 N. E. Rep. [2d] 297); where the plaintiff was assisting the defendant in obtaining work for himself or another (Cardinal v. Reinecke, 280 Mich. 15. Cf. Elkins v. Foster, [Tex. Civ. App.] 101 S. W. Rep. [2d] 294); where the parties were co-employees going to work or business co-adventurers (Bree v. Lamb, 120 Conn. 1; Chumley v. Anderton, 20 Tenn. App. 621); and where the plaintiff was otherwise assisting the defendant (Summer v. Edmunds, 130 Cal. App. 770; Poole v. Kelley, 162 Va. 279. Cf. Semons v. Towns, 285 Mass. 96).

The reasoning upon which these decisions are based is well stated in Knutson v. Lurie (supra):

One may be a passenger in an automobile without being a guest, a mere passenger by invitation, or a passenger for hire in the legal sense of the word. There are, in fact, a multitude of persons riding in cars daily who are not guests, passengers by mere invitation, or passengers for hire within the legal meaning of that term. A person riding in an automobile may be there because of the relationship of master and servant existing between him and the owner. In other instances, the rider in an automobile may be there (without the relationship of master and servant) for the definite and tangible benefit of the owner or operator; or such person may be in the automobile (without the relationship of master and servant) for the mutual, definite, and tangible benefit of the owner or operator on the one hand, and of himself on the other. [Cases cited.] When the legislature of Iowa used the phrase in section 5026-bl, before quoted, to wit, as a guest or by invitation and not for hire/ its evident attempt was to exclude recovery by a guest or a mere invitee except for the reckless operation of the automobile. The use of the phrase 1 and not for hire ’ was merely to aid in the understanding of the meaning of the word £ guest ’ and of the phrase by invitation. ’ By using those words and phrases, the legislature did not intend to include all persons who might from time to time ride in an automobile, as before explained. It is evident that the intent of the legislature, therefore, was to recognize nongratuitous riders in an automobile, as well as a guest and a mere invitee. Likewise, it is apparent that the legislature intended to distinguish between passenger for hire/ as that term is used in law, and other nongratuitous riders in an automobile. Through the legislation, a safeguard against the prevalent claims for damages by guests or mere invitees was placed around the owner and operator of the car ” (pp. 195, 196).

The title of the Montana statute refers to ££ gratuitous passengers.” There can be no doubt that the plaintiff was not a gratuitous passenger. She paid her share of the expense, and it cannot be said that she was traveling free. It is true that the language of the statute makes it applicable to one riding ££ as a guest or by invitation and not for hire,” but clearly the phrase “ and not for hire ” does not stand by itself. The mere fact that the passenger has not hired the automobile does not bring her within the scope of the statute. To come within its purview she also must be riding as ac guest or by invitation.” The statute applies only to gratuitous guests and invitees who are not passengers for hire. It does not, as the defendant contends, apply to every passenger who is not a passenger for hire. Such a construction would make it applicable to non-gratuitous passengers who are not passengers for hire, and this necessarily would include employees, potential customers and the others, who have been held well nigh universally not to come within the scope of guest statutes. Not to be a guest is not ipso facto to be a passenger for hire. Clearly a person may be without the category of guest and yet not be within that of a passenger for hire.

The question whether sharing expenses of an automobile trip results in such benefit to the owner or operator as to take a passenger out of the purview of a guest statute, has been before the courts in a number of cases. Where there is no fixed understanding or agreement for sharing expenses, but merely a likelihood or a general statement by the passenger that he will pay his share, it is not sufficient (Ernest v. Bellville, 53 Ohio App. 110. See Sleeper v. Mass. Bonding Ins. Co., 283 Mass. 511, explaining Askowith v. Massell, 260 Mass. 202), and this court has so held in affirming a dismissal of a complaint where the Connecticut guest statute was involved (Master v. Horowitz, 237 App. Div. 237; affd., 262 N. Y. 609). On the other hand, where there is a definite agreement, as in the case at bar, a number of States have permitted recovery for ordinary negligence, holding the passenger who contributed toward the expenses was not a guest within the purview of the statute. (Beer v. Beer, 52 Ohio App. 276; Kerstetter v. Elfman, 327 Penn. St. 17; Campbell v. Campbell, 104 Vt. 468; O’Brien v. Woldson, 149 Wash. 192; Lloyd v. Mowery, 158 Wash. 341.) (Contra, McCann v. Hoffman, [Cal.] 70 Pac. Rep. [2d] 909; Morgan v. Tourangeau, 259 Mich. 598.) As Mr. Justice Stern of the Pennsylvania Supreme Court pointed out:

Had plaintiffs not made their agreement to share the expenses, defendant himself would have been obliged to pay for all the gasoline and oil consumed, and since the presence of plaintiffs in the automobile did not add in any way to the cost of operation of the car, the money furnished by plaintiffs was a clear contribution, a net saving, to defendant, reducing the amount which he would have been required to expend had he been transporting plaintiffs gratuitously. Suppose, for example, that the expenses had been calculated in advance and plaintiffs had actually paid their proportionate share to defendant before starting on the trip, stating that they were giving him the money in consideration of his transporting them to Lewes.” (Kerstetter v. Elfman, 327 Penn. St. 17, at p. 20.)

In view of the above considerations we conclude that the plaintiff is entitled to a recovery upon a showing that defendant was lacking in due care.

Whether or not the plaintiff and defendant were engaged in a joint venture, we are not called on to determine. It suffices to point out that even if they were so engaged, this would not bar a recovery by one against the other for the latter’s negligence. The negligence of one member of a joint venture such as that in the case at bar, might be imputed, if at all, to the others only in actions brought by or against third parties, and the rule of imputation of negligence is not applied in suits between the joint venturers themselves. (5 Amer. Jur., Automobiles, § 502; Harper on the Law of Torts, § 148; Wilmes v. Fournier, 111 Misc. Rep. 9; affd., 194 App. Div. 950. See Ottmann v. Village of Rockville Centre, 275 N. Y. 270, 274.)

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

O’Brien, Hubbs, Loughran and Rippey, JJ., concur; Crane, Ch. J., and Lehman, J., dissent.

Judgment accordingly.


text:
    Percy T. Jones, Respondent, v. Title Guarantee and Trust Company, Appellant.
    Argued March 3, 1938;
    decided April 12, 1938.

      Flynn L. Andrew, Edward N. Perkins, Eugene Z. Du Bose and John M. Friedman for appellant.
    There was no misrepresentation inducing the purchase of the certificate. (Canadian Agency, Ltd., v. Assets Realization Corp., 165 App. Div. 96; 1 Black on Rescission & Cancellation, § 111; Strong v. Strong, 102 N. Y. 69;
      Adams v. Gillig, 199 N. Y. 314.) The contract of purchase was made and the sale was completed prior to the delivery of the certificate. (Van Brocklen v. Smeallie, 140 N. Y. 70; Erdreich v. Zimmermann, 190 App. Div. 443; Cooke v. Millard, 65 N. Y. 352; Le Marchant v. Moore, 150 N. Y. 209; Campbell v. Rushing, 141 S. W. Rep. 133; Feldman v. Halpin, 114 Atl. Rep. 148; 116 Atl. Rep. 924; Hart v. Walsh, 84 Misc. Rep. 421; Flour City Nat. Bank v. Grover, 88 Hun, 4; Willets v. Poor, 141 App. Div. 743.) An erroneous statement in the certificate does not permit rescission. (Lappert v. Title Guarantee & Trust Co., 246 App. Div. 604; McConkey v. Title Guarantee & Trust Co., 250 App. Div. 7.) The action is barred by plaintiff’s delay and his ratification of the contract. (E. T. C. Corp. v. Title Guarantee & Trust Co., 271 N. Y. 124; Gould v. Cayuga County Nat. Bank, 86 N. Y. 75; Cobb v. Hatfield, 46 N. Y. 533; Telford v. Metropolitan Life Ins. Co., 223 App. Div. 175; 250 N. Y. 528; Trowbridge v. Oehmsen, 207 App. Div. 740; 241 N. Y. 564; Sarantides v. Williams, Belmont & Co., 180 N. Y. Supp. 741; Hoch v. Goodhart, 31 Misc. Rep. 789; Little & Ives Co. v. Lamb Pub. Co., 108 Misc. Rep. 14; McNaught v. Equitable Life Assur. Soc., 136 App. Div. 774.) The certificate should be reformed. (Pitcher v. Hennessey, 48 N. Y. 415; Born v. Schrenkeisen, 110 N. Y. 55; Northeastern Shares Corp. v. International Ins. Co., 240 App. Div. 80; 265 N. Y. 574; LeGendre v. Scottish Union & National Ins. Co., 95 App. Div. 562.)

      Andrew F. Van Thun, Jr., and Frank A. Kister for respondent.
    The defendant, having sold to plaintiff the guaranteed mortgage certificate containing the misrepresentation as to the description and extent of the mortgaged premises, upon which plaintiff relied, is bound thereby, and the plaintiff was justified in rescinding the purchase. (Rector v. T. G. & T. Co., 246 App. Div. 251; 272 N. Y. 568; Stark v. T. G. & T. Co., 249 App. Div. 717; Harriss v. Tams, 258 N. Y. 229; Leary v. Geller,
      224 N. Y. 56; Carr v. National Bank & Loan Co., 167 N. Y. 375; Butler v. Prentiss, 158 N. Y. 49; Wilson v. Randall, 67 N. Y. 338; Smith v. Richards, 13 Pet. [U. S.] 26; Coml. Credit Co. v. Third & Lafayette Sts. Garage, Inc., 226 App. Div. 235; Canadian Agency v. Assets R. Co., 165 App. Div. 96; Paine v. Upton, 87 N. Y. 327; Erdreich v. Zimmermann, 190 App. Div. 443; Hotaling v. Leach & Co., 247 N. Y. 84; Abel v. Paterno, 245 App. Div. 285.) Defendant having by the certificate sold plaintiff something it did not own, there was such a failure of consideration as to entitle plaintiff to rescind.the purchase. (Richard v. Credit Suisse, 242 N. Y. 346; Bruner v. Meigs, 64 N. Y. 506; Chapman v. City of Brooklyn, 40 N. Y. 372; Putnam v. Westcott, 19 Johns. 72; Wilson v. Randall, 67 N. Y. 338; Black on Rescission & Cancellation, § 158; Roberts v. Fisher, 43 N. Y. 159.)
   Finch, J.

Whether there was any evidence of reliance upon a misdescription in a mortgage certificate is the sole question of law presented.

This is an action at law for money had and received, based on an attempted rescission of the purchase of a $5,000 guaranteed mortgage certificate for material misrepresentations, contained in the certificate itself. The defendant counterclaimed seeking reformation of the certificate. The justice at Trial Term granted a judgment in favor of the plaintiff, which has been affirmed. Leave to appeal was granted by this court.

The evidence is practically undisputed. The defendant was engaged in the sale of guaranteed mortgages and guaranteed mortgage certificates for investment. The plaintiff visited the office of the defendant with a check for $10,000, and said that he wished to invest in mortgage certificates so arranged that the interest would not be paid in the same months. The plaintiff purchased two certificates for $5,000 each with interest payable in different months. In connection with the certificate sued upon, plaintiff was given a receipt showing the purchase of an undivided share for $5,000 in a bond and mortgage covering property located in Kings county. No description or boundaries of the mortgaged premises appeared in this receipt, but it did specify the number of the mortgage certificate. Several days later the defendant mailed the certificate to the plaintiff. The certificate stated that the mortgage covered property on the north side of Boardwalk to southerly side of Brighton Beach Avenue between Lakeland Place and East 4th Street.” Actually the mortgaged premises, as shown by the bond and mortgage, extended from the Boardwalk to Brighton Beach Court. Brighton Beach Court was nearer the Boardwalk than Brighton Beach Avenue, so that the certificate, because of the clerical error in writing avenue ” for u court,” stated that the mortgage covered property of greater extent than that described in the mortgage instrument.

About eighteen months elapsed before the plaintiff looked at the property described in the certificate. Interest was received on this investment by the plaintiff for a period of six years. Then there was a default and in June, 1934, the plaintiff received a Schackno Plan of Reorganization, which correctly described the mortgaged premises. Prior to the receipt of this Schackno Plan, plaintiff had signed a consent to the modification or extension of the mortgage. Several documents connected with the extension of the mortgage and the Schackno Plan correctly described the property and the plaintiff testified that he kept a memorandum of the location of the mortgaged premises. Eight months later, plaintiff attended a meeting of the certificate holders, at which time the clerical error concerning the southerly boundary line was fully discussed. Thereafter the plaintiff tendered back the certificate to the defendant. Plaintiff claims that he first learned of the erroneous description in the certificate when he attended the meeting in January, 1935.

The plaintiff has not the right to rescind merely because of the existence of a clerical error in the mortgage certificate. He can rescind only if the description induced him to enter into the contract. It is essential for him to show that he relied upon it.

To warrant the rescission of a contract or other obligation it must further be shown that the false representations complained of were the inducement to the contract, that is, that they created such an impression in the mind of the party complaining, in regard to the character or value of the subject-matter, the advantageous nature of the contract, etc., as to overcome any indecision on his part and lead or influence him into giving his consent. * * *

“A conclusive test of misrepresentations being the inducement to the contract is the fact (if it be so) that the party would have refused his consent if the representations had not been made or if he had known the truth.” (1 Black on Rescission and Cancellation [2d ed.], § 111.)

There is ample authority in this State supporting this rule. (See Adams v. Gillig, 199 N. Y. 314; Oberlander v. Spiess, 45 N. Y. 175, 178; Strong v. Strong, 102 N. Y. 69, 74; Ochs v. Woods, 221 N. Y. 335, 338; Sager v. Friedman, 270 N. Y. 472, 479; Addington v. Allen, 11 Wend. 374. See, also, Bower on the Law of Actionable Misrepresentation, p. 124.)

When we examine the record in the case at bar, we find a clear admission by the plaintiff that in entering into the contract of purchase he did not rely on the description of the property, that it was not an inducing factor, and that at the time it did not matter to him what property was covered by the mortgage certificate. This is shown by some excerpts from the testimony of the plaintiff:

“ Q. You were not concerned with where the property was at that particular moment, were you? A. I left that entirely to Mr. Stevens’ discretion. I left it to him, yes. * * * Q. So that it made no difference to you at that time whether this property was between Brighton Beach Court and Lakeland Place and East Fourth Street or Brighton Beach Avenue, did it? * * * A. No. * * * In other words, Mr. Jones, if at the time that you received this certificate, the certificate had stated Brighton Beach Court and not Brighton Beach Avenue, it would have made no difference to you, that is true, isn’t it? A. Yes.” The record does not contain any testimony by the plaintiff in conflict with these admissions. He never denied that the property covered by the mortgage did not matter to him, and that he would have accepted the certificate even though it had correctly stated that the mortgage covered only Brighton Beach Court. He received what he sought and bargained for, and he cannot now rescind because he has discovered a misdescription upon which he placed no reliance. The plaintiff was not interested in what property was covered by the mortgage and never even saw it until long after the purchase of the certificate. The clerical error causing the misdescription did not give plaintiff a larger or different mortgage than was allocated to him with his consent and acquiescence, which mortgage in fact covered only to Brighton Beach Court. Under such circumstances he has no right to rescind.

The judgment should be reversed and the complaint dismissed, and judgment for defendant on its counterclaim granted, with costs in all courts.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Rippey, JJ., concur.

Judgment accordingly.


author: Loughran, J.

text:
    Hannah Albert, Appellant, v. Title Guarantee and Trust Company, Respondent.
    Argued March 2, 1938;
    decided April 12, 1938.

      Bernard I. Kamen and Sol S. Ostertag for appellant.
    Proof as to the value of the mortgaged premises was improperly received. (Downey v. Mallinson, 232 App. Div. 703.) The trial court erred in letting the special defenses of ratification and estoppel go to the jury. (Rector v. Title Guarantee & Trust Co., 246 App. Div. 251; 272 N. Y. 568.) The charge to the jury that a verdict for the defendant would not deprive the plaintiff of her right of action for damages was improper and prejudicial. (46 C. J. 736.)

      Flynn L. Andrew, Edward N. Perkins, Richard S. Holmes and John M. Friedman for respondent.
    The evidence as to the restrictions imposed by the Superintendent of Insurance upon the guaranty company was properly received. (Blossom v. Barrett, 37 N. Y. 434; Carpenter v. Sears, 129 Misc. Rep. 574.) The trial court’s charge states correctly the law applicable to the case. (Canadian Agency, Ltd., v. Assets Realization Co., 165 App. Div. 96; Hardt v. Heidweyer, 152 U. S. 547; Dennin v. Finucane, 96 Misc. Rep. 252; 176 App. Div. 946; 227 N. Y. 606.) The trial court’s charge was proper, that a verdict for the defendant would not deprive the plaintiff of her right of action for damages. (Keller v. Strasburger, 90 N. Y. 379.)
   Loughran, J.

Plaintiff bought from the defendant Title Guarantee and Trust Company four mortgage participation certificates guaranteed by Rond and Mortgage Guarantee Company. This action was brought to recover back the purchase price as upon a rescission of the transaction. The mortgaged premises were vacant lots. Plaintiff’s case was that she had been induced to buy the certificates by defendant’s statement that the mortgage covered only improved and income producing properties. The jury found for the defendant. Plaintiff appeals from an affirmance of the judgment entered on the verdict. We think there must be a new trial.

Each of the certificates recited that it was an assignment of part of a mortgage covering 388 parcels at Jackson Heights, Queens County.” The trial court ruled that this recital was in itself evidence sufficient to warrant a finding of notice to the plaintiff of the true state of the mortgaged premises. Accordingly, it was left to the jury to say whether “ the description of the land as being in ‘ parcels ’ put a reasonable person on inquiry or knowledge that they were not improved by buildings or income-producing property.” This was error. It is no excuse for a culpable misrepresentation that means of probing it were at hand. (Dobell v. Stevens, 3 B. & C. 623; Mead v. Bunn, 32 N. Y. 275; Baker v. Lever, 67 N. Y. 304.)

Though there was no claim that the value of the mortgaged premises had been misrepresented, the defendant was allowed to show the value thereof. Proof was then taken of restrictions that were imposed upon Bond and. Mortgage Guarantee Company in rehabilitation proceedings instituted two years after plaintiff’s purchase of the certificates. We are not willing to say that these irrelevant matters did not tend unduly to confuse the case and unfairly to surprise and prejudice the plaintiff.

At the defendant’s request, the jury were told that the verdict for the defendant in this case would not deprive the plaintiff of her right of action for damages,” and that she is not deprived of the remedy of damages if she fails in this action for rescission.” We think this instruction should not have been given.

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

Crane, Ch. J., Lehman, O’Brien, Hubbs, Pinch and Rippey, JJ., concur.

Judgments reversed, etc.


author: Lotjghran, J.

text:
    In the Matter of the Estate of Herman E. Schoenewerg, Deceased. Empire Trust Company, Appellant; Richard Schoenewerg, Respondent.
    Argued February 28, 1938;
    decided April 12, 1938.

      Joseph R. Kelley for appellant.
    No presumption of invalidity attaches to the release. (Larkin v. Wikoff, 75 N. J. Eq. 462; Cowee v. Cornell, 75 N. Y. 91; Matter of Voislawsky, 135 Misc. Rep. 877; Matter of Wagner, 119 N. Y. 28; Matter of Pruyn, 141 N. Y. 544; Ledyard v. Bull, 119 N. Y. 62.) There is no evidence to warrant an inference of fraud, or of any other fact operative to avoid the release. (Pimpinello v. Swift & Co., 253 N. Y. 159.) Assuming the truth of the controverted allegations of the petition, the non-disclosure thereof does not invalidate the release. (Matter of Voislawsky, 135 Misc. Rep. 877; Matter of Packard, 146 Misc. Rep. 65; Matter of Hall, 164 N. Y. 196; Matter of Niles, 113 N. Y. 547; Ward v. Hasbrouck, 169 N. Y. 407; Matter of Phipps, 214 N. Y. 378; Gravenhorst v. Turner, 215 App. Div. 617.) This appeal, on a certified question of law, has been taken properly and pursuant to leave of the Appellate Division, and a stipulation for judgment absolute is neither necessary nor proper. (Matter of Gibson, 195 N. Y. 466; Matter of Hughes, 254 N. Y. 597; Matter of Reger v. O’Ryan, 266 N. Y. 412.)

      John J. O’Connell and Philip Birnbaum for respondent.
    The relation between petitioner and appellant was that of trustee and cestui que trust. Under such circumstances, it is incumbent on the trustee to show affirma-tively that no deception was practiced, that no undue influence was used and that all the facts were explained fully, openly and voluntarily to the petitioner at the' time he executed the release and were well understood by him at that time. (Cowee v. Cornell, 75 N. Y. 91; Dambmann v. Shulting, 75 N. Y. 55; Matter of Smith, 95 N. Y. 516; Green v. Roworth, 113 N. Y. 462; Smith v. Ogilvie, 127 N. Y. 143; Jones v. Jones, 137 N. Y. 610; Barnard v. Gantz, 140 N. Y. 249; Doheny v. Lacy, 168 N. Y. 213; Post v. Benchley, 48 Hun, 83; Ferris v. Ferris, 34 App. Div. 146; Peoples Trust Co. v. Harman, 43 App. Div. 348; Spier v. Hyde, 92 App. Div. 468; Toomey v. Whitney, 94 App. Div. 154; Dolan v. Cummings, 116 App. Div. 787; 193 N. Y. 638.) The fact that petitioner asked no questions on May 5, 1933, cannot deprive him of his right to attack the release. (Albany City Sav. Institution v. Burdick, 87 N. Y. 40; Smith v. Smith, 134 N. Y. 62; Wilcox v. A. T. & T. Co., 176 N. Y. 115.) The petitioner’s attack was timely. (Shaw v. D., L. & W. R. R. Co., 126 App. Div. 210.) In the absence of a stipulation for judgment absolute, the appeal should be dismissed. (N. Y. C. & H. R. R. R. Co. v. State, 166 N. Y. 286; City of Buffalo v. Stevenson, 207 N. Y. 258; Sand v. Garford Motor Truck Co., 236 N. Y. 327.)
   Lotjghran, J.

We meet first a question of our jurisdiction.

This proceeding was brought in the Surrogate’s Court of the county of New York by the remainderman of a testamentary trust to compel an accounting by the trustee. After a hearing, the Surrogate dismissed the petition. On appeal by the petitioner to the Appellate Division, the decree was reversed and a new trial ordered.

This appeal by the trustee was taken by leave of the Appellate Division granted pursuant to subdivision 4 of section 588 of the Civil Practice Act as in the case of a determination “ other than a judgment, or order which finally determines an action or special proceeding.” There has been certified to us the question whether the dismissal of the proceeding by the Surrogate was error.

Subdivision 2 of section 588 provides for an appeal to this court, “As of right, from an order of the appellate division granting a new trial where the appellant stipulates that, upon affirmance, judgment absolute shall be rendered against him.” When an appeal may so be taken as of right,, the Appellate Division is without power to permit an appeal on a certified question under subdivision 4. (Flagg v. Moses, 248 N. Y. 509.) No stipulation for judgment absolute has here been given by the appealing trustee. It is suggested by the petitioner-respondent that this omission calls for a dismissal of the appeal.

In Matter of Gibson (195 N. Y. 466); Matter of Hughes (254 N. Y. 597), and Matter of Barry (271 N. Y. 523) we held that the right to appeal from an order of the Appellate Division granting a new trial did not extend to an order which reversed a Surrogate’s decree in a special proceeding and directed a new hearing. A stipulation for judgment absolute would be inappropriate and usually nugatory in that case. The implication of a contrary view in Matter of Schillinger (258 N. Y. 186) was an inadvertence. This appeal is properly here and we pass to the merits.

On the falling in of the last life estate under the trust of which he was remainderman, the petitioner in May, 1933, attended at the office of the trustee at its request. He was then an adult under no disability. Officers of the trustee thereupon submitted to him an account of their management of the trust during the fifteen years of its existence. This document was in form such that it would have been received for filing in the Surrogate’s Court. The securities therein shown as constituting the trust corpus were delivered to the petitioner and he gave a receipt therefor. He also signed and delivered to the trustee a release running from himself as remainderman.

In April, 1936, this proceeding was instituted. The grievance asserted by the petitioner was that a mortgage investment that had been made by the trustee was an unlawful mishandling of the trust. For the purpose of the hearing, the Surrogate assumed that the challenged investment was so far unsound that (had other things remained the same) a surcharge against the trustee would have been warranted. On that assumption, the ruling was that in the circumstances the petitioner was barred by the release he had given.

We think this ruling was right. No claim was made by the petitioner of actual imposition practiced upon him. His testimony was that he had understood the objective nature of the instrument of release. In the account accepted and retained by him was a schedule which showed that the mortgage investment in question had been defaulted and was in process of reorganization. No proof of any misrepresentation or of refusal to disclose any fact was offered.

This being his case, the petitioner may not be heard to say that the accounting trustee owed to him as remainder-man an affirmative duty to detail an open state of facts as to which he was content to waive inquiry. There can be no legal implication of impropriety in such a business transaction. Most of the business relations between persons, in a sense and to a degree, rest upon confidence reposed by the one in the other. Without it, the commercial dealings of the community would be seriously restricted. But the common-law presumption of impropriety, or of unfairness, was not intended to reach such cases; or any cases except those where the circumstances have created what the law regards as a fiduciary relation and where, as a safer general assumption, it regards one as the stronger party and, therefore, as bound, in every transaction with the other, to establish, affirmatively, its good faith and propriety.” (Doheny v. Lacy, 168 N. Y. 213, 223.)

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division. The question certified should be answered in the negative.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Finch and Rippey, JJ., concur.

Ordered accordingly.


text:
    Seaboard Surety Company, Appellant, v. Standard Accident Insurance Company, Respondent.

      Argued March 8, 1938;
    decided April 12, 1938.

      David S. Konheim, Eugene L. Jabush and William Lurie for appellant.
    The plaintiff sustained a loss within the meaning of defendant’s bond. (United States v. American Surety Co., 200 U. S. 197; Mankin v. United States, 215 U. S. 533; United States v. Baird Co., 73 Fed. Rep. [2d] 652; Illinois Surety Co. v. Davis Co., 244 U. S. 376; Pacific States Electric Co. v. U. S. F. & G. Co., 109 Cal. App. 691; Mayes v. Lane, 116 Ky. 566; Closson v. Billman, 161 Ind. 610; Stoddard v. Hibbler, 156 Mich. 335; Empire State Surety Co. v. Lindenmeier, 54 Col. 497; Friend v. Ralston, 35 Wash. 422; Kiewit v. Carter, 25 Neb. 460; Boone v. Maloney, 171 Okla. 454; Cockrill v. Davie, 14 Mont. 131; Strong v. American Fence Constr. Co., 245 N. Y. 48.)

      Daniel Combs for respondent.
    The Hurd Act (U. S. Code, tit. 40, § 270) taken alone has no effect to impose upon the surety for a government contractor liability for claims of persons furnishing material in the prosecution of public work. (United States v. Stewart, 288 Fed. Rep. 187; United States v. Starr, 20 Fed. Rep. [2d] 803; United States v. Montgomery Heating & Ventilating Co., 255 Fed. Rep. 683; Babcock & Wilcox v. Am. Surety Co., 236 Fed. Rep. 340; Trimount Dredging Co. v. United States Fidelity & Guaranty Co., 166 Md. 556.)
   Finch, J.

Whether the surety of a subcontractor is liable on its bond to the general contractor for an unpaid bill for materials incorporated in the work under the subcontract made with a general contractor doing building work for the United States government where the subcontractor has failed to complete the work or pay for the material furnished, is the question of law presented.

A motion by defendant for judgment on the pleadings was granted, and the Appellate Division has affirmed.

The relevant allegations of the complaint are as follows: One Lundberg entered into a contract with the United States of America to remodel a postoffice and courthouse in Butte, Montana. Simultaneously with entering into this contract, Lundberg executed a bond conditioned upon his performance of the contract in accordance with its terms and providing that he would pay promptly all persons supplying labor and materials. This bond, obtained from the plaintiff, was required by the provisions of the Hurd Act (U. S. Code, tit. 40, § 270). Thereafter Lundberg entered into a subcontract for a portion of the work and materials with the Interstate Heating and Plumbing Company. This subcontract provided, among other things, that Interstate shall and will provide all the materials and perform all the work for the plumbing, sanitary and roof drainage, heating apparatus, and ventilating in the present postoffice in Butte, Montana, and the addition thereto.” The defendant herein, by its written bond, guaranteed to indemnify Lundberg in a sum not exceeding $14,000 against loss or damage directly caused by the failure of the principal [Interstate Heating and Plumbing Company] to faithfully perform ” this subcontract.

Lundberg was unable to carry the work to completion and the plaintiff undertook and did complete the work in accordance with the contract. After the plaintiff undertook performance, the Interstate agreed to continue the performance of its subcontract under the direction of the plaintiff as general contractor, and the defendant, as surety for the Interstate, acknowledged the right of subrogation of the plaintiff in the bond, and acknowledged it as successor obligee thereunder. Interstate failed to complete the work under its subcontract. At the time there were unpaid material bills which had been incurred by Interstate amounting to approximately $6,700, and the plaintiff had in its hands moneys owing to Interstate under the subcontract totaling approximately $7,700. The cost of completion of the subcontract after the default by Interstate was approximately $5,500. Thus the net loss to the plaintiff was approximately $4,500.

The Hurd Act requires any person contracting to do public work for the United States to execute a bond not only for completion but also conditioned on prompt payment of all persons supplying labor and materials in the prosecution of the work. It has been held that a materialman may recover on the bond of the general contractor, even though he supplied material to the subcontractor and even though the subcontractor has already been paid in full. (Hill v. American Surety Co., 200 U. S. 197; Mankin v. Ludowici-Celadon Co., 215 U. S. 533. See Illinois Surety Co. v. Davis Co., 244 U. S. 376, 380.) Where the general contractor fails to furnish such a bond the laborers and materialmen who supply the subcontractors may sue the general contractor and recover from him. (Strong v. American Fence Constr. Co., 245 N. Y. 48.)

The plaintiff was bound to pay all unpaid claims for labor and material supplied to its contractor, the Interstate Company. Not only had it undertaken by its bond to pay all such claims, but it had stepped into the shoes of the general contractor; and, as noted above, a general contractor is bound to pay such claims. Therefore, when the Interstate defaulted on its contract, and the unpaid bills for materials were paid by the plaintiff, these bills were paid not as a voluntary act but by compulsion of law. The defendant, by the express terms of its bond, undertook to indemnify the plaintiff against loss or damage directly caused by the failure of the principal to faithfully perform said contract * * When the principal, the Interstate Company, defaulted on the contract, the breach caused loss to the plaintiff arising out of the necessity for completing the work and the necessity for paying for the materials already incorporated in the work, for which the Interstate had failed to make payment.

The failure to pay for material incorporated in the work after the subcontractor had undertaken to provide all the materials constituted a breach of the contract with the general contractor. A contract as in the case at bar which requires the contractor to provide material, under any reasonable construction means that he will pay for the material, and a bond which undertakes to guarantee the faithful performance of such a contract includes within its scope losses suffered because of the failure of the contractor or subcontractor to pay for materials furnished. (Pacific States Elec. Co. v. United States Fidelity & Guaranty Co., 109 Cal. App. 691; Empire State Surety Co. v.Lindenmeier, 54 Col. 497; Closson v. Billman, 161 Ind. 610; Mayes v. Lane, 116 Ky. 566; Stoddard v. Hibbler, 156 Mich. 335; Cockrill v. Davie, 14 Mont. 131; Kiewit v. Carter, 25 Neb. 460; Boone v. Maloney, 171 Okla. 454; Friend v. Ralston, 35 Wash. 422.)

A different situation exists where the person in whose favor the bond runs is under no obligation to pay the materialmen and they cannot obtain a lien on his property. That was the case in Schwartz & Co. v. Aimwell Co. (227 N. Y. 184, 187) where this court said: “ It has not paid any of them and is not personally liable for their payment. As, indicated, no mechanics’ liens have been filed, nor are any threatened. Under such circumstances, the plaintiff could not voluntarily pay such claims and then recover the amount paid from the principal or surety on the bond.” To enable it to do that, as stated in Village of Argyle v. Plunkett (226 N. Y. 306), there must “be involved somewhere, as an essential element of its right to recover, damages which have been or may be suffered by it by reason of the failure to pay these debts, and such an element is in our opinion utterly lacking ” (p. 312). In the case at bar that element is present. The plaintiff was under legal obligation to pay these materialmen.

We have, then, a contract which obligates the subcontractor to provide materials. The general contractor is obligated by law to pay such materialmen if .the subcontractor fails to make payment. The surety of the subcontractor agrees to indemnify the general contractor for all losses suffered by reason of breach of the contract by the subcontractor. The subcontractor breaches his contract and fails to pay the materialmen. Thereupon, the general contractor pays such materialmen. There can be no doubt that it has suffered a loss by reason of the subcontractor’s breach of the contract, which entitled it to indemnification by the surety of the subcontractor.

Any doubt concerning the construction of the bond is dispelled when it is examined in its entirety. Not only does it provide that the surety will indemnify the general contractor against any losses caused by the failure of the subcontractor to perform its contract, but it also provides that, If at any time there comes to the notice * * * of the Obligee information that any claim for labor performed or for materials furnished the principal in or upon the work specified in the contract remains unpaid * * * the Obligee shall withhold from the principal payment of any moneys due or to become due to the principal under the contract until the payment of such claim * * *.” Pursuant to this provision the plaintiff withheld certain payments from the Interstate. The defendant wrote the plaintiff a letter confirming its right to withhold these payments under the above provision of the bond. Unless the bond was intended to cover payments to materialmen by the general contractor, there is no reason why it should contain such a provision obligating the general contractor to withhold payments of money to the subcontractor where it has notice that claims for material are unpaid.

The defendant relies on certain cases in the Federal courts as exonerating the defendant from liability on its bond. (Babcock & Wilcox v. American Surety Co., 236 Fed. Rep. 340; United States v. Montgomery H. & V. Co., 255 Fed. Rep. 683; United States v. Stewart, 288 Fed. Rep. 187; cert. denied, 263 U. S. 699; United States v. Starr, 20 Fed. Rep. [2d] 803; Trimount Dredging Co. v. United States Fidelity & Guaranty Co., 166 Md. 556.) None of these cases has bearing on the case at bar, since they were all suits brought either directly by laborers or materialmen, or on behalf of such laborers or material-men, and not by the obligee on the bond as in the case at bar. In the case at bar if a suit had been brought directly by or on behalf of the unpaid materialmen, it is doubtful whether the bond issued by the defendant would entitle the materialmen to recover. In fact in the leading Federal case the court was careful to point out that the suit was brought by materialmen, and that the cases which give the word ‘ furnish ’ the broad signification contended for were cases brought by the obligee of the bond * * (Babcock & Wilcox v. American Surety Co., supra, p. 343.)

Moreover the plaintiff had a right to apply moneys due to the Interstate which were still in its hands toward payment for materials supplied to but not paid for, by the Interstate. The failure of the Interstate to complete its work obligated the plaintiff to pay such unpaid material-men and to expend additional moneys for the completion of the work. For either of these purposes the plaintiff had a right to use the moneys belonging to the Interstate which it had retained. It was under no obligation to apply such moneys first toward the completion of the work. It could just as well apply them toward the payment of unpaid materialmen. It had retained moneys belonging to the Interstate sufficient to cover all these claims of unpaid materialmen and the loss suffered as a result of the breach of the contract by the Interstate must be deemed to have been the result of the cost of completing the work itself. Therefore, even if the construction of the bond contended for by the defendant were accepted, it still would be obligated to pay the plaintiff for the loss suffered which was incurred by reason of the cost of completion.

It follows that the judgments should be reversed and the motion by the defendant for judgment on the pleadings denied, with costs in all courts to the plaintiff.

Crane, Ch. J., O’Brien, Hubbs, Loughran and Rippey, JJ., concur; Lehman, J., dissents.

Judgments reversed, etc.


author: O’Brien, J.

text:
    Morgan A. Jones, Respondent, v. Cora L. Maloney, Appellant.
    Submitted March 4, 1938;
    decided April 12, 1938.

      Henry A. Bruder, David M. Bluestone and Louis J. Altieri for appellant.
    Plaintiff did not derive title or interest in the note from, through or under defendants’ deceased husband, for the latter at no time had title or interest in the note. The exclusion of defendant’s testimony as to the circumstances attending the making of the note and its fraudulent diversion was serious and prejudicial error. (American Exch. Nat. Bank v. New York Belting & Packing Co., 148 N. Y. 698; Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191; Nickerson v. Ruger, 76 N. Y. 279; Wilcox v. Corwin, 117 N. Y. 500; Miller v. Campbell, 173 App. Div. 821; Haddock, Blanchard & Co. v. Haddock, 192 N. Y. 499; Angle v. North-Western Mut. Life Ins. Co., 92 U. S. 330; Weyerhauser v. Dun, 100 N. Y. 150; Ledwich v. McKim, 53 N. Y. 307; Van Duzer v. Howe, 21 N. Y. 531; Benjamin v. Ver Nooy, 36 App. Div. 581; 168 N. Y. 578; Davis Sewing Machine Co. v. Best, 105 N. Y. 59; Comstock v. Hier, 73 N. Y. 269; Catlin v. Gunter, 11 N. Y. 368; Kelso & Co. v. Ellis, 224 N. Y. 528; New York Bankers, Inc., v. Duncan, 257 N. Y. 160.)

      Thomas E. Murray, Jr., for respondent.
    The defendant was disqualified to testify under section 347 of the Civil Practice Act. (American Exchange Nat. Bank v. New York Belting & Packing Co., 148 N. Y. 698; Conforti Const. Co. v. Neek Realty Corp., 125 Misc. Rep. 876; Newcombe v. Fox, 1 App. Div. 389; 154 N. Y. 754; Commercial Credit Corp. v. Greiner, 264 N. Y. 253; Witthaus v. Schack, 105 N. Y. 332.) The court did not err in directing a verdict in favor of plaintiff. (Cross v. Cross, 108 N. Y. 628; Hankinson v. Vantine, 152 N. Y. 20.)
   O’Brien, J.

Action on a demand note for $17,500, dated June 2, 1932, made by defendant to the order of plaintiff. On the trial defendant attempted to introduce in evidence certain conversations and transactions between herself and her deceased husband, Frank Maloney, in relation to the circumstances under which she executed the note, but her testimony was rejected on the ground that under section 347 of the Civil Practice Act she, being a party interested in the event, is prohibited from testifying against plaintiff, as one deriving his title or interest from, through or under a deceased person * * * by assignment or otherwise.” The fundamental question of law is whether plaintiff derived his title or interest from, through or under defendant’s deceased husband, Frank Maloney. If he did not, then defendant’s testimony is admissible.

The complaint contains no allegation that plaintiff derived his title or interest from, through or under any one except defendant. The evidence which defendant sought to introduce is broadly pleaded in the answer and is to this effect: Plaintiff and Frank Maloney, defendant’s husband, were associated in business and her husband represented to her that he was in immediate need of the sum of $1,000 to assist him and plaintiff in financing a business project. He further represented that plaintiff had represented to him that plaintiff could secure the sum of $1,000 for the husband from a third party if the husband would provide plaintiff with a note made by defendant for approximately that amount to be deposited with the third party as collateral security. Upon these representations by her husband, defendant signed in blank an instrument without date, name of payee or amount, she relying upon his assurance that he would not make or deliver this instrument, executed in blank, for an amount in excess of $1,000. In violation of her instructions and his own assurance, the husband, without defendant’s knowledge and consent, inserted the name of plaintiff and the amount of $17,500. These are the defenses set forth in the answer and which defendant sought to prove at the trial.

Whatever title or interest plaintiff may possess in this note is not derived from, through or under defendant’s deceased husband. He was merely her agent and possessed no property in the subject-matter. It never belonged to him and, therefore, the provisions of section 347 of the Civil Practice Act are not applicable. (Ward v. N. Y. Life Ins. Co., 225 N. Y. 314.)

The judgments should be reversed and a new trial granted, with costs in all courts to abide the event.

Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgments reversed, etc.


author: Hubbs, J.

text:
    The People of the State of New York, Respondent, v. Vincent Forte, Appellant.
    Argued March 10, 1938,
    decided April 12, 1938.

      Frank W. Holmes, Paul 0. Dwyer, Leon Fishbein and Irving Wharten for appellant.
    The court committed reversible error in charging the jury as to the presumptions they might draw from the defendant’s failure to testify. (People v. Sweeney, 41 Hun, 332; People v. Fitzgerald, 156 N. Y. 253; People v. Ryan, 120 App. Div. 275; People
      v. Ferguson, 245 App. Div. 837; Commonwealth v. Harlow, 110 Mass. 411; Doan v. State, 26 Ind. 495; State v. Carr, 25 La. 407; People v. Mitchell, 164 Mich. 583; Leonard v. Territory, 2 Wash. Terr. 381; Linden v. United States, 296 Fed. Rep. 104.)

      William F. X. Geoghan, District Attorney {Henry J. Walsh of counsel), for respondent.
    The court’s charge in respect of the appellant’s failure to testify in his own behalf is supported by authority. (People v. Smith, 114 App. Div. 513; People V. Trombino, 238 App. Div. 61; 262 N. Y. 689; People v. Erit, 237 App. Div. 35; People v. Watson, 216 N. Y. 565; People v. Minkowitz, 220 N. Y. 399; Ruloff v. People, 45 N. Y. 213; People v. Valentine, 147 App. Div. 31; People v. Hoch, 150 N. Y. 291; People v. Springer, 137 App. Div. 304.)
   Hubbs, J.

Appellant has been convicted of the crime of murder in the first degree upon circumstantial evidence. At the trial he did not take the witness stand in his own behalf. During the trial testimony was introduced by the People of circumstances which no one but appellant could have explained if any explanation existed.

Section 393 of the Code of Criminal Procedure reads: The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him.”

It is urged by appellant that his statutory right has been illegally infringed by the trial court’s charge to the jury. It is asserted that the charge in fact and in spirit violated the provision of the statute above quoted. The court in charging the jury said: “ If, in his opinion, the evidence is insufficient to establish his guilt beyond a reasonable doubt, he may elect to stand on that right, and his failure to testify does not permit you to draw any unfavorable inference against him. But, while you may not draw any unfavorable inference because of his failure to testify, you are warranted in taking the facts and circumstances established in the case, which, if he were innocent, he might have controverted or explained, most strongly against him. You must not be confused. The fact that he fails to testify does not permit or justify you in drawing any unfavorable inference, but if the facts and circumstances proved to your satisfaction in the case are such that if he were innocent he might controvert or explain, then you may take those facts and circumstances most strongly against him in weighing the question of his innocence or guilt.”

Counsel excepted to that portion of the charge. The court then said: The charge was that, while the jury could not draw any unfavorable inference or be prejudiced against the defendant in any way because of his failure to testify, they could take the facts and circumstances which, if he were innocent, he might controvert or explain, most strongly against him.”

Testimony in the case in regard to certain facts and circumstances indicated that defendant was guilty of the crime charged. The part of the court’s charge above quoted in effect instructed the jury that if he were innocent he might have explained or controverted those facts and circumstances and that his failure to do so justified the jury in taking such facts and circumstances most strongly against him. Therefore, his failure to testify strengthened the testimony against him. The charge tended to nullify the plain provision of the statute that the failure of a defendant to testify in a criminal case cannot be treated as creating a presumption against him.

We are not concerned with the wisdom of the provision of the statute. As long as it remains as a part of our statutory law it is the duty of courts to enforce it as written. Its purpose and intent cannot be weakened or nullified in any way. That has always been the attitude of this court. In the case of Ruloff v. People (45 N. Y. 213, 222) Judge Allen, in writing for the court, said: “ Neither the prosecuting officer or the judge has the right to allude to the fact that a person has not availed himself of this statute,” which conferred upon the defendant the right to be a witness in bis own behalf. Later decisions have modified that statement and it is now proper for a trial judge to instruct a jury that it must obey the command of the statute and not indulge in any presumption against an accused because of his failure to take the witness stand. (People v. Hayes, 140 N. Y. 484, 496; People v. Hoch, 150 N. Y. 291.)

This court has, however, always decided that any statement of a trial judge in his charge to a jury which tended to deprive a defendant of the full protection of the statute constituted reversible error.

In the case of People v. Fitzgerald (156 N. Y. 253, 266) it was said: In the trial of a criminal case it can never be necessary to add anything to the plain and simple language of the statute on this subject. The fact that the accused does not testify in his own behalf cannot be permitted to create any presumption against him. That is the plain mandate of the law, and the force of the proposition should not be weakened and destroyed with the jury by qualifying words. The learned judge, in contrasting the case as it was with the case as it would have been if the defendant had taken the stand, must have left the impression on the minds of the jury that, after all, something was to be taken against the defendant by reason of his omission to testify, and, therefore, this part of the charge was open to objection.” (See, also, People v. Hoch, supra; People v. Watson, 216 N. Y. 565; People v. Minkowitz, 220 N. Y. 399.)

In the opinion in the case of People v. Smith (114 App. Div. 513, 517) appears a statement directly in conflict with the repeated decisions of this court. The decision in that case is disapproved.

The charge of the court deprived the defendant of an important statutory right.

The judgment of conviction should, therefore, be reversed and a new trial ordered.

Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur.

Judgment of conviction reversed, etc.


text:
    Rema V. Morrison, as Administratrix of the Estate of Kendrick W. Morrison, Deceased, Appellant, v. New York Telephone Company et al., Respondents, Impleaded with Another.

      Argued March 3, 1938;
    decided April 12, 1938.

      George A. Garvey, August P. Klein and Victm' A. Javarone for appellant.
    The defendants were both guilty of negligence in permitting a condition inherently dangerous to exist. (Horning v. Hudson River Tel. Co., 111 App. Div. 122; 186 N. Y. 552; Burrows v. Livingston-Niagara Power Co., 217 App. Div. 206; 244 N. Y. 548; Braun v. Buffalo General Electric Co., 200 N. Y. 484; Skzypek v. Long Island R. R. Co., 245 App. Div. 309; Constantino v. Watson Contracting Co., 219 N. Y. 443; Ehret v. Village of Scarsdale, 269 N. Y. 198; Hynes v. N. Y. C. R. R. Co., 231 N. Y. 229; Wittleder v. Citizens’

      Electric Illuminating Co., 50 App. Div. 478; Caglione v. Mt. Morris Electric Light Co., 56 App. Div. 191; Ferrari v. N. Y. C. R. R. Co., 224 App. Div. 182; 250 N. Y. 527; Grant v. Utica Gas & Electric Co., 224 App. Div. 223; Speich v. International Ry. Co., 219 App. Div. 620.) The intestate was in no way guilty of contributory negligence. (Foster v. Fidelity Safe Deposit Co., 264 Mo. 89; Braun v. Buffalo General Electric Co., 200 N. Y. 484.)

      Irving W. Young, Jr., N. H. Egleston, Hugh Q. Wells and Charles T. Bussell for New York Telephone Company, respondent.
    The deceased was a trespasser and the telephone company owed him no duty to make its wires and structures safe or to keep them safe for him. (Troidle v. Adirondack Power & Light Corp., 252 N. Y. 483; Hickok v. Auburn Light, Heat & Power Co., 200 N. Y. 464; Heskell v. Auburn Light, Heat & Power Co., 209 N. Y. 86; Lamore v. Crown Point Iron Co., 101 N. Y. 391; Counias v. Thomas, 247 App. Div. 117.) The telephone company did not abandon its wires or other property. (Graham v. Purcell, 126 App. Div. 407; Foulke v. N. Y. Consolidated R. R. Co., 228 N. Y. 269; Matter of Hess, 143 Misc. Rep. 335; Matter of City of New York [Realty Associates], 256 N. Y. 217.) It was not reasonably foreseeable that the telephone company’s drop wire might become a dangerous instrumentality even as to a trespasser. (Earley v. New York Tel. Co., 263 N. Y. 424; Adams v. Bullock, 227 N. Y. 208; Lyman v. Putnam Coal & Ice Co., 182 App. Div. 705; 230 N. Y. 548; Wilks v. New York Tel. Co., 243 N. Y. 351; Coons v. New York Tel. Co., 249 N. Y. 42; Brown v. American Mfg. Co., 209 App. Div. 621.) Appellant’s intestate was guilty of. contributory negligence fatal to any recovery. (Linzey v. American Ice Co., 131 App. Div. 333; 197 N. Y. 605; McFarland v. City of Niagara Falls, 247 N. Y. 340; Butterfield v. Forrester, 11 East, 60.)

      Robert H. Elder, Otho S. Bowling and Ralph Hastings for Village of Tapper Lake, respondent.
    The village was guilty of no negligence. (Palsgraf v. L. I. R. R. Co., 248 N. Y. 339; Lane v. City of Buffalo, 232 App. Div. 334; Polemenakos v. Cohen, 234 App. Div. 563; Van Leet v. Kilmer, 252 N. Y. 454; Troidle v. Adirondack P. & L. Corp., 252 N. Y. 483; O’Neill v. City of Port Jervis, 253 N. Y. 423; Ehret v. Village of Scarsdale, 269 N. Y. 198; Demjanik v. Kultau, 242 App. Div. 255; Srogi v. N. Y. C. R. R. Co., 247 App. Div. 95.)
   Hubbs, J.

This action is to recover for negligently causing the death of the appellant’s intestate by electrocution. The defendant Big Wolf Corporation owned a tract of land in the Adirondack Mountains which it purchased from Ferris J. Meigs who excepted from the grant thirty-one acres. On that thirty-one acres one Stout had a cottage on a lot, the record title of which was at the time in Meigs. The Big Wolf Corporation erected five poles on a spur power fine about 650 feet long, extending from the main line of the village of Tupper Lake and the telephone company to the Stout cottage, part of which poles were on Meigs property and the last one on the Stout lot. Under an agreement with Meigs made prior to the sale of land by him to the Big Wolf Corporation, the defendant village furnished electricity for light and power to the Stout cottage through a 2,200 volt fine carried on the poles of the spur fine. On the pole situate on the Stout lot it placed a transformer. The defendant telephone company entered into an agreement with the village and Big Wolf Corporation under which it used for its telephone fine the same poles in the highway and on the land owned by Big Wolf Corporation used by the village for transmission of power. The telephone company also used poles on .the Meigs property which carried the village power line, though it appears to have had no written agreement with him individually.

Previous to the accident here in question no telephone had been installed in the Stout property but several years before the accident the telephone company had placed bare wires under the power line wires on the spur line of poles, evidently expecting the occupants of the Stout cottage would install a telephone. The telephone line placed on the spur line of poles was not connected to the main line of the telephone company. Had it been, the instruments in the office of the telephone company would have indicated any contact of the telephone line with the power line. On the pole on the Stout lot, the telephone company attached an insulated drop line seventy-five feet long which it caused to be coiled up and tied to the pole with wire and which one of the telephone company’s witnesses testified was twelve or fourteen feet above the ground. Three weeks before the accident here in question, Stout and an employee had noticed that the pole on the Stout property had tipped over loosening the power wires where attached to the pump house and they had straightened it up and braced it. The employee who helped in doing that testified that the coiled drop wire belonging to the telephone company was then on the pole not twelve or fourteen feet above the ground but down within the reach of a man standing on the ground.

Appellant’s intestate was employed by a tenant of the Stout cottage. He and another man were fixing a swing and wire was needed to strengthen it. He left to get it and eight or ten minutes later was found at the base of the pole tangled up in the insulated drop wire with a pair of scissors in his hand. About nine feet from the end of the drop wire there was a burned place indicating that the insulation may have been cut with the scissors. Upon investigation, it was found that a limb had broken down and rested on the high voltage electric line, that the insulation on the high voltage fine had been worn through and that the bare telephone wire was in contact with it. The limb was still attached to the tree but the leaves had turned brown.

The question of the negligence of the telephone company and the village was submitted to the jury as well as the question of contributory negligence on the part of the plaintiff’s intestate and a verdict was found against both defendants. The Appellate Division, one justice dissenting, reversed and dismissed the complaint as to both defendants on the ground that there was no proof of actionable negligence on the part of either.

It is contended particularly on the part of the defendant telephone company that the deceased was, as to it, a trespasser, because he was seeking to appropriate its property. Appellant contends that the wire which deceased was probably seeking to secure was apparently abandoned property and that, therefore, he .was not a trespasser. The question of abandonment cannot be seriously considered, as the proof was not direct and did not affirmatively or reasonably lead to the exclusive inference of a throwing away. (Foulke v. New York Consolidated R. R. Co., 228 N. Y. 269.)

We need not, however, assume that the deceased was engaged in the commission of a crime. In the remote section where the property was located, the telephone company may be presumed to have reasonably anticipated that one wanting a loose piece of wire would be likely to take it where he could find it, particularly if it were upon the premises. Even as against a trespasser, some care is to be exercised.

“ The duty of care, which the law imposes upon those who undertake to operate so dangerous a force as electricity, may, under some circumstances, be due to one who, technically, is a trespasser. In such a case as this one, its special facts are for consideration, and upon them, and not solely with reference to the ownership or occupancy of the locus in quo, the question of duty must be determined.” (Newark Electric Light & Power Co. v. Garden, 78 Fed. Rep. 74, 77; writ of certiorari denied, 166 U. S. 722.)

It must be borne in mind that the deceased was not a trespasser upon the Stout property upon which the pole stood and that the telephone company was not maintaining the line as a service line. It does not appear that it was ever requested to place it there. In fact there is affirmative proof that it was not requested so to do.

The telephone company, so far as the record discloses, strung its wires on the pole on the Stout cottage lot without any written agreement with the owner of the land permitting it to do so. From all that appears, it had no contract right to leave its wires upon the pole situate upon the cottage lot although it seems to have been assumed that it had at least an oral license. In some respects the situation of the telephone company is similar to that of the defendant in the case of Wittleder v. Citizens Electric Illuminating Co. (47 App. Div. 410, 413). In that case it appeared that the plaintiff, a boy, was injured by an electric wire attached to a railroad structure. The court said: For all that appears, the defendant was just as much a trespasser on the railroad structure as, according to its claims, the boy was. At any rate the defendant is not in a position to defeat the action on the ground referred to,” that is, that the boy was a trespasser.

Negligence on the part of the telephone company, if any, must rest on the fact that it maintained a line disconnected from its system, so that notice of a short would not appear on its office instruments, that it left a drop line which the jury might have found was within reach of a man on the ground, that it failed to inspect, and failed to trim trees which it had specifically contracted at least with Big Wolf Corporation for the right to do, and further that it placed its bare wires beneath high tension electric wires which afforded opportunity for its bare wires to become charged with high voltage in the event of a contact with the high tension line. It is upon proof of all these facts that it was left to the jury to say whether the telephone company was negligent. We have reached the conclusion that it has not been properly determined by the Appellate Division that, as a matter of law, there was no proof of actionable negligence on its part.

This is not such a situation as was presented in Adams v. Bullock (227 N. Y. 208, 209) and in Troidle v. Adirondack Power & Light Corp. (252 N. Y. 483), in each of which cases the injured party brought a wire into contact with what was known to be a high voltage line, out of reach except for the act of making the contact. This case is more like Burrows v. Livingston-Niagara Power Co. (217 App. Div. 206; affd., 244 N. Y. 548), which states the applicable rule where the injured person is not a trespasser and points out the distinction to be observed between the several cases upon the subject. Having reached the conclusion that the defendant telephone company was not absolved from liability upon the ground that the deceased was a trespasser, it follows that as to the telephone company the judgment appealed from should be reversed.

The case against the defendant village presents a different situation. It did not leave for years a disconnected line not in use. Its line on the spur was in use. It supplied electricity to the cottage. There is no evidence tending to establish that its line was not properly constructed and maintained. On this record the only possible ground of negligence against it is its failure to inspect the line on the spur and discover the fact that a fallen limb of a tree rested on it. There is no evidence which establishes when the limb came into contact with the Une. Neither is there evidence that there was in common use an instrument which could have been installed in the power house that would have indicated the contact. It must be borne in mind that the power Une was located in the mountains, in a remote, sparsely inhabited section. We beUeve it would be imposing too harsh a rule of conduct to permit a recovery because the viUage failed to inspect the Une during the few days that the limb may be presumed to have rested thereon.

The court in the charge to the jury stated that there could be no recovery if the deceased was a trespasser; also that he was a trespasser unless the telephone wire had been abandoned. As the law of abandonment was improperly charged, it is necessary to grant a new trial as to the telephone company.

The judgment of the Appellate Division as to the Village of Tupper Lake should be affirmed, with costs, and the judgment of the Appellate Division and that of the Trial Term as to the New York Telephone Company should be reversed and a new trial granted, with costs to abide the event.

Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur.

Judgment accordingly.