author: Lehman, Ch. J. Finch, J.

text:
    Good Humor Corporation et al., Respondents, v. City of New York et al., Appellants.
    Argued March 1, 1943;
    decided April 15, 1943.

      Thomas D. Thacher, Corporation Counsel (Paxton Blair, Francis J. Bloustein and Raymond J. Horowitz of counsel), for appellants.

      George A. Spohr, Jr., Jeremiah T. Mahoney, Warren C. Fielding, Pasquale E. Conforti, Peter T. Kourides, Charles S. Liss, Leon J. Eltermam, and Irving A. Cook for respondents.
   Lehman, Ch. J.

The plaintiff Good Humor Corporation is engaged in the business of manufacturing and selling at retail ice cream and “ ice cream products.” Its employees make such sales to consumers in the streets of the city from refrigerated motor cars, tricycles and hand carts. Peddling of merchandise in the streets of the city of New York has long been regulated by statutes and ordinances. With exceptions hereafter noted, the employees of the plaintiff selling its products on the streets of the city of New York obtained licenses in accordance with the provisions of the Administrative Code of the City of New York relating to the regulation and licensing of peddlers. In December 1941 the city of New York adopted or attempted to adopt a Local Law entitled “ A local law to amend the administrative code of the city of New York, in relation to the prohibition of itinerant peddling on the streets of the city.”

The Local Law provides: “ Section 1. The administrative code of the city of New York is hereby amended by adding thereto a new section, to follow section 435-13.0, to read as follows: Section 435-14.0. Itinerant peddling prohibited, a. It shall be unlawful for any person to peddle, hawk, vend or sell any goods, wares or merchandise on any of the streets of the city, b. The provisions of this section shall not apply to: 1. Any person who operates and maintains a pushcart or other vehicle under an open air market license issued by the commissioner of public markets pursuant to the agriculture and markets law; or to — 2. Any war veteran or any widow of a war veteran who peddles under a license issued pursuant to section thirty-two of the general business law; or to — 3. Any adult blind person who operates under a license issued pursuant to section ten of the general city law or by the commissioner of markets pursuant to section B36-89.0 of the code; or to — 4. Any person who sells newspapers and periodicals; or to — 5. Any person who owns and operates a farm in the city and who sells produce grown on such farm in the streets of the city; 6. Any person who violates this section, upon conviction thereof, shall be fined not more than ten dollars or imprisoned for not more than ten days, or both. § 2. This local law shall take effect immediately.”

Challenging the validity of the Local Law, the Good Humor Corporation has brought an action to enjoin enforcement of the Local Law. Other parties who are prohibited by the statute from continuing to carry on their business of selling merchandise in the streets of the city have been joined as plaintiffs but have filed no separate complaints. In its complaint Good Humor Corporation alleges: That said Local Law of the City of New York is illegal and void in that (1) the defendant, the city of New York, lacks the power and authority to enact such a law; (2) in that the same is not a proper or valid exercise of the police power of the City of New York and is unreasonable and discriminatory; (3) in that the same is unconstitutional, being in contravention of the Fourteenth Amendment of the Constitution of the United States and article 1, sections 1, 6 and 11 of the Constitution of the State of New York; and (4) in that the same is arbitrarily oppressive, class legislation and in derogation of the due process, and equal protection clauses of both the Constitutions of the United States and the State of New York.”

In the City Home Rule Law the Legislature has conferred upon the local legislative body of each city, power to adopt and amend local laws in relation to matters therein enumerated including the “ acquisition, care, management and use of its streets.” (§ 11, subd. 1, as amd. by L. 1939, ch. 867.) In section 27 of the New York City Charter the Legislature has conferred upon the city council power to adopt local laws as to it may seem meet, applicable throughout the whole city or only to specified portions thereof, which are not inconsistent with the provisions of this charter, or with the constitution or laws of the United States or of this state, for the good rule and government of the city; for the order, protection and government of persons and property; for the preservation of the public health, comfort, peace and prosperity of the city and its inhabitants; and to effectuate the purposes and provisions of this charter or of the other laws relating to the city.” Under these statutes the city has broad power to regulate the use of the city streets and to provide by local law for the good government of the city and the preservation and promotion of the health, safety and general welfare of its inhabitants. Local laws are valid which have a substantial relation to matters within the field where legislative power is vested in the local legislative body of the city by the Constitution and statutes of New York. They must be reasonably calculated to achieve a legitimate public purpose.

The Committee on General Welfare of the Council of the city stated in its report to the Council before the challenged local law was adopted that: “ The object of this bill is to prevent unfair competition by itinerant peddlers with storekeepers who pay rent and various taxes, and it is in the interest of the prosperity of the city and its inhabitants. It also has the approval of the Commissioner of Markets. Your committee therefore recommends its adoption.” Peddling merchandise upon streets and highways is a lawful vocation recognized and regulated by general statutes adopted from time to time by the Legislature. Though streets and highways are intended primarily for the use of pedestrians and vehicles travelling upon them, the vending of merchandise by persons who have no fixed place of business and who carry their merchandise in vehicles or on their persons and who seek customers from those passing along the streets is a common and traditioilal use of the streets. The right to use a street by any person even for travelling “ must be exercised in a mode consistent with the equal rights of others to use the highway.” (People v. Rosenheimer, 209 N. Y. 115, 120.) Any use of the streets, and certainly any use of the streets for a private business purpose, which interferes unduly with the use of the streets by others for travel, may doubtless be prohibited, in proper case, by the Legislature. We need not now pause to define the exact limits of the legislative power of a city to adopt local laws " in relation to the * * * care, management and use of its streets.” Certainly that power is not broad enough to prohibit use of the street for a lawful business, recognized by statute, for the sole purpose of protecting rent payers and taxpayers against competition from others who do not pay rent or taxes. The object of the Local Law as declared in the report of the Committee on General Welfare is not an object which a city has constitutional power to make effective. (People v. Kuc, 272 N. Y. 72; People v. Cohen, 272 N. Y. 319.) That would not necessarily render the Local Law invalid if the local legislative body had other or additional purposes which it had' constitutional power to make effective. The statement of the purpose of the Local Law in the committee report is not conclusive. The question here presented is whether the Local Law is reasonably calculated to promote such “ other or additional purposes.” (Stephenson v. Binford, 287 U. S. 251, 276.)

We assume that even “ the harmless pursuit of a lawful private business ” on the public streets of New York may be interdicted by the legislative body in order to put an end to an undesirable invasion of, or interference with, the full and free use of the highways by the people in fulfillment of the public use to which streets are dedicated. ” (Valentine v. Chrestensen, 316 U. S. 52, 54.) In their answer the defendants have pleaded that the Local Law was adopted to remedy harmful conditions which, they allege, are the results of peddling in the streets of New York. At the trial they offered evidence intended to sustain these allegations. The inference might reasonably be drawn from such evidence that some “ itinerant peddlers ” are unclean in their habits and are irresponsible, insolent, unfair and abusive in the manner in which they conduct their business; that at times some fraudulently use defective scales and measures-; that some keep and store their merchandise and offer it for sale in unsanitary manner; and that in some crowded streets and especially at approaches to bridges peddlers and peddlers’ carts impede traffic. Doubtless the Legislature might adopt reasonable measures to prevent abuses in connection with licensed peddling; we may assume that the Legislature might even authorize a city by local law to refuse to license any peddlers and to stop all peddling if complete prohibition rather than regulation of peddling is a reasonable measure to stop abuses. It would none the less be a drastic method of ending abuses; — a method that may be used only where the abuses are general and difficult to control by regulation and where they cause or threaten injury to the public so serious that the Legislature might reasonably find it outweighs the harm that would be caused to some by complete prohibition. (Adams v. Tanner, 244 U. S. 590; Tolliver v. Blizzard, 143 Ky. 773.) The fundamental question remains whether prohibition rather than regulation in this case is reasonable.

The plaintiff Good Humor Corporation has made a large capital investment in its business. Its employees are examined by a physician before they are hired. They put on fresh white uniforms every day and are taught to be courteous in their dealings with the public. The company employs a chemist to insure the purity of its products. It enjoys a reputation for honesty and it has never cheated customers on weight or content of containers. Its vehicles do not enter congested areas. The city expressly concedes in its brief that these facts are established by the evidence. It thus clearly appears that the business of selling merchandise in the streets of the city can be conducted without creating any of the evils which we are told the local law is intended to prevent. Such evils arise only when those who carry on such a business resort to evil practices. All such evils can be avoided by voluntary regulation of the business or by compulsory regulation in accordance with a reasonable statute or ordinance enforced by the police with the cooperation of judicial officers. A business conducted in the manner in which the plaintiff conducts its business promotes the public convenience without causing any injury to the public. An ordinance which prohibits a business so conducted because others conduct a similar business in manner which creates conditions which the public should not be compelled to tolerate, is patently unreasonable, at least where it does not appear that discrimination between the harmful and the harmless is impractical and that the public interest may be served better by complete prohibition than by further attempts at regulation.

We are told that experience has demonstrated to the city authorities that attempts to regulate are futile. It is said that ordinances which have prohibited peddling in specified areas of the city have been declared by the courts unconstitutional. We have, it is true, said that the city cannot by ordinance prohibit peddling in certain sections of the city when conditions in the restricted section “ are not dissimilar from those existing in many other areas ” and where the ordinance “ bears no relation to the welfare of the public but is designed for the convenience and interest of a special class.” (People v. Cohen, 272 N. Y. 319, 322; People v. Klinge, 276 N. Y. 292.) We have not indicated, however, that an ordinance which would prohibit peddling in restricted areas and streets in order to prevent interference with traffic would be invalid where discrimination is based on traffic conditions. (See Rus Depot Holding Corp. v. Valentine, 288 N. Y. 115, at pp. 121, 122.) We are told that regulation by licensing peddlers is ineffective because many peddlers sell merchandise illicitly without licenses and that the Magistrates Courts do not put a stop to such unlawful practices by inflicting adequate punishment on wrongdoers. Even Good Humor Corporation, it is said, has not always been careful to see to it that all its agents selling ice cream on the streets are licensed.” So far as appears in this record, the only failure of the Good Humor Corporation to see that all its agents were licensed was occasioned by a dispute whether the place where some agents sold ice cream was in fact a public street. That, however, is unimportant. The important facts conclusively shown on this record are that the business of peddling is lawful when conducted in manner which does not injure or annoy the public or impede traffic upon the street; that peddling can be so conducted and is so conducted by the plaintiff; that the evils which we are told the ordinance prohibiting all peddling in the streets — however conducted — is intended to remedy — are due to indecent, unsanitary or unlawful practices of some peddlers; and finally that these practices can be stopped by statutes, ordinances or sanitary regulations aptly formulated and rigidly enforced. The argument that the city has not sufficient enforcement officers and that the courts deal too leniently with offenders is not persuasive.

The Local Law, it seems evident, has no reasonable relation to the public health and is not intended to protect articles of food from contamination through the dust and dirt of the streets for it is not confined to articles of food and even specifically excepts farm products sold by the farmers. It has no reasonable relation to peddling on the streets of New York without a license. That has long been a penal offense and the Local Law does not purport to change the offense, but it would relieve the offenders of competition by licensed peddlers carrying on their work in lawful manner. There is no reason to believe that the offenders would, in such circumstances, voluntarily abandon their illicit practices or that punishment would be more certain or effective. A requirement that every peddler must prominently display his license would permit easy identification of those peddlers who carry on their trade illicitly. Indeed, it is not asserted that even now the police have difficulty in arresting peddlers who are not licensed. The asserted difficulty is that after arrest they receive no adequate punishment. Lax enforcement of regulatory laws affords scant justification for completely prohibitory laws. Contumacious disregard of the' law and abuse of legal rights by some will justify curtailment of the legal rights of those who do not abuse them only where there is reasonable ground for a legislative finding that discrimination between the useful and the harmful is impractical. That does not appear in this case.

The judgment should be affirmed with costs.

Finch, J.

(dissenting). When the local legislative body of the city of New York has adopted unanimously a Local Law, which has been approved by the Mayor of the city and the Board of Estimate, regulating itinerant peddlers so that they may only operate pushcarts or other vehicles in open air markets, may the Court of Appeals declare that the legislation is not a reasonable regulation of a purely local problem and that, therefore, the same is unconstitutional?

The effect of the legislation enacted to meet this problem is not to force the vendors of fruits, vegetables and ice cream to abandon their trade. Bather the Local Law simply compels these vendors to change the manner in which they have pursued their calling, by requiring them to confine themselves to the public markets where adequate facilities have been provided.

The city of New York and the Police Commissioner have appealed on constitutional grounds from an order of the Appellate Division affirming a judgment declaring unconstitutional Local Law No. 111 of 1941 as an improper exercise of the police power and as going beyond the powers of the city under the New York City Charter (1938) and the City Home Buie Law, and enjoining its enforcement. The Local Law in question makes itinerant peddling unlawful except when operated under an open air market license. The Act shall also not apply to the following classes of persons who are permitted to peddle under State laws, namely, any war veteran or widow of a war veteran, who peddles under license issued under section 32 of the General Business Law, or any adult blind person who operates under a license issued pursuant to the General City Law. In addition, the Local Law does not apply to any person who sells newspapers or periodicals, or who owns and operates a farm, in the city and sells produce grown on the farm in the streets of the city.

In answer to a growing demand that the cities of the State should have a larger measure of home rule over local affairs and be freed from the effects of mandatory state legislation, enacted at the* demand of special interests and against the interests of the inhabitants as a whole, the electors of the State adopted at the general election on November 6, 1923, an amendment to the State Constitution providing for home rule for cities. This same article was renumbered and transferred as amended, to the Constitution adopted by the Constitutional Convention of 1938 and approved by a vote of the people in the election of that year. At the following session of the Legislature this home rule provision of the Constitution was reimplemented so that the local legislative body of a city was given power to adopt and amend Local Laws in relation to the property, affairs and government of the city, and specifically for the acquisition, care, management and use of its streets and property * * * ” (L. 1939, ch. 867.) As part of this chapter, known as the City Home Buie Law”, it was specifically provided (article 3, § 30): Legislative Intent. It is the intention of the legislature by this chapter * * * to enable cities to adopt and amend local laws for the purpose of fully and completely exercising the powers granted to cities by the terms and spirit of such article. * * * nor to restrict the powers of the legislature to pass laws regulating matters of state concern as distinguished from matters relating to the property, affairs or government of cities.”

In brief, therefore, the city was permitted to legislate with reference to matters of local concern, while to the State Legislature was left matters of State concern. Specifically, also, the acquisition, care, management and use of the streets of the city were named as a matter of local concern.

For years itinerant peddlers have occasioned a pressing municipal problem. There is the problem of the health of the inhabitant of the city, arising from the contamination of food sold from pushcarts, by the dust and dirt of the streets. Then there is the problem of proper supervision, not only as to the safeguarding of food but as to short weighting and other like problems. These problems have been greatly increased by reason of the many itinerant peddlers who have not only persistently refused to procure licenses but have also evaded sanitary and traffic regulations. These unlicensed peddlers have wholly evaded supervision. In connection with proper supervision, this record shows that during the year 1941 the total number of arrests and summonses for peddling without a license was 24,575. Also, some of these peddlers have been arrested as often as three times a day, and as soon as released on a couple of dollars bail, or arraigned and sentence suspended, are immediately back at the old stand. Other examples showing difficulty of enforcement are cases of one peddler who was arrested eighty-eight times, and of another who was arrested seventy-six times in the year 1941. Even without the express words of the City Home Buie Law, confiding to the municipality the care, management and. use of the streets, the problem is a local one. The policy with reference to the use of the streets as places from which to transact business, is thus clearly for the local legislature of the city to determine. The city of New York might wish to deal with the problem in one way while the city of Buffalo or Syracuse might adopt a different policy.

The policy adopted by the city of New York does not involve destruction of the business of these vendors, but regulation through confinement to open air market places where supervision will be possible and practicable. The availability of cheap means of transportation to any of these open air markets renders them readily accessible to the public. All regulation, of course, involves a certain amount of prohibition. As was said in Kentucky Whip & Collar Co. v. Illinois Central R. R. Co. (299 U. S. 334, 347), Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce * * * ” when necessary to protect the people of the states. Granted the existence of the power to regulate, whether the prohibition imposed be narrow or sweeping, temporary or permanent, raises only the question whether the challenged legislation is reasonably adapted to achieving the desired result.

In view of the direct relationship between the health of the inhabitants of the city and the protection of the articles of food and other articles from contamination through dust and dirt of the streets, together with the impossibility of any reasonable supervision by the city of these itinerant peddlers, and the opportunity under present provisions for the influx into the city of the great army of unlicensed peddlers, together with the problems of traffic and the freeing of the streets from private sales, we cannot say that there is no reasonable basis for the enactment of this Local Law.

This Local Law is further attacked upon the ground of the exceptions contained therein. Such legislative distinctions are presumed to be founded upon a valid basis in the absence of proof to the contrary. The exceptions in favor of veterans and the blind are provided for by State law. (General Business Law, § 32; General City Law, § 10.) Hence, as to these two classes of persons there has been declared a State policy. The exception relating to the vending of newspapers and periodicals is obviously founded upon a distinction in the nature of this business, it involving no menace to health and no hindrance to traffic. Likewise, the exception in favor of the farmer in the city who sells produce grown on his farm presents no danger for lack of proper supervision. All these exceptions rest upon a reasonable classification.

It follows that the judgment appealed from should be reversed and the complaint dismissed with costs.

Loughran, Rippey and Desmond, JJ., concur with Lehman, Ch. J., Finch, J., dissents in opinion in which Lewis and Conway, JJ., concur.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Lizzie Ward, as Administratrix of the Estate of Stanley C Ward, Appellant, v. New York State Electric & Gas Corporation, Respondent.
    Argued March 9, 1943;
    decided April 15, 1943.

      George A. King and A. J. Rodenbeck for appellant.

      A. H. Harpending for respondent.
   Per Curiam.

We agree with the Appellate Division that there is no testimony in this record to support a jury finding that defendant failed to comply with a definite notice or warning that the wires had to be removed before a fixed date. However, it was still a question of fact for the jury as to whether under all the circumstances defendant had reason to anticipate that the crane might come into contact with the wires and as to whether defendant’s failure thereafter to remove the wires was negligent.

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

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., dissents and votes to affirm.

Judgments reversed, etc.


author: Conway, J.

text:
    Charles Warney, Appellant, v. Board of Education of School District No. 5 of the Town of Irondequoit et al., Respondents, et al., Defendants. Virginia Warney, an Infant, by Charles Warney, Her Guardian ad Litem, Appellant, v. Board of Education of School District No. 5 of the Town of Irondequoit et al., Respondents, et al., Defendants.
    Argued January 12, 1943;
    decided April 22, 1943.

      Charles P. Maloney for appellants.

      Charles D. Mercer and John B. Sullivan for Board of Education, respondent.

      Robert C. Winchell for Josephine Glawe, respondent.
   Conway, J.

These are appeals from judgments of the Appellate Division reversing on the law and facts judgments for plaintiffs entered upon the verdicts of a jury and dismissing the complaints. The actions were brought by the infant plaintiff for personal injuries and by her father for loss of services. The defendants against whom judgments were obtained were the Board of Education of School District No. 5 of the Town of Irondequoit (hereinafter called the Board) and one Josephine Glawe.

At the time of the accident on January 16, 1941, the infant plaintiff (hereinafter referred to as plaintiff) was twelve years of age. She attended a school of defendant Board and was employed in the cafeteria owned and operated by it. The cafeteria was maintained under legislative sanction (Education Law, § 310, subd. 22.) The defendant G-lawe was in charge of the cafeteria and supervised the work of the plaintiff. The latter received as compensation each day a fifteen-cent lunch. On the day in question she was putting dishes on the third shelf above a counter in the kitchen of the cafeteria and in order to do so was standing upon a stool some two and one-half feet in height. While so engaged, she turned in answer to a summons from one of the assistants to Mrs. Glawe and was thrown to the ground when the stool upon which she was standing toppled over, due, it was alleged, to the fact that one of its four legs was shorter than the other three. At the time of her fall she had a glass in her hand and sustained a very severe wound when the glass was broken in her fall.

Plaintiff relied upon the statutory liability of defendant Board by reason of its violation of Labor Law, section 130, in illegally employing a child of twelve years and upon the liability imposed by Education Law, section 275, subdivision 14, requiring that school furniture, apparatus and appurtenances be kept in necessary and proper repair. The jury found verdicts against the Board and the defendant Glawe.

Under the charge of the court it is not possible to determine whether the verdicts were based upon a violation of the Labor Law or of the Education Law or both. There was no claim that there was common law negligence. Defendants pleaded by way of separate defense that plaintiff had elected pursuant to section 3, group 19, of Workmen’s Compensation Law to become subject to the provisions thereof and that the defendant Board had fully complied with the provisions of the act.

That defense was dismissed at the close of the entire case and we think properly so. It is true that permission had been granted by the Legislature (Workmen’s Compensation Law, § 3, group 19) for an employer, including a municipal corporation such as the defendant Board, to bring a non-hazardous employment within the coverage of the act by securing compensation to employees in accordance with Workmen’s Compensation Law, section 50, and that, at the time of the accident, an employee was deemed to have accepted the coverage if he did not give notice in writing to the contrary. “ A minor employee shall be deemed sui juris for the purpose of making such an election.” (§ 3, group 19.) However, section 51 provides that every employer who has complied with section 50 shall post and maintain, in a conspicuous place or places, notices in form prescribed by the Industrial Commissioner stating the fact that he has complied with the rules of the department and that he has secured the payment of compensation. There was no proof that the defendant Board had posted a notice in form prescribed by the Commissioner so as to cover the plaintiff. There was evidence that a notice was posted in the basement where the cafeteria was located. The notice provided: “ The undersigned employer hereby gives notice that he has complied with the provisions of the Workmen’s Compensation Law and the rules of the Industrial Board of the State of New York, and that he has secured the payment of compensation to his employees, and the dependents of employees, engaged in the hazardous employments enumerated in the said law. * * *.”

Plaintiff was not engaged in a hazardous employment and such posted notice gave her no notice so as to put her to an election.

There was testimony by an official of the Department of Labor that the form of notice just quoted was commonly in use but that he had no knowledge as to whether it had been approved by the Commissioner. Another form of notice which had been approved by the Commissioner and was in use, bnt not by the defendant Board, at the time of the accident was then marked for identification but excluded from evidence upon defendants’ objection. It provided: “ The undersigned employer hereby gives notice that he has conformed to the provisions of the Workmen’s Compensation Law and the rules of the Industrial Board of the State of New York and that he has secured the payment of compensation to his employees, and the dependents of employees, engaged in employments enumerated in or brought within the provisions of said law. * *

In order for an employee engaged in an employment not enumerated in section 3, groups 1-17 inclusive, to be covered under Workmen’s Compensation Law, section 3, group 19, there had to be at the time of the accident a joint election by employer and employee. “ The election by the employer must be made through affirmative acts intended to give notice to the employees and secure approval by the Commission; the election by the employee is conclusively presumed unless by affirmative acts he gives notice not to elect. The employer asserting that the sole remedy of an injured employee is under the Workmen’s Compensation Law must undoubtedly prove the joint election of employer and employee.” (Queck-Berner v. Macy, 240 N. Y. 341, 346.) Iu order to defeat plaintiff’s right to recover, on the ground that the exclusive remedy is under Workmen’s Compensation Law, the defendant must show that the notices required by section 51 of the Workmen’s Compensation Law were posted. (Sweeny v. Wait, 261 N. Y. 690; Hubert v. Tucker, 275 N. Y. 485.)

Where the employee’s election is presumed because of failure to give notice in writing of his election not to be subject to the provisions of Workmen’s Compensation Law, a strict compliance with the statute with regard to notice must, of necessity, be required. The purpose of notice is to apprise the employee that the employer has elected to carry compensation insurance and that if he does not wish to be covered he must make an election. The form of notice used here would not apprise an adult that the employer had elected to include non-hazardous occupations within his Workmen’s Compensation Law coverage and this was a non-hazardous occupation. Certainly it would not apprise a child of twelve years of that fact.

Moreover, defendant Board put in evidence policies of compensation insurance for the years 1940 and 1941. Paragraph five of each policy provided it should apply to injuries sustained “ by any person or persons employed by this Employer whose entire remuneration shall be included in the total actual remuneration for which provision is hereinafter made, upon which remuneration the premium for this Policy is tó be computed and adjusted.” Proof was offered by plaintiff to show that on the audit of the payroll for calculation of the compensation premiums no disclosure was made by the defendant Board as to the employment of any of the children occupied as was the plaintiff. We think that proof should have been received for if the defendant Board did not cover children such as plaintiff and never intended so to do there was no election by the employer to include them. In addition, we think it would be contrary to the public policy of this State to hold that a child of twelve years, illegally employed (Labor Law, § 130; Education Law, § 629), could make an election to take compensation coverage for injuries which might be suffered by her in her illegal employment.

The defendant Board pleaded in its answer and urges upon this appeal that plaintiff was an employee within the meaning of the Workmen’s Compensation Law but not within that of the Labor Law nor of the Education Law. Thus it argues: " The plaintiff Virginia Warney, was an employee of the School District rendering assistance in return for a free meal in the cafeteria.” It urges, however, that the Legislature in enacting the Labor Law and the Education Law did not contemplate a situation such as is here presented but rather a more commercial one. We do not think that it may reasonably be said that the Legislature had in mind that rather fine distinction. The Legislature used very broad words in forbidding employment of children both in the Labor Law and the Education Law. Thus in Labor Law, section 130, it provided:

1. No child under sixteen years of age, * * * shall be employed in or in connection with or for any * * * restaurant, * * *.
“2. No child under sixteen years of age, * * * shall be employed in or in connection with or for any other trade, business or service.” (Italics supplied.)

• In Education Law, section 629, it provided: “A. It shall be unlawful * * * to employ in any business or service (1) a minor under 16 years of age * * (Italics supplied.) There are exceptions which are not here material. The plaintiff was employed in the cafeteria of the school according to defendant Board’s own contention. Whether or not a school cafeteria is a restaurant within Labor Law, section 130, subdivision 1, and that is questioned in the briefs, is immaterial. It is a “ service ” of some kind within the contemplation of Labor Law, section 130, subdivision 2, and of Education Law, section 629. Moreover, Education Law, section 310, subdivision 22, permitted the defendant Board to ‘ ‘ provide, maintain and operate a cafteria or restaurant service ” so long as it was self-supporting. Can anything be more commercial than making a project self-supporting?

■ Thus plaintiff has a statutory remedy for the negligence of the defendant Board. Violation of the Labor Law is per se evidence of negligence on which a jury may find an employer liable for injuries suffered by his employee. (Koester v. Rochester Gandy Works, 194 N. Y. 92; Amberg v. Kinley, 214 N. Y. 531, 538; Karpeles v. Heine, 227 N. Y. 74, 79, 83.) That was one of the theories upon which the case was properly submitted to the jury. The other was based on a violation of the Education Law.

In each action, the judgments should be reversed and a new trial granted with costs to the appellant to abide the event.

Loughran, Finch, Rippey and Lewis, JJ., concur; Lehman, Ch. J. and Desmond, JJ., concur in the result in the following memorandum: Section 130 of the Labor Law is directed against various evils not found in connection with lunch-time employment of children in a school cafeteria; the statute should not be so construed as to forbid such employment.

Judgments reversed, etc.


author: Rippey, J. Finch, J.

text:
    Laura Solomon, Respondent, v. Charles Solomon, Appellant.
    Argued February 25, 1943;
    decided April 22, 1943.

      Charles Rothenberg, Harvey I. Harris and Julian V. Carabba for appellant.

      Joseph J. Dreyer for respondent.
   Rippey, J.

Plaintiff and defendant were married in Brooklyn on May 27, 1929, and thereafter lived together and cohabited as husband and wife until May, 1934. There is no issue of the marriage.

On February 11,1938, nearly four years after the separation, Mrs. Solomon commenced an action against her husband for a separation and support. In her verified complaint in that action, she detailed a course of cruel and inhuman treatment toward her by the defendant during the period in which they lived together which rendered it unsafe and improper for her longer to live and cohabit with him and accordingly she separated from him in May, 1934. As an additional ground for a decree in her favor, she set up the defendant’s failure to furnish her with support and maintenance. Issue was joined and the issues raised by the pleadings were exhaustively litigated. The trial court found, upon the merits, that “ there was no cruel and inhuman treatment, no conduct which made it unsafe or improper for the plaintiff to cohabit with the defendant and no failure of the defendant to provide for the plaintiff,” and dismissed the complaint. The defendant counterclaimed for a separation on the ground of abandonment. On that issue, the trial court found that plaintiff left the defendant without reason, without the defendant’s consent and with no intention to return, and granted a judgment of separation to the defendant on the ground of abandonment. Upon appeal, the Appellate Division modified the judgment by dismissing the counterclaim and otherwise in all respects affirmed (256 App. Div. 959). As a basis for such modification, the Appellate Division reversed the finding of the trial court that the plaintiff left the defendant without his consent and with no intention to return and made a new finding that the separation was by consent. This court, without opinion, unanimously affirmed (282 N. T. 565).

Decision in the foregoing action was handed down by the Court of Appeals on December 28, 1939, and on January 11, 1940, an order was entered in the office of the clerk of Kings county upon the remittitur. On March 1, 1940, the plaintiff commenced the action at bar against her husband for a separation and support on the ground that the defendant had refused to live with her, establish a home for her, or otherwise maintain and support her according to his means and ability. At the end of the trial the court rendered an opinion in which he included his findings of fact and conclusions of law upon which judgment was entered in the office of the clerk of Kings County on May 9, 1941, dismissing the complaint on the merits, with costs. The trial court found that there were no reasonable grounds for plaintiff making the charges against the defendant in the prior action and that the plaintiff, preliminary to the commencement of the present action, had made no bona fide offer to return and that she had no intention to return to the defendant. On appeal to the Appellate Division, those findings of fact were reversed and new findings of fact and conclusions of law were made to the effect that the parties were living apart by consent, that the plaintiff was entitled to return to her husband and that his obligations to receive and support her were resumed upon her offer to return, which offer was made in good faith and with the intention upon her part to return to the defendant. It was further found by the Appellate Division that the charges which she made against the defendant in the prior action for a separation did not estop her from returning. Upon those findings, the Appellate Division directed judgment in favor of the plaintiff and from that judgment the defendant has appealed to this court.

It was conclusively and finally adjudicated in the former action that the charges made by the plaintiff against the defendant were untrue. Upon reiteration of them by the plaintiff on the trial in the present action, the trial court found that those charges were false. Although it was finally adjudicated in the former action that, since the defendant agreed to the separation, the defendant was not entitled to a decree of separation on the ground of abandonment, yet it appears from the plaintiff’s own testimony given at this trial that the defendant objected to her leaving him originally and finally agreed to the separation only when he found that she was not willing to live with him. Having left the defendant voluntarily, the plaintiff certainly is not entitled to a decree of separation on the ground that the defendant has abandoned or failed to support her unless she shows at least that she has offered in good faith to return and intends to carry out in the future her marital obligations. In an action for such relief, the law is well-settled. When married persons are living separate and apart by consent, either one who has not willfully repudiated or violated the obligations of the marriage may terminate the separation by requesting in good faith a renewal both of the marital relation and its obligations and, if the other refuse, such refusal will furnish the basis of an action for separation on the ground of desertion. “ To entitle one to a divorce under such circumstances, the offer of return must be made in good faith, it must be free from improper qualifications and conditions, and it must be really intended to be carried out in its spirit if accepted ” (1 Bishop, Marriage, Divorce and Separation [1891] §§ 1705-1708).

Up to January 11, 1940, when the judgment of this court was finally made the judgment of the Supreme Court in the former action, the plaintiff had made no effort" at reconciliation with the defendant. Having thus lost her suit for alimony and apparently desirous of starting a new action, she promptly consulted her attorney and others. Thereupon she reached the defendant by telephone and asked him for an interview. She said to him that it seemed to her the litigation was over and that she could not stand any more and she asked him to meet her. Later, over the telephone, he asked her to be more specific as to what she wanted to talk about, but she made no statement that she wanted a reconciliation and desired to go back to live with him again, nor did she say anything about forgiving or forgetting the past or that she regretted the former litigation in which she had made the charges against him. It was not until he failed to call her within the following two days, as she says he had agreed to do, that she asserted, and then in writing, that she desired to live with him as his wife and to establish a home together. His failure to make a requested reply brought the statement, again in writing, that she could only assume that you have decided not to live with me.” The defendant had not rejected a reconciliation. “ When the wife leaves the husband and without justification brings an action against him for separation, the husband’s marital duty to her is reduced towards a minimum,” and it is not his duty to pay amorous court to a rebellious and unrepentent wife to induce her to. return ” (Bohmert v. Bohmert, 241 N. Y. 446, 452). The learned trial court said, “ If she really wanted to live with the defendant, she would have told him so on the telephone and her letters would have taken a form less suggestive that they were written on advice of counsel.”

The defendant had no obligation to accept the offer arid take the plaintiff back to test out the question as to whether the offer to return was made in good faith with an intention to resume continuance of the marital relationship. Spontaneous and conciliatory demonstration of good faith on her part to return and resume marital relations and obligations previous to defendant’s acceptance of her offer to return was, at least, required. Here, she testified that she was sorry that she was unsuccessful in the former suit and it appeared that she had neither forgotten his conduct toward her nor forgiven him for his alleged bad treatment of her. She disclaimed on the present trial any definite or recognizable affection for the defendant. Even convenience or necessity would not be expected to be a sufficient inducement to a woman to admit the possibility of a safe return to live with a man such as the plaintiff has pictured her husband to be. As the trial court points out, her assertion that she believed that his experience in the former litigation (which he won) after the Court of Appeals decision was such as to make him a better man was hardly consistent with the idea that he was a safe man with whom to live and to whom she desired in good faith to return. The respondent failed to establish upon this trial that she made her offer to return to the defendant in good faith or that she intended her offer to return to be carried out in its spirit, if accepted.

Furthermore, the plaintiff had no absolute right in this action to go back and live with her husband and compel him to accept her. Upon the conceded facts she desired to live away from him. She insisted on living away from him regardless of whether or not he agreed to the separation and while living away from him she asserted, and even today asserts, that he treated her in manner which justified the separation. A cause of action for separation or divorce cannot be based upon the dereliction of one party to a marriage where there has been consent to or condonation of the dereliction. Accordingly, we held in the former action that the plaintiff’s refusal to live with the defendant did not entitle the defendant to a decree of separation since the defendant gave his consent, even though reluctantly and because he did not wish to invoke legal remedies against a recusant wife. Nonetheless, the wife was recusant, and thereafter, by bringing an action against her husband, committed a wrong against him. These facts cannot be disregarded when the wife, claiming belated repentence, demands restoration of marital relations which she has ignored and spurned. She has no absolute rights to compel her husband to resume marital relations in such circumstances.

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

Finch, J.

(dissenting). After the determination in the prior actions, that neither party had made out a cause of action for separation against the other, either party had the right to offer in good faith to resume cohabitation with the other (Bohmert v. Bohmert, 241 N. Y. 446, 453; Silberstein v. Silberstein, 218 N. Y. 525, 527, 529). That the litigation was bitter and that a number of years had elapsed during which the litigating parties had lived apart are not sufficient to defeat the plaintiff’s right since the plaintiff, as soon as it was finally determined that she had no legal cause to live apart from her husband, offered to resume cohabitation with him (Mirizio v. Mirizio, 248 N. Y. 175, 181). It is not required that plaintiff put out of her memory all the unfortunate differences that had occurred during her marital fife, but simply that, she intend to return to her husband unconditionally if he accept her offer: In Williams v. Williams (130 N. Y. 193, 198) it was said: “ But upon the plaintiff’s offer to return unconditionally, the defendant was without legal excuse in refusing to receive her.”

In the case at bar, the' wife’s testimony that she made the offer to return in good faith stands uncontradicted because the defendant did not take advantage of the opportunity to present evidence to the contrary. In addition, the trial judge was justified in concluding that the defendant would have rejected any offer to return, whether made in good faith or not. Under such circumstances the following language used by the court in O’Leary v. O’Leary (256 App. Div. 130, 133) is applicable here: “ Although defendant alleges in his answer that plaintiff’s offer to. live with him as his wife was not made in good faith, his testimony — that he would not live with plaintiff under any circumstances — and plaintiff’s testimony that she was willing to live with him, leave no basis for a finding that her offer was not made in good faith.”

The judgment appealed from should be affirmed with costs.

Lehman, Ch. J., Loughran and Conway, JJ., concur with Rippey, J.; Finch, J., dissents in opinion in which Lewis and Desmond, JJ., concur.

Judgment accordingly.


author: Lewis, J. Rippey, J.

text:
    Agatha (named herein as Mrs. Reginald) Reichman, Appellant, v. Compagnie Generale Transatlantique, Respondent.
    Argued March 8, 1943;
    decided April 22, 1943.

      Harold R. Zeamans and Milton Haas for appellant.

      Edgar R. Kraetzer and David L. Corbin for respondent.
   Lewis, J.

The plaintiff, while a passenger first-class on the defendant’s steamship Champlain cruising from New York to the West Indies, placed cash in the amount of $160 and jewelry of the conceded value of $13,200 in a safe-deposit envelope and delivered the same for safe-keeping to the desk of the ship’s cashier. She had taken this precaution after reading the following item of General Information for Passengers ” contained within a “ Passenger List Booklet ” with which she had been provided by the defendant after she came aboard ship: Valuables. The particular attention of passengers is drawn to the ticket conditions regarding the carriage and custody of articles specified in Section 4281 of the revised Statutes of the United States; but passengers can, and are accordingly advised to protect themselves by insurance. The French Line has provided a safe at the Information Desk in which passengers may deposit money, jewels, ornaments, documents, or other valuables for safe keeping, and a deposit receipt will be issued by the Purser.”

At the time of depositing the envelope at the cashier’s desk there was delivered to the plaintiff a receipt which read as follows:

“ Compagnie G-enerale
Transatlantique
6 Ene Auber — Paris
No. 4958 Steamship Champlain
Voyage No.
Eeceived on deposit from Mrs. Eeichman
sealed
without liability or responsibility of any nature while in the charge of the company or of the Captain.
On Board 193
For the Company
Cashier
(Signed) Max Kleiner
Note: This receipt must be presented by the passenger to obtain the return of any deposit.”

Later, when the plaintiff presented her receipt and demanded the return of her property, she was informed that her safe-deposit envelope could not be found. Further search under supervision of officers of the ship was unavailing. In short the defendant’s failure to return to the plaintiff the envelope and its contents has led to the present action by which the plaintiff demands of the defendant steamship company that it make good her loss.

At the close of the trial the defendant, consistent with its prior offer of judgment, moved for a directed verdict of $250, in favor of the plaintiff. The motion by the defendant was in accord with the provisions of the plaintiff’s passage contract which, as we shall see, formed the basis not only of her first cause of action but also of a separate and partial defense interposed by the defendant. The plaintiff then moved (1) for a directed verdict in her favor in the amount of $13,360 and (2) for the submission to the jury of issues of fact which it was claimed were presented by evidence introduced in support of the plaintiff’s second cause of action in which she charged the defendant with the conversion of her property. The trial court denied the plaintiff’s motions and, in response to the defendant’s motion, directed a verdict of $250 in plaintiff’s favor. The judgment entered upon the directed verdict was thereafter unanimously affirmed at the Appellate Division. The case is here on appeal by the plaintiff by our permission.

Claiming that she was entitled at Trial Term to a directed verdict for the stipulated value of her property, the plaintiff asserts that her delivery of valuables to the defendant for safekeeping constituted a common law bailment and that the defendant may not now invoke as a partial defense provisions in her contract of passage by which the defendant limited its liability to an amount fixed by an agreed valuation of the property lost.

In the verified bill of particulars furnished by the plaintiff is the statement — That the plaintiff was a passenger on board the S. S. Champlain, under no other expressed contract than that contained in Exhibit ‘ A ’ annexed to the defendant’s answer.” Concededly Exhibit “ A ” is the ticket issued by the defendant to the plaintiff. It bears the caption “ Passage contract subject to the terms stated on this page and overpage.” After numerous items which, among others, recite the name of the ship, its sailing schedule, the name of the passenger (the plaintiff) and the fare paid, there appears the statement — “ Passengers should read the terms of the contract of carriage stated below and overpage, their particular attention being called to the limitations of liability therein contained.” Then follows the heading “ Terms of contract — Read before accepting,” after which appear certain provisions which establish the conditions under which the defendant agreed to furnish the transportation accepted by the plaintiff:

“ In consideration of the sum of money hereinabove stated French Line (Compagnie Generate Transatlantique) agrees to accept the persons above named as passengers for the voyage above described subject to the terms of this contract stated on this page and overpage:
The purchaser hereof covenants and warrants that he is duly authorized by or in behalf of all of the passengers named herein to agree to all the stipulations of this contract stated on this page and overpage, and by accepting and/or using this ticket he and/or they do agree accordingly and do agree that the same shall be binding on them with the same force and effect as if they had every one of them signed this contract.
4. Regulations and Limitations oe Cabbies’s Liability with Respect to Pebsonal Pbopebty. (a) The term ‘ baggage ’ as used herein means only trunks, handbags, valises, satchels and bundles, containing such wearing apparel and personal effects as are necessary and appropriate to the purpose of the journey and to the passenger’s station in life. * * *
(g) Each first-class passenger represents, and it is hereby agreed, that the total value of his baggage, as defined in section 4(a) of this contract, does not exceed $150 and that the total, value of all other property taken with him on the voyage, and carried on his person or retained in his possession, does not exceed $100; * * * The Carrier’s liability, if any, * * * shall not exceed the above amount in the event of loss, damage or delay to a/ny of the passenger’s property taken with him on the-voyage, the fare for the voyage and the rate of excess baggage tariff being in part based upon the above valuation. Nevertheless, each passenger may, prior to embarkment, deliver a declaration in writing, specifying a higher value, to the Carrier at 610 Fifth Avenue, New York, N. Y. U. S. A. or at 6 Rue Auber, Paris, France, or to the Carrier’s baggage master, and pay an additional amount of 1% of the excess of value thus specified over the said amount, for which a written receipt must be obtained, in which case the Carrier’s liability shall not exceed such specified value.” (Emphasis supplied)

The jewels and currency placed by the plaintiff in the safe-deposit envelope and delivered to the defendant’s agent for safekeeping constituted “ the passenger’s property taken with [her] on the voyage ” within that provision of her passage contract, quoted above, by which was limited the “ Carrier’s liability.” The plaintiff’s act of acceptance of the passage contract gave rise by implication to her assent to the limitation upon the defendant’s liability which was one of the express conditions upon which the defendant undertook to transport the plaintiff. -Had she desired to evaluate the property which she took upon the voyage at a figure higher than that which fixed the limit of defendant’s liability, and thereby protect herself in full against the loss of her valuables, she could have done so, under provisions of the contract, by paying one per cent of whatever excess value she might specify.

We think the agreed valuation clause of the passage contract, which the defendant now invokes, was in no sense ambiguous. It was reasonable in its terms and was authorized by the settled law of this jurisdiction. (Kilthau v. International Mercantile Marine Co., 245 N. Y. 361, 365.) Indeed what was said in Murray v. Cunard S. S. Co. (235 N. Y. 162 at pp. 165, 166) applies with equal force to the facts now before us: “ The law is settled in this state that a ticket in this form, issued by a steamship company for a voyage across the ocean, is more than a mere token or voucher. It is a contract, creating the obligation and defining the terms of carriage (Steers v. Liverpool etc., S. S. Co., 57 N. Y. 1; Tewes v. North German Lloyd S. S. Co, 186 N. Y. 151, 155; 1 Williston on Contracts, §§ 90, 90a, 90b). The ruling is in accord with judgments in other jurisdictions (Fonseca v. Cunard S. S. Co., 153 Mass. 553; O’Regan v. Cunard S. S. Co., 160 Mass. 356; Secoulsky v. Ocean Steam Nav. Co., 223 Mass. 465; cf. N. Y. etc., R. R. Co. v. Beaham, 242 U. S. 148, 151; Cooke v. T. Wilson Sons & Co. 1916, 85 L. J. R. [K. B.] 895, 896; Hood v. Anchor Line, 1918, A. C. 837, 845, 849). This is not a case of a mere notice on the back of a ticket, separate either in substance or in form from the body of the contract (The Majestic, 166 U. S. 375). Here the condition is wrought into the tissue, the two inseparably integrated. This ticket, to the most casual observer, is as plainly a contract, burdened with all kinds of conditions, as if it were a bill of lading or a policy of insurance. No one who could read could glance at it without seeing that it undertook to prescribe the particulars which should govern the conduct of the parties until the passenger reached the port of destination.’ (Fonseca v. Cunard S. S. Co., 153 Mass. 553). In such circumstances, the act of acceptance gives rise to an implication of assent (1 Williston on Contracts, §§ 90, 90a, 90b; Fonseca v. Cunard S. S. Co., supra, N. Y. C. Ry. Co. v. Beaham, supra.) The passenger who omits to read takes the risk of the omission.” (See also Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151, 154, 155; Baron v. Compagnie Generate Transatlantigue, 108 F. 2d 21.)

In the case at bar the contract of passage — unlike the contract involved in Hasbrouch v. N. Y. C. & H. R. R. R. Co. (202 N. Y. 363), upon which the plaintiff relies — does not avoid liability for the entire loss suffered by the plaintiff; it places upon the plaintiff’s property taken with her on the voyage a valuation which establishes the measure of the defendant’s limited responsibility in the event liability is established. (D’Utassy v. Barrett, 219 N. Y. 420, 424, 425.)

Passing to the plaintiff’s claim that the trial court erred in dismissing her second cause of action which charges the conversion of her property by the defendant: We find no evidence that the defendant converted to its own benefit the property which is the subject of this suit; nor is there evidence that in connection with the plaintiff’s property the defendant was guilty of an affirmative act of wrongdoing which will deprive the defendant of the benefit of its contract with the plaintiff for a liability limited to an agreed valuation. (Magnin v. Dinsmore, 70 N. Y. 410, 417-419; Wamsley v. Atlas S. S. Co., 168 N. Y. 533, 536-538.) In the present case we find in the text of the agreed valuation clause (§ 4 [g]) that “ * * * the fare for the voyage * * * [is] in part based upon the above valuation.” In those circumstances — “ The distinction must be borne in mind between a limitation of liability and an agreed valuation in case of liability. When it is urged that the limitation of value should notjbe applied to any case of theft by the carrier’s employees, for the reason that the company is liable for such acts as if the company had been the thief (Adams Express Co. v. B. & W. Co., 35 App. Cas. [D.C.] 208), the argument loses sight of this distinction. When the agent acts within the scope of his employment in taking possession of the shipment ' in legal effect it was the same as if the defendant, personified, had taken it ’ (Vaun, J., in Hasbrouck v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 363, 373), but the liability may exist and the valuation of the shipment in case of liability may be agreed upon when the rates for transportation are based on the valuation of the goods intrusted to the carrier.” (D’Utassy v. Barrett, supra, p. 424; and see Millhiser v Beau Site Co., 251 N. Y. 290, 294, 295; M. & T. Trust Co. v. Export S. S Corp., 262 N. Y. 92, certiorari denied 290 U. S. 650.)

The judgment should be affirmed with costs.

Rippey, J.

(dissenting): On February 14, 1937, plaintiff, who spoke and understood the English language, was a first-class passenger and member of a party of some seven hundred persons on a luxury cruise then being conducted by defendant on its French Line steamer Champlain from the Port of New York to Kingston, Nassau, and to other ports of call, thence returning to New York. On that day, upon demand, the defendant failed to return to her certain jewelry of the stipulated value of $13,200 and $160 in cash which she had entrusted to the exclusive custody and possession of the defendant and which was accepted by it for safekeeping, and she thereupon brought this action to recover for her loss.

In her complaint plaintiff sets up two causes of action, each sufficient upon its face, — the first for breach of defendant’s contract of bailment, the second for conversion. Aside from denials of various allegations of the complaint, the defendant pleaded as a separate and partial defense that its liability was limited, in any event, to the sum of $250, beyond which amount the plaintiff could not recover, if entitled to receiver at all. Upon the trial, there was no substantial dispute on the essential governing facts; both parties moved for a directed verdict for the plaintiff on the first cause of action, the plaintiff moving for recovery of the full amount of her loss and the defendant for $250 only. The trial court granted defendant’s motion, together with its additional motion to dismiss the second cause of action, refusing, upon plaintiff’s specific request, to submit the case to the jury on the theory of conversion. Upon unanimous affirmance by the Appellate Division of the judgment entered upon that decision, every fact necessary for plaintiff’s recovery under her first cause of action has been finally and conclusively determined in her favor and the only question presented upon this appeal upon that cause of action and the defense referred to is whether, as matter of law, defendant’s liability for plaintiff’s loss was limited to $250.

Plaintiff embarked upon the vessel upon which the cruise was being conducted at the Port of New York on the evening of February 10, 1937, shortly before the time of sailing. She had paid the required cost and was a passenger properly on board the ship. She then had with her, but not as a part of her baggage, the cash in question for extra spending money, together with the jewelry which was concededly appropriate to her station in life and not unlike that used by other women passengers when formal attire for all passengers and evening gowns and jewelry and personal ornaments of value for the women aboard was in order at dinner and subsequent dances, social functions and entertainments arranged on board ship or on shore at ports of call by the defendant for the passengers during the cruise. At the time of embarkation, a booklet was furnished to the plain tiff and similar booklets to other passengers in which names of the passengers were listed and miscellaneous general information was printed concerning various services which defendant rendered to the passengers on board. Among other things appeared the statement, “ The French Line has provided a safe at the Information Desk in which passengers may deposit money, jewels, ornaments, documents, or other valuables for safe-keeping, and a deposit receipt will be issued by the Purser. ’ ’ Notices were posted throughout the ship to the effect that safe deposit boxes and safety envelopes were available for the use of pas-' sengers and it was the general practice of defendant to advise passengers who were known to have jewelry to take safe deposit boxes and safety envelopes for the deposit of their valuables. :

In accordance with the practice and rules of defendant, one of the duties of the chief cashier imposed upon him by the defendant was to receive and retain the passengers’ valuables for safekeeping. Some 48 private safe deposit boxes were provided for the use of the passengers who requested them. When one such was assigned to a passenger for his individual and exclusive use, he was given a key to one lock and the master key for the second lock was retained by the chief cashier and his assistant so that access t.o the box could only be had jointly by the passenger and one of the cashiers. Such a situation did not exist when safety envelopes were provided. In that case, a receipt was given to the passenger but no key to the box. All keys were retained by the chief cashier and his assistant. This arrangement was necessary since two of the safe deposit boxes only were used for the safekeeping of some 300 safety envelopes belonging to as many different passengers. . Obviously it was¡ impracticable to furnish keys to the two boxes to all such depositors. At no time between the receipt of the envelope and its' subsequent delivery to the passenger did the latter have anyj control over the deposit or any access to or control over the safe deposit box containing his envelope.

The information desk, about four feet high, was located on “A” deck in an enclosed space in the center in front of and facing the main stairs. A chief cashier or his assistant was always on duty. The chief cashier’s office was on the left of the desk. Back of his office was the office of the assistant cashier and behind that was the safe containing the safe deposit boxes. The cashier’s office was open continuously for the receipt of passengers’ valuables from 9 a. m. to 10 p. m. each day during the voyage. Others generally using that portion of the boat for offices within the same enclosure were a stenographer and also a wireless secretary who had his desk at the right end of the information desk. In addition, the night clerk, purser and a cleaner were permitted behind the counter. There were wooden gates with glass panels on top between the offices of the chief cashier and the wireless secretary and the center part of the counter which might be locked from the interior, but they were never locked. Access to the enclosure containing the safe deposit boxes was ordinarily obtained only through the cashier’s office.

On the morning of February 11, the plaintiff proceeded to the information desk and requested the use of a safe deposit box in which to deposit her jewelry and was told that none was available. She thereupon requested information as to what she would do with the jewelry and money which she had with her and the cashier said, We have envelopes. You can have an envelope, like everybody else, and make deposits like everybody else, and deposit everything in there, seal the envelope, and we will give you a receipt, and we will put it in the safe.” She then received an envelope from the cashier with defendant’s name and the location of its various offices stamped upon it together with a printed notice that This is a safety envelope ” and a printed direction in French , and English to “ seal carefully, and write your name where indicated on the other side.” As directed, she proceeded, in the presence of defendant’s officers, to place her jewelry and extra money in the envelope, then sealed the envelope, signed her name across the seal and delivered it to the cashier. Thereupon the cashier gave her a receipt numbered 4958, removed by him from a book of receipts supplied by defendant in which he retained the stub for office use. The receipt was printed in the French language, but not then translated for the plaintiff, in which it was stated that defendant had received from her the sealed envelope without liability or responsibility of any nature while in the charge of the company or of the Captain.” At the bottom of the envelope the cashier placed the number 4958, corresponding to the number on the receipt.

The ship was in port at Havana, Cuba, on February 13 and 14. Plaintiff procured the envelope containing her money and jewelry from the cashier during the afternoon of February 13 for use at a formal dinner party on shore that evening and returned to him her deposit receipt. On the morning of February 14, she went to the cashier’s desk and procured another safety envelope according to usual practice and, in the presence of the cashier, she placed her money and jewelry in the envelope, sealed the envelope, wrote her name across the seal and delivered it to the cashier. He thereupon put on the envelope the number 4958 and handed to her the receipt which she had surrendered to him on the previous afternoon. At about eight or eight-thirty o’clock on the evening of February 14, she went to the desk and asked for her envelope and exhibited her receipt to the cashier in charge. The cashier took the number of the receipt and went to the safe to look for the envelope and returned and told her it was not there. She promptly reported her loss to the purser and captain of the ship and presented her claim therefor. An extensive search was made by the purser and other officers of the ship and finally an empty envelope, torn apart, with contents gone, but with her name written on the back across the seal, was found in a wastebasket in the room containing the information desk and the safe. Whether it was the envelope which last contained her property was not shown. No explanation has ever been made by defendant of its failure to return to the plaintiff the property which it had received for safekeeping.

Under some circumstances, a carrier may limit its liability by provisions in the contract of passage as set forth in the passenger’s ticket (Steers v. Liverpool, N. Y. & P. S. S. Co., 57 N. Y. 1; Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151, 155; Murray v. Cunard S. S. Co., 235 N. Y. 162). A carrier might also limit its liability under some circumstances by a separate contract based upon a suitable consideration. The receipt for the property was issued to the plaintiff when she left it with the defendant for safekeeping. However, under the circumstances of this case, the defendant has failed to limit its liability for loss either by provisions in the ticket or by the receipt or by both combined. The wording of the receipt has been quoted above. Relating to liability and freedom from liability for loss, the ticket contains these pertinent provisions:

“ 3. Causes fob, Which the Gabbier is Not Liable * * * The Carrier shall be entitled to avail itself of all exemptions or limitations of liability contained in Title 46, ch. VIII, of the Code of Laws of the U. S. A.” (The Harter Act.)
“ 4. Regulations and Limitations of Carrier’s Liability with Respect to Personal Property.
“ (a) The term ‘ baggage ’ as used herein means only trunks, handbags, valises, satchels and bundles, containing such wearing apparel and personal effects as are necessary and appropriate to the purpose of the journey and to the passenger’s station in life.
“(b) The Carrier does not undertake to carry as baggage any merchandise, samples, furniture, household goods, tools of trade, property of others than the passenger, pictures, perishable goods, glassware, liquids, bric-a-brac, money, documents, valuables, or any of the articles listed in sec. 4281 of the Revised Statutes of the United States. Such articles must be shipped as commercial cargo under bills of lading. The passenger hereby warrants that no such articles are or will be contained in any receptacle or container presented by him as baggage hereunder, and, if any such articles are shipped by the passenger as baggage in breach of this warranty, no liability shall attach to the Carrier on account thereof as Carrier or bailee or in any other capacity, either for negligence or otherwise. *******
“(g) Each first-class passenger represents, and it is hereby agreed, that the total value of his baggage, as defined in section 4 (a) "of this contract, does not exceed $150, and that the total value of all other property taken with him on the voyage, and carried on his person or retained in his possession, does not exceed $100; each passenger of any class other than first represents, and it is hereby agreed, that the total value of his baggage, as defined in section 4 (a) of this contract, does not exceed $100; and that the total value of all other property taken with him on the voyage, and carried on his person or retained in his possession, does not exceed $75.00. The Carrier’s liability, if any (and whether or not excess baggage is carried and paid for) shall not exceed the above amount in the event of loss, damage or delay to any of the passenger’s property taken with him on the voyage, the fare for the voyage and the rate of excess baggage tariff being in part based upon the above valuation. Nevertheless, each passenger may, prior to embankment, deliver a declaration in writing, specifying a higher value, to the Carrier at 610 Fifth Avenue, New York, N. Y. U. S. A. or at 6 Rue Auber, Paris, France, or to the Carrier’s baggage master, and pay an additional amount of 1% of the excess of value thus specified over the said amount, for which a written receipt must be obtained, in which case the Carrier’s liability shall not exceed such specified value.
(h) A reasonable amount of space in a deposit box or safe on board, if the steamer is so equipped, will be allowed each passenger upon request, but, in consideration of the Carrier’s furnishing such deposit box or safe without extra cost to passengers, and inasmuch as no charge is made therefor, it is mutually agreed that the Carrier’s liability, if any, for loss of, or damage to, the deposit made therein by the passenger shall not be increased by reason of a deposit being made. In the event of declaration of excess value, as herein provided, the Carrier may require that valuables be placed in the custody of the Purser, but without assumption of any increased responsibility on the Carrier’s part.
(i) The Carrier does not assume any responsibility for unchecked baggage, nor for any articles which the passenger retains under his personal control, in his cabin or elsewhere.”

A reading and strict construction of the provisions of the ticket indicate that the property deposited with defendant was not ‘ baggage ’ ’ as defined by defendant, the maximum amount of the recoverable loss of which is fixed at $150,' nor was it other property taken with him on the voyage ” for which the limit of recovery for loss was fixed at $100, since it was neither carried on his person or retained in his possession.” Nor was it retained under his personal control, in his cabin or elsewhere.” On the contrary, the property was delivered to defendant and accepted by it for safekeeping and it was in its exclusive possession and under its exclusive control at the time the loss occurred. As to loss of such, the contract contains no limit of liability. The contract must be construed, so far as it purports to limit the carrier’s liability, to baggage or property taken by the carrier into its possession for the journey. As to other personal property of the passenger, though retained in the exclusive possession of the passenger, for his use during the voyage, the provisions neither have nor were intended by defendant to have any application (Holmes v. North German Lloyd S. S. Co., 184 N. Y. 280). If defendant had understood the provisions of the ticket otherwise, there would have been no occasion to exact from the passenger when she delivered the property into defendant’s exclusive possession for safekeeping an absolute release from liability from whatsoever cause arising.

Nevertheless, if the contract were to be liberally construed as urged by defendant, the theory that there was a limitation of $250 recovery still could not prevail. For the type of property in question and the use which was to be made of it, the attempted limitation is unavailable (Holmes v. North German Lloyd S. S. Co., supra). It limits the carrier’s liability to a fixed sum since no reasonable alternative was offered to a passenger who did not wish to be bound by the carrier’s stated exemption from liability and is consequently void (Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407; The Kensington, 183 U. S. 263). The clause permitting of a higher recovery when payment of one per cent is made of the excess value evidently relates only to property to be left in the possession of the carrier for the voyage. If its meaning is ambiguous, it must be so construed (Holmes v. North German Lloyd S. S. Co., supra). Though plaintiff had declared a higher value on her jewelry under section 4 (g) of the ticket, defendant would still not be liable for her loss under section 4 (b), which must be read and construed with subdivision (g), even though the loss was due to the negligence of defendant, unless the property was shipped under a bill of lading. If so shipped, defendant would still not be liable by virtue of the Federal statutes applicable to the carriage of goods by sea (U. S. Code, tit. 46, ch. 8, § 192; ch. 28, § 1304). Attempted complete absolution from all liability contained in the receipt was contrary to public policy and void (Straus & Co. v. Canadian Pacific Ry. Co., supra).

There is no doubt that plaintiff’s property was lawfully in the possession of defendant. Affirmatively and conclusively it appears from uncontradicted testimony and it has finally been found by the lower courts that the services rendered by the officers of the ship were not voluntary and outside of the scope of their duties. It appears above that the possession of the property by defendant was not that of a carrier under its contract of carriage since it had not checked the same as baggage nor had the property been entrusted to it for the journey. It was entrusted to the defendant only for the special purpose of aiding the passenger in safeguarding her property in accordance with regulations and rules established by the defendant itself. Its, possession, therefore, was that of a bailee and its obligation to the plaintiff in regard to her property is defined and measured by the law of bailments (Hasbrouck v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 363). As pointed out in the Hasbrouck case (pages 373, 374), “ Whether it was a bailee for hire in performing a service incidental to her carriage as a passenger with the obligation of ordinary care, or a gratuitous bailee with the obligation of slight" care, the result is the same. In either event, as we held in the case cited, some care was required, yet none was shown. The law required the defendant to return all the property intact, or to explain its loss in some satisfactory way, but- it did neither.” The undertaking to return the property to plaintiff on demand was necessarily a part of the contract under which the defendant received and retained the property in its possession for safekeeping. In Ouderkirk v. Central Nat. Bank (119 N. Y. 263, 267), it is said that in such a case, the burden of showing the circumstances of the loss rests upon the bailee, and, unless the evidence shows the exercise of due care by him according to the nature of the bailment, he will be held responsible for the breach of his contract to return the property bailed.” Though a gratuitous bailee only, failure to deliver the property to plaintiff on demand constituted gross negligence which amounted to a breach of its obligations and called for explanation (Dalton v. Hamilton Hotel Operating Co., 242 N. Y. 481, 488). Right of recovery for the loss “ rests on the presumption arising from delivery, demand and refusal, without affirmative proof of negligence in any respect ” (Hasbrouck v. N. Y. C. &.H. R. R. R. Co., supra, p. 376).

Upon the same proof an action for conversion would rest and the dismissal of that cause of action was erroneous. It does not follow, for that reason, that a new trial must he had. After motion for the • direction of a verdict upon the first cause of action, we are required to render such judgment as should have been rendered on the undisputed facts by the courts below.

The judgments appealed from should be modified by a direction that the plaintiff recover from the defendant the sum of $13,360, with interest from February 14, 1937, and by striking out the provision for the award of costs to the defendant in each judgment in the lower courts, and as so modified, affirmed, with costs to the plaintiff in all courts.

Lehman, Ch. J., Loughran and Desmond, JJ., concur with Lewis, J.; Rippey, J., dissents in opinion in which Finch and Conway, JJ., concur.

Judgment affirmed. (See 290 N. Y. 872.)


author: Finch, J. Conway, J.

text:
    The People of the State of New York, Respondent, v. Nathan Katz, Appellant.
    Argued January 21, 1943;
    decided April 22, 1943.

      Samuel Bader and Harry G. Anderson for appellant.

      Thomas Cradock Hughes, Acting District Attorney (Edward H. Levine of counsel), for respondent.
   Finch, J.

Defendant-appellant has been convicted of assault in the second degree.

Many of the essential facts are not in dispute, and the record is substantially as follows. On the evening in question Gunther, the complainant, had entered a bar and grill in search of a woman with whom he had an appointment. Not finding the woman present, Gunther left immediately. However, he noticed defendant at the bar but did have any conversation with him. As Gunther left, defendant followed and, going up to Gunther who was standing on the sidewalk near the curb conversing with two men, made a remark inaudible to Gunther and then grabbed the latter by the lapel of his coat. "When Gunther sought to remove the hand of defendant, the latter suddenly struck him two blows on the jaw breaking the jaw in three places, and requiring the wiring of the teeth that remained which necessitated treatment thirty-nine times, thus showing the infliction upon complainant, in the words of the statute, of grievous bodily harm.

Defendant did not take the stand but produced two witnesses. One of the witnesses, Cohen, said he was drinking at the bar with defendant and a man named Weiner, who was president of the corporation owning the bar and grill. Cohen testified that Gunther did not enter the barroom but that defendant went out and gently put his hand on Gunther’s shoulder and asked Gunther to come in, but instead Gunther turned and struck a blow at defendant. Thereupon the two men exchanged blows until separated by the companions with whom Gunther had been conversing. Weiner testified that he saw defendant leave the barroom and gently place his hand on the shoulder of Gunther. This witness testified that he then turned his head and saw no more until someone shouted “ Fight,” and the witness turned around to see defendant and Gunther fighting. The effect of the testimony for defendant would at the most have substantiated the claim by defendant that his assault on Gunther was justified as an act of self defense. The verdict of the jury necessarily rejects the testimony of these witnesses, and the defense of self defense, and accepts the testimony of Gunther which is amply sufficient to sustain the verdict.

The trial court instructed the jury in the main charge that, in order to constitute assault in the second degree, there must be a specific intent to inflict grievous bodily harm upon the part of the person committing the assault. The jury were told that it is not sufficient that there be merely an intent to injure even if grievous bodily harm results, but rather that it is essential that specific intent to inflict such harm must also be present.

The trial judge having so charged in the main charge in the morning without exception, we take up first the question whether, in the afternoon when the jury specifically asked the judge for a definition of second and third degree assault,” he committed error in mentioning only the difference in the seriousness of the injuries inflicted without again calling attention to the necessity of finding specific intent to inflict grievous bodily harm as a necessary element of assault in the second degree. In the course of the supplemental charge, the court said: “ * * * if you are satisfied beyond a reasonable doubt that the defendant committed the assault unjustifiably and the injuries are grievous bodily harm, then that would be assault in the second degree. If, however, the injury is a slight injury, not grievous bodily harm — a person may get a slap in the face — that is assault in the third degree because there is hardly any injury there; it may be a discoloration of the eye or a reddening of the face, but it is an assault. It is some force used against the person of another with the intent to do him some harm. If the harm is slight injury, then it is assault in the third degree, simple assault. If the harm done is not slight and not fatal, but grievous bodily harm, then it is assault in the second degree. You have heard the testimony of the doctors atid the other people who testified about the injuries which the complainant here is said to have sustained. If you are satisfied beyond a reasonable doubt that that is a grievous injury, that it is an injury constituting grievous bodily harm, then you may find the defendant guilty of assault in the second degree. If, however, the injury is not grievous bodily harm, but a slight injury, then you may find him guilty of assault in the third degree.”

The only mention of intent in this supplementary charge is in reference to the intent in assault generally namely, “ a wrongful act, wilfully done, with force, against a person of another, to do him bodily injury.” It cannot be said that this supplemental charge includes specific intent to inflict grievous bodily harm as part of the definition of assault in the second degree unless we read into the definition given in the afternoon that part of the definition given in the morning, that such specific intent is necessary. The failure to repeat specific intent to do grievous bodily harm as an element of assault in the second degree was heightened when counsel for the defendant objected to the instructions given in the supplemental charge upon the ground that these instructions “ in no way took into account the question as to whether or not the defendant intended any serious bodily harm, in the definition of assault in the second degree.” Because of this failure of the court to reiterate the necessity of finding specific intent to inflict grievous bodily harm as an element of assault in the second degree, we cannot say that the jury did not convict this defendant upon a finding alone of grievous bodily harm.

Outside of a-narrow class of exceptions, punishment is meted' out by the law of crimes for a specific unlawful intent. The' words in subdivision three of the statute defining assault in the second degree reasonably imply the necessity of a specific intent. The words of the statute are “ wilfully and wrongfully wounds or inflicts grievous bodily harm upon another; * * (Penal Law, § 242). In other words, as the. statute reads, the requirement as to intent is co-extensive with the act prohibited. If the legislative intent were otherwise the statute would read “ a person who with intent to injure inflicts grievous bodily harm.” Subdivision four of the same section uses the same phrase wilfully and wrongfully ” in the same setting as it appears in subdivision three, and this same phrase so appearing in subdivision four has been construed to require a specific intent. (People v. Rytel, 284 N. Y. 242, 245; People v. Osinski, 281 N. Y. 129, 131.) In addition, assault in the second degree is a felony (Penal Law, § 243; People v. Rytel, supra, at p. 246), whereas simple assault is only a misdemeanor. (Penal Law, § 245; People ex rel. Devoe v. Kelly, 97 N. Y. 212.) If the contention is sustained that specific intent is not required to constitute an assault under subdivision three of section 242, then the unusual result would follow that an accused might be convicted of a felony although he had no felonious intent. Moreover, the distinction carried into the statute between second and third degree assault would seem to follow from the common law distinction between aggravated and simple assault. At common law all assaults and batteries were classified as simple assaults and, therefore, misdemeanors. (Commonwealth v. Barlow, 4 Mass. 439; Commonwealth v. Roby, 12 Pick. 496.) To constitute an aggravated assault, however, a specific felonious intent was required and such aggravated assaults were punished more severely than simple assaults. (Clark & Marshall on Crimes [3d ed.] pp. 249, 250.) Statutes have been enacted in many states carrying out in general the common-law distinction between aggravated and simple assaults. (Clark & Marshall, supra; 4 Am. Jur., p. 142; Assault and Battery, § 26.) Thus in this State the revised statutes classified certain assaults as felonies where a felonious intent was present. (Foster v. People, 50 N. Y. 598, 603.) The same distinction seems to have been carried out by the draftsmen of the Penal Law, by treating aggravated assaults under sections 240 and 242, and simple assaults under section 244. In consequence of this historic background, a specific felonious intent is required under section 242, subdivision three, of the Penal Law. The failure of the trial court, therefore, to reiterate in the supplementary charge the necessity of the specific intent to inflict grievous bodily harm as an element of the crime charged, constitutes reversible error requiring a new trial.

The judgments should be reversed and a new trial ordered.

Conway, J.

(dissenting). For a defendant to be guilty of any degree of assault it is, of course, necessary that he intend to injure the one assaulted. If it were necessary for the court, to charge that in order to convict the defendant of assault in the second degree the People were required to prove a specific intent to inflict grievous bodily harm upon the one assaulted, we would agree that the court erred in its charge to the jurors when they returned for instructions. We do not think it was necessary so to charge. The statute (Penal Law, § 242) reads, insofar as important for our discussion here:

“ A person who, under circumstances not amounting to the crime specified in section two hundred and forty, *******
3. Wilfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon; or,
“ 4. Wilfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm; or, * * *.”

This is a matter of statutory construction and the statute alone defines the crime. There are five subdivisions to section 242. In each of three of the subdivisions, other than subdivisions three and four, a specific intent is required. Two of those three begin with the words “ With intent.” The other subdivision, the fifth, uses those same two words as the third and fourth words in the sentence which comprises it. We think that the words used by the Legislature were carefully chosen in order to express exactly what was intended. No specific intent was required in subdivisions three and four because subdivision three was intended to cover an act of assault by which “ grievous bodily harm upon another, either with or without a weapon ” was accomplished, whether or not specifically intended while subdivision four was intended to cover an.act of assault committed against ‘ ‘ another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm ’ ’ whether or not grievous bodily harm resulted. In other words under subdivision three the determinant was the grievous injury; under subdivision four, the determinant was the use of a weapon, or other instrument or thing likely to produce grievous bodily harm.

Statutes making the aggravated character of the assault to depend upon the character of the injury inflicted are found in many states. See 6 C. J. S. Assault and Battery, section 79. Thus in State v. Damuth (135 Minn. 76 at 79, 80) it was said:

" It was not necessary to a conviction for assault in the second degree that the defendant in striking the blow should have the specific intent to put out Nagel’s eye. It is sufficient, under the language of the statute, if he wilfully and wrongfully struck the blow. ‘ It would be a mistake to suppose that in order that an act may amount to a crime the offender must intend to commit the crime to which his act amounts, but he must in all cases intend to do the act which constitutes the crime.’ 2 Stephens, Hist. Grim. Law, 112, quoted in State v. Quackenbush, 98 Minn. 515, 521, 108 N. W. 953.
“ So it was sufficient to a conviction that Lind Damuth wrongfully intended to strike the blow which blinded Nagel, although he had no intent to put out his eye. The word ‘ wilfully ’ means ‘ designedly ’ or intentionally.’ State v. Lehman, 131 Minn. 427, 155 N. W. 399. If the act was intentionally done, the defendant could be convicted of assault in the second degree, though he did not intend all the consequences of the act. If Damuth was the aggressor, the act was wilful and wrongful; if he was not the aggressor, he was, under the evidence and the law as laid down by the court, guilty if [sic] no crime.
“It is argued that the affray in which Nagel was injured was only a fist fight, that defendant did not intend to inflict grievous bodily harm, and that consequently he was guilty of assault in the third degree only.
But it cannot be conceded that grievous bodily harm can be inflicted only by means of a weapon. Men have been killed with the hare hands or by blows from the naked fist. Grievous bodily harm may result from an assault although the assailant be unarmed. Recognizing this, the statute (G. S. 1913, § 8632, subd. 3), punishes as for assault in the second degree, one who wilfully and wrongfully inflicts bodily harm, even without a weapon. The grievous bodily harm, resulting from the assault and battery in this case, justified the instruction that the jury might convict of assault in the second degree. The evidence also justified the court in charging the jury that they could convict defendant of the offense charged, or of assault in the second degree, or find him not guilty. State v. Ronk, 91 Minn. 419, 98 N. W. 334; State v. Pontoniec, supra.”

It seems to us that the Legislature intended that one who wounds or inflicts grievous bodily harm upon another must answer for the result of his act. He is the one who must run the risk. He may avoid that risk by not committing the assault, if he commit the assault it must in law be said that among the consequences of his criminal act which were within his contemplation and for which he is to be held responsible is that such grievous bodily harm may be wrought by him that he will be a felon before the law. This is nothing new in the law. The cases, beginning with one in the reign of Charles II, on the consequences which a guilty person must be deemed to have had in contemplation when he acted, in cases resulting in death, will be found collected in People v. Kane (Willard Bartlett, Ch. J.), (213 N. Y. 260, 271-277).

The original charge of the court was more favorable to the defendant than was required. The instructions given to the jurors upon their later request were correct.

The judgment should be affirmed.

Lehman, Ch. J., Loughran, Rippey and Lewis, JJ., concur with Finch, J.; Conway, J., dissents in opinion in which Desmond, J., concurs.

Judgments reversed, etc.