text:
    Solicitor for the Affairs of His Majesty’s Treasury, Appellant, v. Bankers Trust Company of New York, Defendant. Robert W. Maitland-Tennent, Applicant-Respondent.
    Argued April 16, 1952;
    decided July 15, 1952.

      Howard T. Milman for appellant.
    I. Respondent does not have an interest in the fund sufficient to permit mandatory intervention. (United States v. Columbia Gas & Elec. Corp., 27 F. Supp. 116; Missouri-Kansas Pipe Line Co. v. United States, 108 F. 2d 614; Kaufman v. Société Internationale, 188 F. 2d 1017; Radford Iron Co. v. Appalachian Elec. Power Co., 62 F. 2d 940; Lombard Investment Co. v. Seaboard Mfg. Co., 74 F. 325; Harrington Bros. v. City of New York, 35 F. 2d 1009; Rubin v. Irving Trust Co., 105 N. Y. S. 2d 140; Nemeroff v. National City Bank of N. Y., 262 App. Div. 145; Lennox v. Brady, 101 N. Y. S. 2d 22; Metallo-Chemical Corp. v. Banque Transatlantique S. A., 188 Misc. 596.) II. The motion to intervene is not timely. III. The barring of Mrs. Maitland-Tennent’s rights also bars her creditors.

      David Paine for respondent.
    I. Respondent’s judgment is based on publication service and is payable only out of the funds attached. (Civ. Prac. Act, § 232, subd. 3; § 520; Frost v. Mott, 34 N. Y. 253; Fielmann v. Brunner, 2 Hun 354; Rubin v. Irving Trust Co., 105 N. Y. S. 2d 140.) II. A suit by the Sheriff (under Civ. Prac. Act, § 922), as suggested by Special Term, would be futile. (Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145; India Rubber Co. v. Katz, 65 App. Div. 349; Wehle v. Conner, 83 N. Y. 231.) III. The case cited by Special Term (Harrington Bros. v. City of New York, 35 F. 2d 1009) was decided in 1929, before the adoption of the present Federal rule on which section 193-b is modeled. IV. The Statute of Limitations is personal to defendant and those in privity with defendant. (Perry v. Williams, 40 Misc. 57.)
   Lewis, J.

We are to determine whether the record before us serves to qualify Robert William Maitland-Tennent — to whom reference will be made as the applicant — to intervene in this action pursuant to clause (d) of subdivision 1, section 193-b of the Civil Practice Act. That statute, insofar as material to our inquiry, provides: “ § 193-b. Intervention. 1. Upon timely application any person shall be permitted to intervene in an action, including, but not limited to, an action for a sum of money only: * * * (d) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of, or subject to the control of or disposition by, the court or an officer thereof.”

From affidavits and a verified proposed pleading of record, filed in support of and in opposition to thé present motion by the applicant to intervene herein, it appears that the applicant — a naturalized citizen residing in California — has instituted an action against his mother, Mrs. Margaret Louisa Maitland-Tennent, who is a resident of Scotland. The action is for damages alleged to have resulted from the failure by the applicant’s mother to pay to him installments claimed to be due under a written agreement made in 1914 between mother and son “ in settlement of certain disagreements arising under a disputed will ’ ’. From the affidavits and pleadings mentioned above it appears that Mrs. Maitland-Tennent has no property within the United States except funds credited to her accounts in two banks in the city of New York of which one is Bankers Trust Company, the defendant in the present action. The funds formerly in that account have been paid into court in circumstances presently to be described and are now on deposit with the treasurer of the city of New York pursuant to a court order in pending litigation which arose from the following facts:

In 1947, the British Government enacted the Exchange Control Act (10 & 11 Geo. 6, ch. 14) which by its provisions required Mrs. Maitland-Tennent, a British subject, to exchange for pounds sterling her dollar accounts in hanks in the United States. Upon her refusal to do so, and pursuant to British law then applicable, His Majesty’s Treasury vested the account and thereafter assigned it to the Solicitor for the Affairs of His Majesty’s Treasury who instituted the present action against Bankers Trust Company to collect the balance in the account thus vested. The defendant thereupon applied at the Supreme Court, Special Term, for an order permitting it to give notice pursuant to section 51-a of the Civil Practice Act to Mrs. Maitland-Tennent as an adverse claimant to the account. The plaintiff opposed that application and made a cross motion to require the defendant to deposit in court the balance then standing to the credit of its depositor’s account. Following the granting of the defendant’s motion and the plaintiff’s cross motion the defendant paid into court a sum in excess of $117,000 which was the amount in Mrs. Maitland-Tennent’s deposit account. On March 24,1950, Special Term granted an order permitting the defendant to serve on Mrs. Maitland-Tennent by registered mail a notice of pendency of the present action, which notice — in the form prescribed by section 51-a id.— was served.

Thereafter the applicant obtained a warrant of attachment in the suit instituted by him against his mother based upon a complaint and affidavit setting forth facts upon which the alleged indebtedness is based. Apparently, jurisdiction was not obtained by a levy of the warrant of attachment on property of Mrs. Maitland-Tennent, the reason being that the treasurer of the city of New York took the position that money deposited with him by court order to the credit of the present action could not be diverted to any other purpose, and accordingly he turned over no funds to the sheriff on the attachment. Thereupon (on October 13, 1950) a motion by the applicant to intervene in the present action was denied upon the ground that “ The applicant does not possess a legal or equitable interest in the fund.” (198 Misc. 751, 753.) No appeal was taken from that decision. (199 Misc. 498, 499.)

Subsequently the applicant entered the judgment against his mother which has not been paid and which he now seeks to have paid out of the funds in the hands of the city treasurer — a default judgment based upon service of a summons and complaint by publication. Thereupon, as an alleged judgment creditor of his mother, the applicant again moved at Special Term for an order permitting him to intervene in the present action, or in the alternative to direct the city treasurer of the city of New York to satisfy a judgment obtained by the applicant out of moneys held by the city treasurer to the credit of the present action. In denying that motion, by order dated March 27,1951, the Justice at Special Term wrote — The only change in the situation [since the denial on October 13, 1950, of applicant’s first motion to intervene] is that the applicant has in the meantime recovered a default judgment. If, however, the attachment did not give the applicant an interest in the fund entitling him to intervene — and [the Justice at Special Term] has already held it did not — he has not acquired such interest by the subsequent judgment (Harrington Bros. v. City of New York, 35 F. 2d 1009).” (199 Misc. 498, 499.)

At the Appellate Division, where the order entered at Special Term was reversed on the law, one Justice dissenting, and the motion for leave to intervene was granted, permission to appeal to this court was granted and the following questions were certified:

“ 1. Did the Special Term err in denying applicant’s motion to intervene in this action?

1 ‘ 2. Did Special Term err in holding that applicant was not ‘ so situated as to be adversely affected by a distribution or other disposition of property in the custody of * * * the court * * * ’ ? ”

It is the applicant’s position, alleged in his proposed complaint, that the funds paid into court by the defendant pursuant to court order and now deposited with the city treasurer of the city of New York to the credit of this action, are property of his debtor, Mrs. Maitland-Tennent. His demand is that the judgment he claims to have secured against his debtor be paid out of those funds.

If, as the .applicant claims, he is a creditor of Mrs. Maitland-Tennent, his right to payment of her debt to him from funds formerly deposited to her credit with the defendant Bankers Trust Company and subsequently paid into court, depends upon what right she has in those funds. The question is thus posed: — What right, if any, has Mrs. Maitland-Tennent to the funds in suit!

The statutory notice served by the defendant upon Mrs. Maitland-Tennent informed her that her right to commence an action to enforce her claim to the funds which the plaintiff seeks to recover in this action, or to intervene herein, was limited by section 51-a to one year and ten days from the date of the court order authorizing service of the notice. At the termination of that period of limitation she had not taken action by suit, nor had she intervened herein. By her failure so to do she has forfeited her right in the State of New York to enforce any claim she had to the funds which the plaintiff in the present action seeks to recover. The applicant’s right, if any, to be paid from the. funds in suit derives from Mrs. Maitland-Tennent — allegedly his judgment debtor — who is not a party to the present action. She is no more than an erstwhile adverse claimant (§ 51-a, subd. 5) who, having failed — within the period of limitation fixed by the statutory notice served upon her — to intervene in the present action or to commence an action to enforce her claim, is barred in this State from asserting a claim to such funds.

In those circumstances we cannot say as a matter of law that the applicant “ * * * is so situated as to be adversely affected by a distribution or other disposition of property in the custody of * * * the court * * (Civ. Prac. Act, § 193-b, subd. 1, cl. [d], supra; and see Radford Iron Co. v. Appalachian Elec. Power Co., 62 F. 2d 940, 942; Harrington Bros. v. City of New York, 35 F. 2d 1009.)

The order should be reversed and the applicant’s motion for leave to intervene denied, with costs in this court and in the Appellate Division. Each of the two questions certified to us is answered in the negative.

Loughran, Ch. J., Desmond, Dye, Fuld and Froessel, JJ., concur; Conway, J., not sitting.

Order reversed, etc.

       See Solicitor for Affairs of His Majesty’s Treasury v. Bankers Trust Co. (304 N. Y. 282), decided herewith.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Harry Rankin, Appellant, against Herman J. Ruthazer, as Warden of City Prison, Borough of Manhattan, City of New York, Respondent.
    Argued June 5, 1952;
    decided July 15, 1952.

      Joseph Lonardo for appellant.
    I. If the sentence had been fully served when the Michigan board made the “ decision ” to “ retake ” relator, he was no longer on “ parole ”, and the board was functus officio, shorn of power to make the “ decision ” altogether. A construction that the compact precludes inquiry in this forum whether, under Michigan law, the balance of the sentence had been served, abrogates habeas corpus, or impairs its efficiency; and also denies due process and equal protection. (U. S. Const., art. I, § 9; 14th Amendt.; N. Y. Const., art. I, §§ 4, 6, 11; People ex rel. Hutchings v. Mallon, 218 App. Div. 461, 245 N. Y. 521; State ex rel. Treseder v. Remann, 78 A. L. R. 412; Ex Parte Tenner, 20 Cal. 2d 670; State ex rel. Sanders v. Robinson, 190 Tenn. 101; People ex rel. Newton v. Twombly, 228 N. Y. 33; People ex rel. Higley v. Millspaw, 281 N. Y. 441; People ex rel. Corkran v. Hyatt, 172 N. Y. 176, 188 U. S. 691; Innes v. Tobin, 240 U. S. 127.) II. Basically, the limit of a parole board’s power coincides with the expiration of the maximum term once it has been served; and where a board attempts recapture beyond that, the court computes the time owed, if any, and in a proper case declares the reimprisonment illegal. (Anderson v. Corall, 263 U. S. 193; People ex rel. Ingenito v. Warden & Agent of Auburn Prison, 267 App. Div. 295, 293 N. Y. 803; People ex rel. Dote v. Martin, 294 N. Y. 330.) III. The provisions of the habeas corpus act are not limited to a detention under process of this State’s tribunals, nor do they differentiate between a formal or informal extradition. That being so, they manifestly apply to any person in custody not specifically excluded, as the traditional scope of the writ demands — a remedy that except in named national emergencies is placed “ beyond the pale of legislative discretion ”. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559; Frank v. Mangum, 237 U. S. 309; Hoff v. State of New York, 279 N. Y. 490; People ex rel. Corkran v. Hyatt, 172 N. Y. 176; People ex rel. Carollo v. Brophy, 294 N. Y. 540; People ex rel. Scharff v. Frost, 198 N. Y. 110.) IV. The material allegations of the petition, standing undenied, are deemed true, for present purposes. (Matter of Hines v. State Bd. of Parole, 293 N. Y. 254; People ex rel. Dote v. Martin, 269 App. Div. 59, 294 N. Y. 330.)

      Frank S. Hogan, District Attorney (Chester E. Kleinberg and Richard G. Denser of counsel), for respondent.
    The writ of habeas corpus was properly dismissed. (State ex rel. Nagy v. Alvis, 87 Ohio App. 251, 152 Ohio St. 515; Gulley v. Apple, 213 Ark. 350; Pierce v. Smith, 31 Wn. [2d] 52; Ex Parte Tenner, 20 Cal. 2d 670; People ex rel. Marshall v. Moore, 167 App. Div. 479, 217 N. Y. 632; Biddinger v. Commissioner of Police, 245 U. S. 128.)
   Desmond, J.

New York State has outstanding (see list as of February 6, 1947, in supplement to McKinney’s Cons. Laws of N. Y., Book 10-B, Correction Law) Interstate Parole Compacts ” with thirty-eight of the other States of the Union. Michigan since 1937 and New York since 1944 have been signatory to the compact, pursuant to section 224 of our Correction Law, the pertinent part of which is as follows:

“ § 224. Compacts with other states for out-of-state parolee supervision.

1. The governor is hereby authorized and directed to enter into a compact on behalf of the state of New York with any state of the United States legally joining therein in the form substantially as follows':

A COMPACT

“ Entered into by and among the contracting states, signatories hereto, with the consent of the Congress of the United States of America, granted by an act entitled ‘ An act granting the consent of Congress to any two or more states to enter into agreements or compacts for co-operative effort and mutual assistance in the prevention of crime and for other purposes.’

‘ ‘ The contracting states solemnly agree:

“ (1) That it shall be competent for the duly constituted judicial and administrative authorities of a state party to this compact (herein called ‘ sending state ’) to permit any person convicted of an offense within such state and placed on probation or released on parole to reside in any other state party to this compact (herein called ‘ receiving state ’) while on probation or parole, if

“ (a) Such person is in fact a resident of or has his family residing within the receiving state and can obtain employment there;

“ (b) Though not a resident of the receiving state and not having his family residing there, the receiving state consents to such person being sent there.

“ Before granting such permission, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person.

‘‘ A resident of the receiving state, within the meaning of this section, is one who has been an actual inhabitant of such state continuously for more than one year prior to his coming to the sending state and has not resided within the sending state more than six continuous months immediately preceding the commission of the offense for which he has been convicted.

“ (2) That each receiving state will assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of those duties will lie governed by the same standards that prevail for its own probationers and parolees.

“ (3) That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state; provided, however, that if at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense.

“ (4) That the duly accredited officers of the sending state will be permitted to transport prisoners being retaken through any and all states parties to this compact, without interference. ’ ’

The following facts are undisputed in this habeas corpus proceeding. In August, 1939, this relator was convicted, in Michigan, of the crime of robbery and was sentenced to a term of from ten to thirty years. At the time of that conviction he was under indictment in New York County for the crime of murder in the first degree. In December, 1945, he was paroled from prison in Michigan for delivery to the New York authorities on that murder charge. The Michigan Parole Board order contained a proviso or condition, of which relator was informed, that if the New York murder charge should be dropped, the New York authorities were to notify the Michigan authorities so that a parole, in New York, on the Michigan sentence could be arranged, pursuant to the <£ Interstate Compact ” {supra). The murder indictment was dismissed in New York in May, 1947, but, responsive to a request from the Michigan authorities, the New York authorities detained relator. In August, 1947, there was granted to relator by the Michigan parole authorities a parole by the terms of which he was allowed to remain at liberty, not in Michigan, but in New York. Among the conditions of that parole, agreed to by relator, were these: that relator was to be employed by a named New York company and to be supervised by a named New York parole department employee. That Michigan parole, by its terms, was not to terminate before May 27, 1951, but it provided, as do all such paroles, that it was subject to the condition that relator would keep and observe all lawful parole provisions imposed by the Michigan Parole Board.

In March, 1950, the State of Michigan issued a warrant for the arrest of the appellant as a parole violator, declaring him ££ delinquent ” as of February, 1950. In other words, Michigan, asserting that relator had violated his parole in February of 1950, issued a warrant demanding that he be arrested in New York and returned to Michigan, pursuant to subdivision (3) of the compact in section 224 of the Correction Law above quoted. Eelator then sued out this writ of habeas corpus, and it came on for a hearing at Special Term. Eelator now argues, among other things, that he has been denied his right to habeas corpus, but it is clear from these papers that a writ of habeas corpus was issued to him and that he had a hearing thereon, at which he was represented by counsel, and the whole situation explored. The only real dispute was as to what issues could be tried out on the hearing of that writ.

We point to the second sentence of subdivision (3) of the compact in section 224 above quoted: 11 For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken.” At the Special Term hearing in this case, those two facts were expressly conceded by relator. That was really the end of the case, since at that point relator had had his full habeas corpus rights.

Relator, however, insisted at the hearing and still insists, that under the law of Michigan appropriate to the case, his full sentence in Michigan had, for all purposes, expired at the end of 1949, about two months prior to the alleged delinquency date in February, 1950. Special Term ruled that question was one to be decided in Michigan and not in New York.

Appellant’s first point is that under the Uniform Criminal Extradition Act (an entirely different statute) which is in effect in Michigan as well as in New York (see Mich. Stat. Ann., § 28.1265, and our Criminal Code, § 829 et seq.) ', a fugitive from justice is entitled to a writ of habeas corpus. But that assertion does not help us decide this case, since this relator has been heard on the return of a habeas corpus writ.

Under the Uniform Criminal Extradition statute, when extradition is sought on the ground that a person accused of crime in another State is here as a fugitive from justice, it need only be shown that the person detained is the same person sought, and that he was in the demanding State at the time of the crime. Similarly, under the uniform “ Interstate Parole Compact ” law (supra), when the return to the demanding State is sought of an alleged parole violator, it need only be shown that he is the same person described in the papers, and that the officers from the demanding State are authorized persons. Those facts were conceded here. Relator argues that the procedure followed here violates section 9 of article I of the Federal Constitution prohibiting the suspension of the writ of habeas corpus, and violates, also, the Fourteenth Amendment of that Constitution as to due process and equal protection of the laws, and, further, that there was here violated the habeas corpus, due process and equal protection of law guaranties found in article I of our State Constitution. We find no such violation.

Relator ’s main complaint is that the question as to whether his parole time was expired, under the facts and the Michigan law, was not tried out in this proceeding. ■ But the language and purpose of this uniform Interstate Parole Compact ” law does not permit such an inquiry, and any assumption of power in the ‘1 receiving state ’ ’ to decide such an issue would go far toward defeating the beneficent purposes of this, statute-: that is, to permit one sentenced and paroled in one State to serve out his parole in another State where he will be surrounded by home influences and where he can get a job. The only pertinent decision found by counsel is People ex rel. Nagy v. Alvis (152 Ohio St. 515, 519), where Ohio was the receiving state ” of a New York parolee; various questions were argued in the lower courts of Ohio, but the Supreme Court of Ohio held “ ‘ that the contention of the petitioner that he is not a parole violator is such as must be decided by the state of New York, and is not subject to review in Ohio ’ ”. So says the uniform statute as we read it, and so we hold here.

The order shpuld be affirmed.

Loughran, Ch. J., Lewis, Conway, Dye, Fuld and Froessel, JJ., concur.

Order affirmed.


author: Per Curiam.

text:
    Royal China, Inc., Appellant, v. Regal China Corporation, Respondent.
    Argued June 4, 1952;
    decided July 15, 1952.

      J onas J. Shapiro and J anet Perlman for appellant.
    I. Where, as here, there is no forum other than the courts of this State where plaintiff can obtain redress, it was error to dismiss the complaint for “ lack of convenience.” (Bata v. Bata, 304 N. Y. 51; Pennoyer v. Neff, 95 U. S. 714; Latham v. Father Divine, 299 N. Y. 22; Dyer v. Broadway Central Bank, 252 N. Y. 430; Weinert v. Kinkel, 296 N. Y. 151; Keene v. Chambers, 271 N. Y. 326; Swinton v. Bush & Co., 199 Misc. 321, 278 App. Div. 754.) II. The question whether a complaint should be dismissed for convenience is not properly raised by a motion lo dismiss for insufficiency. (Yager v. Yager, 214 App. Div. 671.) III. The complaint sufficiently states a cause of action. (Rosenwasser Bros. v. Frank, 206 App. Div. 614; Nowy Swiat Pub. Co. v. Misiewicz, 246 N. Y. 58; Town of Springport v. Teutonia Sav. Bank, 75 N. Y. 397; Western R. R. Co. v. Bayne, 75 N. Y. 1; Louisville &c. R’y Co. v. Louisville Trust Co., 174 U. S. 552.) IV. The charter and by-law provisions giving to plaintiff corporation pre-emption and lien rights are valid under the law of Ohio and not contrary to the public policy of this State. (South

      worth v. Morgan, 205 N. Y. 293; Williams v. National Pump Corp., 46 Ohio App. 427, 126 Ohio St. 457; Nicholson v. Franklin Brewing Co., 82 Ohio St. 94; Hassel v. Pohle, 214 App. Div. 654; Moses v. Soule, 63 Misc. 203, 136 App. Div. 904; Pomerance v. Pomerance, 301 N. Y. 254; Matter of Starbuck, 251 N. Y. 439; Leggett v. Bank of Sing Sing, 24 N. Y. 283; Garzo v. Maid of Mist Steamboat Co., 303 N. Y. 516; Davison v. Parke, Austin & Lipscomb, 285 N. Y. 500.)

      Isidor J. Kresel, Harold I. Meyer son and Irving L. Weinberger for respondent.
    I. The Appellate Division’s determination to decline jurisdiction constituted a proper exercise of discretion. Inconvenience was not the sole ground of dismissal. (Langfelder v. Universal Laboratories, 293 N. Y. 200; Bata v. Bata, 304 N. Y. 51.) II. The amended by-laws are invalid because they create an unlawful restriction on alienation. (Nicholson v. Franklin Brewing Co., 82 Ohio St. 94; Brown v. Britton, 41 App. Div. 57; Bloomingdale v. Bloomingdale, 107 Misc. 646.) III. The amendments to the certificate are ineffective as to issued shares and cannot bind a dissenting stockholder. (Davison v. Parke, Austin & Lipscomb, 285 N. Y. 500; Harbine v. Dayton Malleable Iron Co., 61 Ohio App. 1; Breslav v. New York & Queens Elec. Light & Power Co., 249 App. Div. 181, 273 N. Y. 593.) IV. The amendments to the by-laws are ineffective as to issued shares in the hands of a dissenting stockholder because they deprive him of his vested rights. (Garzo v. Maid of Mist Steamboat Co., 303 N. Y. 516; Davison v. Parke, Austin & Lipscomb, 285 N. Y. 500; Cowles v. Cowles Realty Co., 201 App. Div. 460; Johnson v. Lamprecht, 133 Ohio St. 567; Geiger v. American Seeding Mach. Co., 124 Ohio St. 222; Williams v. National Pump Corp., 46 Ohio App. 427; Kent v. Quicksilver Mining Co., 78 N. Y. 159; Kinnan v. Sullivan Co. Club, 26 App. Div. 213; Bechtold v. Coleman Realty Co., 79 A. 2d 661 [Pa.].) V. Plaintiff has no legal rights to enforce which entitle it to injunctive relief; and, in addition, plaintiff has been provided an adequate remedy by the Ohio statute. (Long Park v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174.)
   Per Curiam.

Plaintiff, an Ohio corporation, by amendments to its charter and by-laws, created in its favor a prior right of purchase of, and a lien against, shares of its stock outstanding and in the hands of stockholders. A resolution of its board of directors, adopted in accordance with the corporate charter and by-laws and pursuant to Ohio law, directed all stockholders to surrender their certificates of stock in exchange for new certificates bearing legends referring to the purchase and lien rights. Defendant, a New York corporation and a stockholder of plaintiff, having failed to comply with that resolution, plaintiff commenced this action to compel it to submit its certificates for the appropriate indorsements. Defendant, challenging the validity of the by-law amendment, made a motion, under rule 106" of the Rules of Civil Practice, to dismiss the complaint for insufficiency. The Appellate Division, reversing the court at Special Term, dismissed the complaint, but solely upon the ground that the issue of validity should more appropriately be determined by the courts of Ohio.

Addressing itself to the disposition made below, plaintiff asserts, first, that defendant is not amenable to service of process in Ohio and, unless it appears voluntarily in that state, cannot be sued there and, second, that the transfer meanwhile of the stock certificates held by defendant to a third person would render the charter and by-law amendments ineffectual against the transferee and would defeat or impair plaintiff’s rights. Defendant, although it has indicated that it would not appear voluntarily in Ohio or accept the jurisdiction of its courts even if plaintiff were to institute proceedings in that state, still insists that the validity or invalidity of the amendments in question should be decided by the Ohio courts.

While a court may on its own motion decline jurisdiction in a proper case upon the ground of forum non conveniens or upon the ground that the determination of the rights of the litigants involves the regulation and management of the internal affairs of a foreign corporation (see Weiss v. Routh, 149 F. 2d 193; cf. Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, 324; Massachusetts Nat. Bank v. Shinn, 163 N. Y. 360, 363), we do not regard the present as such a case. Quite apart from the fact that the internal affairs rule is designed primarily for the protection of the foreign corporation, rendering dubious its availability to a resident defendant as a defense to a suit brought by the foreign corporation (see Beard v. Beard, 66 Ore. 512; 17 Fletcher’s Cyclopedia Corporations [Perm, ed.], § 8427, p. 382; cf. Langfelder v. Universal Laboratories, 293 N. Y. 200; Travis v. Knox Terpezone Co., 215 N. Y. 259, 264), it would, under the circumstances here present, be unfair and unjust to close our courts to plaintiff and to relegate it to a forum wherein defendant cannot be served with process.

In our view, therefore, the courts of this state should not decline jurisdiction. We do not at this time consider the validity of the charter and by-law amendments relating to plaintiff’s purchase and lien rights, since the trial court may, in the exercise of its discretion, properly conclude, without passing upon their validity, that the indorsement of the stock certificates held by defendant are essential to preserve and protect any rights that may have accrued to plaintiff from those amendments. As indicated, the complaint, at least to the extent that it seeks a judgment requiring indorsements on defendant’s stock certificates, is sufficient; accordingly, the motion to dismiss the complaint is denied, without prejudice, however, to the right of defendant to contest the validity of the amendments in the courts of Ohio, or in such other manner, consistent with the ends of justice, as the trial court, sitting in equity, may find appropriate.

The judgment of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the motion to dismiss the complaint denied.

Loughban, Ch. J., Leavis, Conavay, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgment reversed, etc.


author: Cowway, J.

text:
    Charles McFall, Respondent, v. Compagnie Maritime Belge (Lloyd Royal) S. A. et al., Appellants, et al., Defendants. Compagnie Maritime Belge (Lloyd Royal) S. A., Defendant and Third-Party Plaintiff-Appellant, et al., Defendants and Third-Party Plaintiffs, v. Bunge Corporation, Third-Party Defendant-Respondent. Bunge Corporation, Third-Party Defendant and Third-Party Plaintiff, v. Dow Chemical Company, Third-Party Defendant. Dow Chemical Company, Third-Party Plaintiff-Appellant, v. Transoceanic Terminal Corporation, Third-Party Defendant-Respondent. Compagnie Maritime Belge (Lloyd Royal) S. A., Defendant and Third-Party Plaintiff-Appellant, et al., Defendants and Third-Party Plaintiffs, v. Transoceanic Terminal Corporation, Third-Party Defendant-Respondent. Compagnie Maritime Belge (Lloyd Royal) S. A., Defendant and Third-Party Plaintiff-Appellant, et al., Defendants and Third-Party Plaintiffs, v. Dow Chemical Company, Third-Party Defendant-Respondent.
    Argued March 11, 1952;
    decided July 15, 1952.

      Barent Ten Eyck for Compagnie Maritime Belge (Lloyd Boyal) S. A., defendant-appellant and third-party plaintiff-appellant.
    I. Plaintiff’s verdict against Compagnie was contrary to the evidence, because Compagnie was not itself actively negligent and no finding of active negligence on the part of Dow or Transoceanic (supportable in the evidence) was imputable to Compagnie. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; Van Leet v. Kilmer, 252 N. Y. 454; Riley v. Agwilines, Inc., 296 N. Y. 402.) II. If plaintiff’s recovery against Compagnie was supportable in the evidence it was only because active negligence on the part of Dow or Transoceanic, or both, supportable in the evidence, was found to be imputable to Compagnie, Compagnie itself being only passively negligent; and, consequently, Compagnie is entitled to recover over against one or both of those third-party defendants, depending upon the supportability in the evidence of a finding that active negligence on the part of either or both of them proximately caused plaintiff’s injury. (Bank Line v. Porter, 25 F. 2d 843; Civ. Prac. Act, § 109, subds. 5, 8; People ex rel. Durham Realty Corp. v. Cantor, 234 N. Y. 507; Livingston v. Livingston, 246 N. Y. 234; Drucker v. 693 Saratoga Ave. Corp., 245 App. Div. 760; Kanzer v. Heffron, 235 App. Div. 646.)

      George J. Conway and George A. Garvey for Dow Chemical Company, defendant-appellant and third-party plaintiff-appellant.
    I. The verdict for plaintiff against Dow Chemical is contrary to all the evidence in the case. The evidence shows that.the cause of the broken drums was the rough handling by the Transoceanic stevedores. In the event judgment against Dow is sustained, Dow should have judgment over against Transoceanic. (Niehoff-Schultze Grocer Co. v. Gross, 205 App. Div. 67, 237 N. Y. 509; Francis v. Gaffey, 211 N. Y. 47; Persick v. Philadelphia & Reading Coal & Iron Co., 182 App. Div. 291; Hruska v. Stewart & Co., 272 App. Div. 910, 297 N. Y. 829; Tipaldi v. Riverside Memorial Chapel, 273 App. Div. 414, 298 N. Y. 686.) II. The order of the Appellate Division in reversing and dismissing the third-party complaint of the Belgian Line against Dow was correct. (Fodera v. Booth Amer. Shipping Corp., 66 F. Supp. 319; Globe S. S. Co. v. Moss, 245 F. 54; Hoff v. Pacific Amer. Fisheries, 291 F. 306; Tidewater Oil Co.
      v. American S. S. Owners Mut. Protection & Ind. Assn., 156 Misc. 367; Seas Shipping Co. v. Sieracki, 328 U. S. 85; International Stevedoring Co. v. Haverty, 272 U. S. 50; The Dondo, 287 F. 239; Schnell v. The Vallescura, 293 U. S. 296; The Exemilia, 1941 A. M. C. 1684; The Idefjord, 1940 A. M. C. 1280.)

      Paul O’Dwyer and Joan O’Dwyer for plaintiff-respondent.
    I. Dow was negligent. (Rosebrock v. General Elec. Co., 236 N. Y. 227.) II. The shipowner was negligent. (Schnell v. The Vallescura, 293 U. S. 296; The Nichiyo Maru, 89 F. 2d 539; Bank Line v. Porter, 25 F. 2d 843; Kaufer Co. v. Luckenbach S. S. Co., 294 F. 978; Olsen v. United States Shipping Co., 213 F. 18; The Isla de Panay, 292 F. 723; Fiorita & Amorso v. Cunard S. S. Co., 10 F. 2d 244; Fodera v. Booth Amer. Shipping Corp., 66 F. Supp. 319; Wilbur v. Williams S. S. Co., 9 F. 2d 940, 9 F. 2d 622, 271 U. S. 666; Sciolaro v. Asch, 198 N. Y. 77; Liverani v. Clark & Son, 231 N. Y. 178; Aurigemma v. Nippon Yusen Kaisha Co., 238 N. Y. 183; McCabe v. Turner & Blanchard, 197 App. Div. 859; Anderson v. Lorentzen, 160 F. 2d 173.)

      Patrick E. Gibbons and Patrick J. McCann for Transoceanic Terminal Corporation, third-party defendant-respondent.
    I. The third-party complaint was properly dismissed. (Olsen v. United States Shipping Co., 213 F. 18; The Isla de Panay, 292 F. 723; Fiorita & Amoroso v. Cunard S. S. Co., 10 F. 2d 244; Kaufer Co. v. Luckenbach S. S. Co., 294 F. 978; Liverani v. Clark & Son, 231 N. Y. 178; McCabe v. Turner & Blanchard, 197 App. Div. 859; The Pacific, 23 F. 2d 218; Aurigemma v. Nippon Yusen Kaisha Co., 238 N. Y. 183; The Ensley City, 71 F. Supp. 444; Williams S. S. Co. v. Wilbur, 9 F. 2d 622; Bank Line v. Porter, 25 F. 2d 843; The Nichiyo Maru, 89 F. 2d 539; Schnell v. The Vallescura, 293 U. S. 296.) II. There is no proof that the stevedores damaged the drums when loading them into the deep tank, (Dougherty v. Milliken, 163 N. Y. 527; Schutz v. Union Ry., 181 N. Y. 33; Blind v. Rochester Aeronautical Corp., 273 App. Div. 1056; Aubry v. Ashland Realty Co., 255 App. Div. 205; The Thomas P. Beal, 11 F. 2d 49.)
   Cowway, J.

Plaintiff, Charles McFall, a longshoreman in the employ of Transoceanic Terminal Corporation, commenced this suit to recover damages for injuries sustained when he was overcome by carbon tetrachloride fumes while working aboard the cargo vessel S.S. Stavelot. The action was brought against the Compagnie Maritime Beige, as bareboat charterer of the vessel, hereinafter referred to as Belgian Line; Atlantic Overseas Corporation, Belgian Line’s New York booking agent, hereinafter referred to as Atlantic; Dow Chemical Company, the manufacturer and shipper of the carbon tetrachloride, hereinafter referred to as Dow; and Bunge Corporation, the purchaser of the carbon tetrachloride, hereinafter referred to as Bunge.

The respective defendants in the primary action sought indemnity by commencing third-party actions.

Belgian Line and Atlantic commenced such actions against Dow, Bunge and Transoceanic.

Bunge commenced suit against Dow and Transoceanic.

Dow, in turn, served a third-party complaint upon Transoceanic.

Two questions are raised on this appeal: First, whether there is evidence in the record sufficient to justify the verdict in plaintiff’s favor against Belgian Line and Dow, and. second, whether recovery should be allowed to (1) Belgian Line against Dow and Transoceanic and (2) Dow against Transoceanic on their claims for indemnity. The trial court dismissed Dow’s claim and the jury returned a verdict in favor of Belgian Line on its claims. The Appellate Division affirmed the dismissal of Dow’s claim but reversed the judgment in favor of Belgian Line on the ground that “ [a] 11 of the parties referred to were joint tort-feasors and there is no basis in fact or in law for recovery over by one of the joint tort-feasors against any of the others ”. (278 App. Div. 652.) Bunge and Atlantic are no longer involved in the action.

The carbon tetrachloride in question was manufactured and put into steel drums by Dow. Early in August of 1947, Bunge ordered from Dow 110 drums of that substance for export to Belgium, and booked space for them on the S.S. Stavelot through Atlantic. They were then transported from Dow’s Texas plant to New Jersey by freight car and forwarded by lighter to Pier 37 on the North River, New York City, where the S.S. Stavelot was berthed. The drums arrived at that pier on August 27th and were checked by an employee of Transoceanic on behalf of Belgian Line. They had the usual dents and bruises but were otherwise in good condition and a 11 clean ’ ’ dock receipt was issued. On August 30, 1947, a pier superintendent in the employ of Transoceanic decided that the drums should be stowed in the deep tanks of No. 1 hold. The deep tanks are located in the lowest part of the ship on the port and starboard sides and are generally used for “ wet cargo ” or water ballast. The two openings into the port and starboard deep tanks are each seven feet, three inches wide and eleven feet, one inch long. The tanks are eighteen feet deep and are watertight. The only ventilation is that received through two air duets at the top of the tanks.

Plaintiff and his fellow longshoremen then loaded the drums. The first two or possibly three drafts were loaded aboard the vessel in cargo nets whose ends were caught up by a cargo hook. When drums are loaded in that manner they are caused to be jammed together. After two or three drafts had been loaded thus, the longshoremen decided to use pie plates ”, which are seven feet wide round wooden platforms, as a means of loading the remaining drums. Five drums were placed upright on a pie plate and the draft was then swung aboard the vessel in a rope net. Seventy-two tons of lubricating oil, in drums, were loaded on top of the drums of carbon tetrachloride, on dunnage. The hatch was then covered. The Labor Day weekend followed and on September 2d plaintiff and his gang removed the cover from the hatch and plaintiff descended into the deep tank where he was overcome by carbon tetrachloride fumes. Police and fire emergency squads were summoned, mechanical ventilators were installed and, on September 3d, the longshoremen removed the cargo from the vessel. It was then discovered that 43 of the 110 drums were leaking at the “ chime seals ” or rims. There were no leaks in the bodies of the drums.

Plaintiff’s claim against Dow is that it was negligent in shipping the carbon tetrachloride in inadequate, defective and unsafe containers.

Plaintiff rightly asserts, and Dow recognizes, that, in shipping for export carbon tetrachloride whose fumes are imminently dangerous to human life, Dow should have used containers reasonably suited to withstand handling by seamen or longshoremen as well as containers suited to withstand gas pressure which could be expected to build up within the drums. It is Dow’s contention that the drums involved were adequate and that the leakage is attributable to careless handling by the longshoremen.

As previously stated all of the leaks developed at the chimes, admittedly the weakest point of the drums. They were slow, barely discernible leaks. Neither the presence of dents in the sides of a number of the drums that were removed from the hold, as testified to by Dow’s metallurgist, nor the stowing of drums of lubricating oil on top of the drums of carbon tetrachloride explains, of itself, the fact that 43 out of 110 drums developed slow leaks at the weakest part of the drums. It seems to us that the jury could reasonably infer, from that evidence, that the drums in question were inadequate for the purpose intended.

Dow points to the fact that the drums were made of new galvanized, 18 gouge steel and were constructed in accordance with the rigid requirements of Interstate Commerce Specification 17-EL It will be seen that that is a matter of defense and does not alter the fact that the evidence above mentioned makes out a prima facie case. It is not within our province to determine where the weight of the evidence lies. The evidence that a “ clean ” dock receipt was given by the Belgian Line when the drums were unloaded from the lighter to the pier is likewise a matter of defense. In any event a clean receipt is merely prima facie evidence that the drums were in apparent good order when received on the pier (see, e.g., The Dondo, 287 F. 239). There is evidence in the record from which it was possible for the jury to draw the inference that gas pressure developed inside of the 43 leaking drums (as a result of the hot weather over the Labor Day weekend) causing tiny cracks at their crimped seams. Consequently, the fact that the drums were in apparent, or even actual, good order when received does not preclude a finding that they were inadequate for their intended purpose.

Of course, it is true, as Dow argues, that there is evidence from which a jury could infer that rough handling caused the drums to leak. Transoceanic handled all the operations on the dock as well as the stowage and as already mentioned the first two or three drafts of drums were loaded into the vessel by means of cargo nets as a result of which the drums were caused to be jammed together at the bottom of the net. Manifestly if that manner of loading caused damage to the drums it would only account for 15 or less of the 110 drums. Still, there is other evidence which would warrant the jury finding that the longshoremen failed to take such precautions as were necessary to prevent the drums from banging together as they were lowered into the tanks, as a result of which damage was caused to a greater number of drums. Moreover, when the testimony of Dow’s metallurgist to the effect that three out of four drums, which were representative of all, contained sizeable dents, is read in conjunction with the evidence that the drums had the usual minor dents and bruises but were otherwise in good condition when received on the pier, it cannot be urged, seriously, that it was not possible for the jury to draw the inference that the drums were handled in a rough manner and that such handling helped to cause the 43 drums to leak. Nevertheless, the jury was not bound to conclude that rough handling was the sole cause of the leaking but was free to find that it was the concurrent negligence of Dow, in supplying inadequate drums, and Transoceanic, in handling them in a rough manner, which caused them to leak.

Plaintiff’s claim that Dow was further negligent in not giving proper or adequate warning of the risks or dangers involved in the handling or stowing of carbon tetrachloride is not before us inasmuch as the complaint rests solely on the inadequacy and defective nature of the containers and the failure of Dow to warn of the inadequate, defective, unsafe and dangerous condition of such containers or drums ”.

Turning to the case against Belgian Line:

Plaintiff does not assert that the vessel was unseaworthy. Hence, the doctrine of Seas Shipping Co. v. Sieracki (328 U. S. 85, 94-95) has no relevancy here. The claim made is that Belgian Line failed in its duty to exercise due care to provide plaintiff with a reasonably safe place to work.

In Riley v. Agwilines, Inc. (296 N. Y. 402, 405-406) we said: Since it is beyond the power of the State by legislation or judicial decision to mold or modify the maritime law (Knickerbocker Ice Co. v. Stewart, 253 U. S. 149), we must look to the decisions of the Federal courts to define the liabilities of shipowners for maritime torts, leaving out of consideration decisions of our own courts or statutes of the State which conflict with the rules of liability established in the Federal courts (Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449, overruling Maleeny v. Standard Shipbuilding Corp., 237 N. Y. 250.) * * * ‘ Notwithstanding the State court has concurrent jurisdiction with .the Federal courts to entertain the suit (Messel v. Foundation Co., supra [274 U. S. 427]; Kellogg & Sons, Inc., v. Hicks, 285 U. S. 502, 514) and the action is brought in the State court, the principles and rules of the substantive maritime law are alone to be applied as ground, if any, for recovery.’ ”

Under the maritime law a longshoreman who is employed by an independent .contractor engaged by the owner to load its ship, occupies the status of an invitee aboard the vessel. As such he is entitled to a reasonably safe place to work. The duty of exercising reasonable diligence to provide such a place and warn the longshoremen of hidden dangers devolves upon the owner of the ship. For a breach of that duty liability follows. (Fodera v. Booth Amer. Shipping Corp., 66 F. Supp. 319, 320, affd. 159 F. 2d 795; The S.S. Anderson, 37 F. Supp. 695; The Dalhem, 41 F. Supp. 718, 720; Altamura v. United States, 78 F. Supp. 531, 532.)

That duty is nondelegable and the fact that there is a concurrent duty imposed upon the longshoreman’s employer to furnish him with a safe place to work does not alter the owner’s liability. (Anderson v. Lorentzen, 160 F. 2d 173; Vanderlinden v. Lorentzen, 139 F. 2d 995; Fodera v. Booth Amer. Shipping Corp., 66 F. Supp. 319, affd. 159 F. 2d 795, supra; Porello v. United States, 153 F. 2d 605, 608, revd. in part and affd. in part sub nom. American Stevedores v. Porello, 330 U. S. 446.)

Belgian Line concedes that it owed plaintiff such a duty.

Belgian Line also recognizes that the shipowner is charged with whatever knowledge it would have acquired as to the nature and characteristics of cargo carried on its ship had it exercised due care to acquaint itself with the facts (Anderson v. Lorentzen, 160 F. 2d 173, 175, supra; Williams S.S. Co. v. Wilbur, 9 F. 2d 622) and that there is imposed upon the master of a vessel a duty of seeing that cargo is stowed appropriately (The Etna, 43 F. Supp. 303, 305; Carter v. Brown, 212 F. 393).

Thus, in this case, the Belgian Line was chargeable with the knowledge that carbon tetrachloride fumes are- heavier than air, tend to settle at the bottom of any confined space and have a numbing and serious effect on the human system when inhaled.

The initial question for our consideration, then, is whether or not a jury could reasonably find that the decision to stow the drums in the deep tanks was, in and of itself, a negligent act causally related to plaintiff’s injuries.

United States Coast Guard regulations do not impose any restrictions with respect to the parts of a ship in which carbon tetrachloride may be stowed. Interstate Commerce regulations do not treat carbon tetrachloride as a dangerous article. The only testimony which tends to show that the mere act of stowing carbon tetrachloride in deep tanks was dangerous came from an inspector of the New York Board of Underwriters who testified that carbon tetrachloride should be stowed in a well-ventilated compartment which, obviously, a deep tank is not. However, that statement loses much of its impact when read in context. It is clear that in the opinion of the inspector the prime consideration was that carbon tetrachloride be stowed away from food and living quarters. The only warning which the drums themselves contained was that found on a blue sticker attached to each of the drums which read: “ Warning, volatile solvent. Use with adequate ventilation ”. A shipowner is not compelled to presume, at the time it stows drums containing liquids, that such drums are inadequate for the purpose intended. In the absence of such a presumption the label above quoted affords a warning only as to users and use.

Manifestly, if the drums in question had not been inadequate for the purpose or, if adequate, had not been handled in such a manner as to cause them to leak, the accident here would not have occurred even though the drums were stowed in the vessel’s deep tanks. It was the leaking of the drums which rendered the deep tanks unsafe and which was the proximate cause of plaintiff’s injuries. u One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm Avas not Avillful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.” (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 345.) There has been no showing that the mere act of stowing carbon tetrachloride in the deep tanks had possibilities of danger “ so many and apparent ” that plaintiff was entitled to be protected against the doing of it ”.

However, plaintiff further claims that the drums were leaking when Belgian Line stowed them. Certainly, on the basis of the evidence adduced as to the properties of carbon tetrachloride, if leaking drums were loaded into the deep tanks by Belgian Line with knowledge of the fact that they were leaking, that would be a negligent act having possibilities of danger so many and apparent as to entitle "him [plaintiff] to be protected against the doing of it ”. The sole testimony tending to establish that any of the drums were leaking at the time they were loaded aboard the ship came from a longshoreman. He testified that he noticed several drums leaking at the rims as they were being put aboard the ship and that he remarked about the fact to a man passing by whose name and position he did not know but who “ had a sort of an officer’s cap on ” and whom he had seen [w]ell, sort of taking care of the crew members- on his ship.” Later, on cross-examination, he stated that he was unable to swear that there was more than one drum leaking. He also admitted that he did not know whether that drum contained carbon tetrachloride or lubricating oil. The testimony of that longshoreman is extremely Aveak evidence of the fact that he spoke to an authorized agent of Belgian Line or that any of the drums containing carbon tetrachloride was leaking when loaded into the vessel. Furthermore, other evidence tends to weaken his credibility. Although it Avas his job to report leaking drums of wet cargo to his hatch foreman he did not do so here. A checker employed by Transoceanic testified that it was he Avho checked the 110 drums as they were loaded into the vessel and he found no leaking drums. While it is true that the credibility of a witness and the weight of the evidence is for the jury, it is clear that the verdict here, when viewed in light of the Trial Judge’s charge, shows beyond all question that the jury rejected the longshoreman’s testimony, thereby concluding that Belgian Line did not have notice that the drums were leaking. The Trial Judge made it clear that, if the Belgian Line were found to have stowed the drums below decks “ knowing of their defective condition ”, Belgian Line would be a joint tort-feasor and could not recover from any other tort-feasor. The jury brought in a verdict for Belgian Line against Dow and Transoceanic. Implicit in that verdict is the finding that Belgian Line stowed the drums without knowing that any of them was leaking.

Though the jury rejected the testimony given by that longshoreman it was still possible for them to find Belgian Line negligent. The Judge charged that such a finding could be made if Belgian Line failed to warn these stevedores working about cargo of danger therefrom, if any, even though the stevedores ’ employer, as an independent contractor, may have been aware of the danger.” Belgian Line did not warn the longshoremen of the properties of carbon tetrachloride nor did it caution them to employ special care in the manner of loading or handling that substance. As mentioned earlier, the evidence tended to establish that the longshoremen, in fact, handled the drums in a rough fashion and that such handling helped to cause the drums to leak. While it cannot be stated with absolute certainty that a warning by the shipowner would have prevented such handling and the consequent leaks, still it is probable that the warning would have had its effect and since it was the duty of the shipowner to warn against that happening the jury could properly find that such failure played an important role in this accident. Hence, the verdict against Belgian Line was justified.

The remaining questions relate to the claims by Dow against Transoceanic and of Belgian Line against Dow and Transoceanic.

It is essential to note that neither Dow nor Belgian Line is claiming contribution — both are seeking indemnity — and there is a fundamental distinction between contribution and indemnity. The right to contribution is not founded on nor does it arise from contract and only ratable or proportional reimbursement is sought in an action for contribution. In the absence of statutory provision one of several wrongdoers, who has been compelled to pay damages for the wrong committed, cannot obtain contribution from the others who participated in the commission of the wrong. Such is the rule recognized not only by the courts of this State (see, e.g., Fox v. Western New York Motor Lines, 257 N. Y. 305) but by the Federal courts (see Union Stock Yards Co. v. Chicago, B. & Q. R. Co., 196 U. S. 217, 224). The maritime rule has been stated as follows: ‘ * Where two vessels collide due to the fault of both, it is established admiralty doctrine that the mutual wrongdoers shall share equally the damages sustained by each, as well as personal injury and property damage inflicted on innocent third parties. This maritime rule is of ancient origin and has been applied in many cases, but this Court has never expressly applied it to non-collision cases.” (Halcyon Lines v. Haenn Ship Corp. [1952], 342 U. S. 282, 284.) The Supreme Court then went on to declare the collision rule of contribution inapplicable in noncollision cases.

The common-law rule denying contribution to joint tortfeasors has been partially abrogated in this State by the enactment of section 211-a of the Civil Practice Act which authorizes contribution if two conditions exist: (1) a joint money judgment against the tort-feasors, and (2) the payment by one tort-feasor of more than his prorata share thereof. (Fox v. Western New York Motor Lines, 257 N. Y. 305, supra.)

The right to indemnity, as distinguished from contribution, is not dependent upon the legislative will. It springs from a contract, express or implied, and full, not partial, reimbursement is sought. Where several tort-feasors are involved an implied contract of indemnity arises in favor of the wrongdoer who has been guilty of passive negligence, if there be such, against the one who has been actively negligent. The actively negligent tort-feasor is considered the primary or principal wrongdoer and is held responsible for his negligent act not only to the person directly injured thereby, but also to any other person indirectly harmed by being cast in damages by operation of law for the wrongful act. Whether negligence is passive or active is, generally speaking, a question of fact for the jury.

Dow’s claim against Transoceanic was dismissed at the close of the case by the Trial Judge in the following words: “ Implicit in the fastening of liability on Dow must be a finding that the drums here involved were not reasonably safe for the purposes for which they were used and that Dow was affirmatively negligent. If this be so, then subsequent mishandling by Transoceanic, if any there was, would establish both as active joint tortfeasors. In such circumstances, there may not be a recovery over.”

We agree with that disposition of Dow’s claim against Transoceanic. The only evidence in the record which would permit a jury to find Dow negligent was that indicating that the carbon tetrachloride was shipped in drums which were inadequate for the purpose intended and the jury so found. That act was not a mere failure to perform a nondelegable duty imposed by law which, under the circumstances should have been performed by another — it was an act of affirmative negligence.

With respect to Belgian Line’s claims for indemnity, the Trial Judge charged the jury that before the shipowner might recover from any third party the jury must be satisfied, not only that the third-party defendant was “ negligent in accordance with ” the charge, but also that the third-party plaintiff (Belgian Line) “ did not by any affirmative act of [negligence] * * * of its own contribute to the happening of this accident.” Therefore, implicit in the jury’s verdict for Belgian Line against Dow and Transoceanic is the finding that the Belgian Line was only passively negligent whereas Dow and Transoceanic were actively negligent. Since there is evidence sufficient to support that verdict it must stand.

Transoceanic was negligent in failing to warn the longshoremen of the properties of carbon tetrachloride, in failing to caution them to employ special care in the manner of loading or handling that substance and in failing to otherwise properly supervise and perform the loading operations. Nevertheless, since the duty to furnish longshoremen with a safe place to work is a nondelegable duty imposed by law upon the shipowner and requires, inter alla, that the shipowner warn the longshoremen of possible dangers to be encountered, the failure of Belgian Line to thus warn plaintiff is a sufficient basis for holding Belgian Line liable to plaintiff. However, ‘ ‘ The mere fact that both parties may be guilty of negligence in law as to the person injured does not necessarily mean that the owner [Belgian Line] and general contractor [Transoceanic] are participes criminis or in pari delicto as to each other.” (Tipaldi v. Riverside Memorial Chapel, 273 App. Div. 414, 418, affd. 298 N. Y. 686.) Here Transoceanic, the stevedoring contractor, entered into an agreement with Belgian Line to perform the loading operations and it was under an obligation to do that work in a careful and prudent manner whether that duty was expressed in the contract or not. Transoceanic was in complete charge of those operations from the time the cargo reached the pier until it was loaded into the vessel save only insofar as Belgian Line made the choice as to where the various cargo was to be stowed. Clearly Transoceanic did not properly perform or supervise the work and as a consequence plaintiff was injured and the jury so found. Moreover, the “ primary duty to furnish its employees a safe place to work [rests] upon the stevedore [employer].” (Porello v. United States, 153 F. 2d 605, 608, revd. in part and affd. in part sub nom. American Stevedores v. Porello, 330 U. S. 446, supra.)

The evidence earlier outlined shows that Belgian Line was guilty of a fault of omission whereas Transoceanic, in negligently handling the drums, and Dow, in supplying inadequate drums, were guilty of faults of commission. (Cf. Standard Oil Co. v. Robins Dry Dock & Repair Co., 32 F. 2d 182, 184.) While that is not always determinative, since either a fault of omission or one of commission may constitute active negligence, it seems to us that the factual disparity between the delinquency of Transoceanic and Dow and that of Belgian Line is so great here that the jury was justified in concluding that Belgian Line’s fault of omission was only passive negligence.

The right of Belgian Line to a recovery over finds support in numerous cases among which are Washington Gas Co. v. District of Columbia (161 U. S. 316); George A. Fuller Co. v. Otis Elevator Co. (245 U. S. 489); Burris v. American Chicle Co. (120 F. 2d 218); Standard Oil Co. v. Robins Dry Dock & Repair Co. (32 F. 2d 182, 184, supra); Schwartz v. Merola Bros. Constr. Corp. (290 N. Y. 145), and Tipaldi v. Riverside Memorial Chapel (273 App. Div. 414, affd. 298 N. Y. 686, supra). None of those cases is vitally different from the present case. In all of them a plaintiff recovered against a person, such as Belgian Line, who was under a nondelegable duty to furnish a safe place to such plaintiff but in each case the primary and affirmative wrong was occasioned by the defendant against whom indemnity was sought and indemnity was permitted. The rule enunciated in Walters v. Rao Elec. Equipment Co. (289 N. Y. 57) is not applicable here since no breach of section 241 of the Labor Law is involved. (See, also, Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N. Y. 412.)

Belgian Line has not urged that the stevedoring contract with Transoceanic contained an express covenant of indemnity. Nevertheless, the cases above cited establish the principle that, even in the absence of an express covenant of indemnity Belgian Line has the right to a recovery over against Transoceanic if the evidence be sufficient to establish Transoceanic as the primary wrongdoer. Indeed, as we said in Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola (134 N. Y. 461, 467): one who has been held legally liable for the personal neglect of another is entitled to indemnity from the latter, no matter whether contractual relations existed between them or not * * Therefore, even though Dow and Belgian Line were not parties to a contract the fact that Belgian Line has been cast in damages because of Dow’s active negligence is a sufficient basis for permitting Belgian Line a recovery over as against Dow.

Although it is not urged here, passing mention should be made of an affirmative defense raised by Transoceanic but dismissed by the Trial Judge as insufficient in law. The substance of that defense is that by virtue of section 905 of title 33 of the United States Code, plaintiff’s exclusive remedy against Transoceanic is under the Longshoremen’s and Harbor Workers’ Compensation Act and to permit Belgian Line or Dow a recovery over on an indemnity theory is to make the employer liable indirectly in an amount which could not be recovered directly. That same defense was argued before this court by an employer who had complied with the provisions of the New York Workmen’s Compensation Law (upon which the Federal act was modeled), and we concluded that it was insufficient in law since the defendant,in seeking a recovery over is not suing for the damage sustained by the employee but asserts its own right of recovery for breach of an alleged independent duty or obligation owed to it by the employer as indemnitor. (Westchester Lighting Co. v. Westchester Co. Small Estates Corp., 278 N. Y. 175.) (See, also, Burris v. American Chicle Co., 120 F. 2d 218, 223, supra; Mirsky v. Seaich Realty Co., 256 App. Div. 658.)

The Federal rule does not appear to be different. “ While the remedy afforded by the Longshoremen’s Compensation Act is exclusive as between employer and employee, it does not nullify or alter the workman’s rights as against third parties (Seas Shipping Co. v. Sieracki, 328 U. S. 85, 102). Nor does it bar the third party thus sued from recovering from the workman’s employer damages such party is required to pay to the employee by reason of the employer’s negligence. (Green v. War Shipping Administration, 66 F. Supp. 393, 395; Severn v. United States, 69 F. Supp. 21; Benevento v. United States, 68 F. Supp. 347; all maritime cases involving indemnification. * * * ” (Barbara v. Ransom, Inc., 191 Misc. 957, 960 (Froessel, J.) To the list of cases above cited may be added the later case of Rich v. United States (177 F. 2d 688, 691) where the United States Court of Appeals for the Second Circuit stated that the right to indemnity exists “ despite the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act ”.

The judgment of the Appellate Division should be modified in accordance with the opinion herein, with costs in this court and in the Appellate Division to Belgian Line against Dow and Transoceanic, and, as so modified, affirmed, with costs.

Loughran, Ch. J., Lewis, Desmond, Dye, Ftjld and Froessel, JJ., concur.

Judgment accordingly.


author:
Conway, J.
      Desmond, J.

text:
    Nat Nal Service Stations, Inc., Appellant, v. Henry Wolf et al., Respondents.
    Submitted April 21, 1952;
    decided July 15, 1952.

      Jerome A. Strauss for appellant.
    I. The Statute of Frauds is not a defense. (Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; Kent v. Kent, 62 N. Y. 560; Warren Chemical & Mfg. Co. v. Holbrook, 118 N. Y. 586; Blake v. Voigt, 134 N. Y. 69; Spector Co. v. Serutan Co., 60 N. Y. S. 2d 212, 270 App. Div. 993; Ward v. Hasbrouck, 169 N. Y. 407; Van Woert v. Albany & Susquehanna R. R. Co., 67 N. Y. 538; International Ferry Co. v. American Fidelity Co., 207 N. Y. 350; Brown v. Babcock, 265 App. Div. 596; Scanlan v. Henie, 264 App. Div. 913; Rochester Folding Box Co. v. Browne, 55 App. Div. 444, 179 N. Y. 542; Berth v. Knapp Co., 215 App. Div. 693; Suren v. Handel, 205 App. Div. 829; Adams v. Fitzpatrick, 125 N. Y. 124; Hedeman v. Fairbanks, Morse & Co., 286 N. Y. 240.) II. There should be summary judgment in favor of plaintiff. (Zurich Gen. Accident & Liability Ins. Co. v. Bethlehem Steel Co., 279 N. Y. 495.)

      Milton H. Spiero and Samuel Finkelstein for respondents.
    The contract relied on is void and unenforcible under the Statute of Frauds. (Martocci v. Greater New York Brewery, 301 N. Y. 57; Cohen v. Bartgis Bros. Co., 264 App. Div. 260, 289 N. Y. 846.)
   Conway, J.

This is an action to recover upon an agreement which is set out in the following paragraph of the complaint. ‘ ‘ Fourth : That heretofore the defendants duly entered into an agreement with the plaintiff, wherein and whereby the defendants promised and agreed to and with the plaintiff that so long as plaintiff purchased from Socony Vacuum Oil Company or the Standard Oil Company or either or both, its requirements for gasoline at its place of business through the defendants and the defendants accepted the same, the defendants would pay to the plaintiff an amount equal to the discount allowed to defendants by said Socony Vacuum Oil Company and Standard Oil Company or either or both of them, on each gallon of gasoline so purchased.”

The defendants answered, denying each and every allegation of the paragraph quoted, and pleaded as a separate defense, that the oral agreement alleged ‘ ‘ by its terms was not to be performed within one year from the making thereof ”.

A motion was then made by defendants for summary judgment under rule 113 of the Buies of Civil Practice. The affidavit in support of the motion was made by the individual defendant but surprisingly stated no facts. Since summary judgment dismissing the complaint has been granted, we must look, therefore, to the allegations of the complaint and the affidavit of the president of the plaintiff corporation in opposition to the motion. The portion of that affidavit which is material states the following facts: ‘ ‘ The plaintiff has a garage and gas station at 14 Second Avenue, in the Borough of Manhattan, City of New York, for the purpose of the sale of gas thereat. The defendant Wolf and the corporate defendant had an arrangement with various oil companies supplying oil, under which the defendants received a discount or allowance based upon the number of gallons of gasoline purchased by or through them from the companies. In order to obtain a greater allowance, the defendants desired to increase the volume of their orders for gasoline, and hence came to me with the proposition that if I would give my orders for gasoline through them, thereby increasing their volume, they would pay to me an amount equal to the discount received by them from the oil companies upon whatever orders I gave to them, and if they accepted my orders. I did give the defendants orders which they accepted and then transmitted in their name to the oil companies, under which they received a discount of at least one cent a gallon. Throughout the period I purchased from and through them some 907,115 gallons of gasoline, on orders which they accepted * * *

Subdivision 1 of section 31 of the Personal Property Law has been so construed as to apply only to agreements which by their- terms do not admit of performance within one year from the time of their making and if performance be possible within the year, however unlikely or improbable that may be, the agreement does not come within the proscription of the statute. (See, e.g., Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; Warren Chemical & Mfg. Co. v. Holbrook, 118 N. Y. 586; Blake v. Voigt, 134 N. Y. 69; Ward v. Hasbrouck, 169 N. Y. 407.)

The agreement alleged here was clearly one at will and for no definite or specific time and thus by its terms did not of necessity extend beyond one year from the time of its making. It is clear from the complaint and affidavit that neither party obligated itself to do anything. Unless and until plaintiff had offered to place an order for gasoline ■ and the defendants had accepted such offer and filled the order, only then did there come into existence a legal obligation, viz., the obligation of defendants to pay the agreed discount. The promise by defendants to allow plaintiff a discount on purchases by plaintiff if made through them did not obligate plaintiff to buy its gasoline requirements through defendants. The plaintiff could have purchased the same gasoline through someone other than defendants. On the other hand if the plaintiff placed an order the defendant was under no obligation to accept it. Neither party was obligated to deal with the other. Each time the plaintiff offered to buy gasoline from defendants and the defendants accepted the offer and sold gasoline, there was concluded a separate contract and there became due from defendants the discount specified, but neither party was ever obligated to enter into another such contract. The discounts received by defendants from the named oil companies as received 11 became due and owing by the defendants to the plaintiff ” and the plaintiff so pleaded in paragraph “ Seventh ” of the complaint. In reality the pláintiff is suing to recover the discounts due from a series of completed and executed, independent contracts. When, defendants accepted an order placed by plaintiff they became bound to grant the discount. The acceptance of an order conferred upon plaintiff the right to the discount and imposed upon defendants the duty to pay it to plaintiff. Until and unless an order was offered by plaintiff and accepted by defendants, neither party had any rights or duties. As has been indicated above by the terms of the alleged oral agreement defendants could at any time refuse to accept an order and thereby .avoid payment of a discount. On the other hand plaintiff was not obligated at any time to place any orders with defendants. Since neither party was under any contractual obligation to enter into a new contract with respect to each succeeding order for gasoline it seems quite clear, in the words of the dissenting Justice below, that both parties retained the power to bargain fully concerning its [a future order] terms.” (279 App. Div. 206, 211.) Thus defendants were free at any and all times to discontinue payment of a discount either by refusing to accept an order or by notification to plaintiff that thenceforth no discounts would be paid. Plaintiff was at all times free to place all its orders for gasoline elsewhere or to notify defendants that no further orders would be offered to them for acceptance. We are confronted with an alleged contract by the terms of which neither party was bound to do anything at any time, and consequently there is nothing in its terms to bring it within the Statute of Frauds.

The cases of Martocci v. Greater New York Brewery (301 N. Y. 57) and Cohen v. Bartgis Bros. Co. (264 App. Div. 260, affd. 289 N. Y. 846) referred to below are not to the contrary. In both those cases the allegations in the complaints set forth contracts binding upon the parties for indefinite periods of time. In neither case was any party given the right to terminate the contractual relationship. In the Martocci case (pp. 60-61) the complaint, as amended, alleged an oral agreement, later supplemented by writings, whereby “ in consideration of the introduction of the defendant by plaintiff ” to a large and well-known corporation, defendant agreed “ to pay the plaintiff a commission of five (5%) per cent on all sales made by the defendant ” to such corporation and paid for by it. The contract had been fully executed by the plaintiff and there was nothing further for him ever to do. We said (301 N. Y. 60, 62-63): “ In our opinion, the Statute of Frauds applies to this transaction (Cohen v. Bartgis Bros. Co., 264 App. Div. 260, affd. 289 N. Y. 846). If the terms of the contract here had included an event which might end the contractual relationship of the parties within a year, defendant’s possible liability beyond that time would not bring the contract within the statute. Since, however, the terms of the contract are such that the relationship will continue beyond a year, it is within the statute, even though the continuing liability to which defendant is subject is merely a contingent one. The endurance of defendant’s liability is the deciding factor. The mere cessation of orders from Lorillard to defendant would not alter the contractual relationship between the parties; it would not constitute performance; plaintiff would still be in possession of his contractual right, though it may have no monetary value, immediately or ever.” (Emphasis supplied.) In the case at bar neither party had any contracual right which had any duration in time.

The Cohen case (supra) is, in substance, the same as the Martocci case (supra). The plaintiff, a commission salesman, was employed by the defendant. Plaintiff alleged that in 1938, the defendant orally agreed to pay him commissions based upon all orders placed by Resolute Paper Products Corp., a customer procured by the plaintiff, at any time whether or not the plaintiff was in the defendant’s employ at the time of the placing of the orders. According to the allegations in the complaint the defendant had agreed to sell to Resolute Paper Products Corp. the requirements of cake boxes for the account of the procured customer, Cushman & Sons, Inc. In. holding that the contract was unenforcible as being within the Statute of Frauds the court said (264 App. Div. 260, 261): “We are mindful of the rule that contracts which admit of performance within a year, though unlikely to be thus performed, are not within the statute. [Citing cases.] But the contract here is of a different character, for not only is it of indefinite duration but, by its terms, an obligation is imposed on the defendant which continues so long as the defendant and Resolute Paper Products Corp. exist. It is true that if Resolute Paper Products Corp. should place no orders with the defendant within the year, no commissions would be earned, but the defendant’s contract would not thereby have been ‘ performed,’ for it would then apply to any orders that might be accepted in succeeding years. * * * Unlike contracts which require the performance of a single act which may or may not be executed within a year, the contract here requires the defendant, for an unlimited period of time, to pay commissions on orders accepted from Resolute Paper Products Corp. and, therefore, is impossible of performance within a year.”

The obligation placed upon the defendant under the. oral contract in the Cohen case (supra) was one which would continue as long.as the defendant and Resolute Paper Products Corp. were in existence. The defendant did not possess the right to terminate the contract as a matter of right and could in no way avoid liability on orders placed by the Resolute Pape" Products Corp. which it was bound to accept. (See Taylor v. Morgan’s Sons Co., 124 N. Y. 184, and Hedeman v. Fairbanks, Morse & Co., 286 N. Y. 240, 250, discussed later herein.)

In both the Martocci and Cohen cases (supra) the plaintiff salesmen had executed their parts of the respective contracts. In the Martocci case the plaintiff’s performance constituted the introduction of the defendant to the customer, and in the Cohen case the plaintiff performed his part of the contract by having procured the customer for the defendant. In both those cases the performance by the respective plaintiffs under the alleged oral agreement constituted the consideration necessary to impose a binding obligation upon the defendants to carry out their part of the contracts, in accordance with their promises, by paying the plaintiffs commissions on all sales to the customers whenever made. (Rubin v. Dairymen’s League Co-op. Assn., 284 N. Y. 32.) The sole question considered and passed upon in the Cohen case was whether the contract “ by its terms is [was] not to be performed within one year from the making thereof.” (264 App. Div. 260, 261, affd. 289 N. Y. 846.) In neither the Martocci case nor the Cohen case could the defendant escape contractual obligation to the plaintiffs to pay commissions upon sales to the customer procured by the plaintiff. The plaintiffs’ right to commissions in those two cases was not dependent upon any act of the plaintiffs or the defendants, as here, but was wholly dependent upon the act of the third party, the procured customer. Any time the customer placed an order which the defendants were in good faith bound to accept they had to pay the plaintiffs the commission called for. If the customer did not place an order until more than a year after the contract was entered into the defendants would still be under a contractual obligation to pay the plaintiffs their commissions on any subsequent orders. The defendants could not avoid their contractual obligations by refusing to accept orders from the customers procured by the plaintiffs. In Taylor v. Morgan’s Sons Co. (124 N. Y. 184, 186, supra), an action was brought by the plaintiff to recover commissions under a written agreement whereby the plaintiff was to be paid commissions “ upon all orders accepted from bona fide purchasers ”. This court said (p. 188): “ The referee allowed the plaintiff commissions upon orders from responsible parties, which were not accepted by the defendant. We incline to the view that it was the duty of the defendant to accept all orders presented by the plaintiff from bona fide purchasers, which were made in accordance with the provisions of the contract, and that they did not have the right, without cause, to arbitrarily refuse to accept such orders. Such a construction of the contract would require the plaintiff to travel over the territory mentioned, at his own expense, six times a year, with a right on the part of the defendant to reject every order presented by him, and to thus deprive him of any commissions.”

We have also said in Hedeman v. Fairbanks, Morse & Co. (286 N. Y. 240, 250, supra), that a salesman’s right to commissions for services rendered could not be defeated by the arbitrary refusal of his employer to accept orders from the customer procured by the salesman.

The possible dissolution or retirement from' business of a defendant or a customer in the Martocci and Cohen cases (supra) did not take those cases out of the Statute of Frauds. In the Cohen case the Appellate Division said (264 App. Div. 260, 261): It is suggested that Resolute Paper Products Corp. or the defendant might retire from business or dissolve within a year, in which event the contract would be impossible of further performance and thus would terminate. But ‘ termination is not performance, but rather the destruction of the contract # * where there is no provision authorizing either of the parties to terminate as a matter of right.’ (Blake v. Voigt, 134 N. Y. 69.)”

Here, neither party has, nor is it possible for them under the terms of the alleged agreement, to furnish consideration through performance which will bind the other party for a period beyond the offering and acceptance of a particular order. Plaintiff need never perform at all. If plaintiff chooses to perform by placing an order the defendants are not bound to accept it. If defendants perform by acceptance of an order they do not bind themselves as to any future order. It is clear that each order and acceptance is a separate contract and that the parties herein have performed and executed a series of contracts.

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

Desmond, J.

(dissenting). The suit is for moneys due under an oral agreement, and defendants have been awarded summary judgment of dismissal, on motion, on the ground that the complaint shows on its face that the agreement sued upon is one which the Statute of Frauds makes unenforcible. For our purposes, the allegations of the complaint are, of course, taken as being true, and so we are limited to the legal question of the enforcibility, under the statute, of the particular contract which the complaint asserts and describes. That such a contract may be invalid for some other reason (such as lack of mutuality of obligation) is beside the point, and beside the point, too, is the fact that there would be no obligation on defendants- to pay anything unless and until there were entered into between the parties separate sales transactions whereby plaintiff chose to give defendants, and defendants chose to accept, orders for gasoline. Plaintiff claims under one definite, described, contract whereby, according to plaintiff the parties agreed orally that, so long as plaintiff should purchase from certain oil purchasers, but through defendants, plaintiff’s requirements of gasoline, and so long as defendants should accept those orders, defendants would pay plaintiff a certain commission or discount, equal to that received from the producers by defendants, on the quantities of gasoline so purchased by plaintiff. If that oral contract so set forth by plaintiff is, in law, one which ‘ ‘ By its terms is not to be performed within one year ” (Personal Property Law, § 31, subd. 1), then the complaint was properly dismissed.

Regardless of whether, or when, plaintiff gave, or defendants accepted, any orders for gasoline, plaintiff’s right to give such orders and defendants’ obligation to pay the agreed amount if it accepted any of them, would, by the terms of that treaty, continue for an indefinite time. There was nothing that either party could do, within a year, or within any other agreed-upon period, to bring the arrangement to an end. Putting that in another way: plaintiff, into the indefinite future, would have the right to place orders and collect the discount if any of the orders was accepted, and there was nothing defendants could do, within a year from the making of the deal, to discharge and terminate its obligation. The agreement, therefore, was one, which under the rule of Cohen v. Bartgis Bros. Co. (289 N. Y. 846), and Martocci v. Greater New York Brewery (301 N. Y. 57), was unenforcible because it was not put in writing.

The judgment should be affirmed, with costs.

Lewis, Dye and Froessel, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Loughran, Ch. J., and Fuld, J., concur.

Judgment accordingly.