text:
    In the Matter of the Estate of George W. Parsons, Deceased. Fanny T. Parsons et al., Appellants; Katharine P. Murphey, Respondent.
    Will —gift of life interest in half of residuary estate to children of deceased brother surviving testator with remainder to their children — death of one of such life tenants prior to falling in of part of residuary estate — children entitled to share of their father upon falling in of such residue — direction that in case of death of daughter without issue share appropriated to her be divided equally among surviving children of deceased brother — words “surviving children ’’ refer to those surviving at death of daughter.
    1. Where testator by his will gave to his daughter the use of certain real property for life and provided that “ after her decease such property shall become a part of my residuary estate,” and by a subsequent provision directed that one-half of such residuary estate be divided into as many shares as there should be children of his deceased brother surviving him and that the income from a share should be applied to the support of each of such children during its life and at its death the principal paid to its lawful issue, and at the death of the testator there were living two children of said deceased brother, but one predeceased the life tenant, leaving three children who survived her death, the said three children take the share of their father in the residuary estate and are, therefore, each entitled to one-twelfth of the real property.
    2. Testator having given the other half of the residuary estate to his daughter for life with remainder to her children and directed that in ease she die without lawful issue the share appropriated to her “ be divided equally among the surviving children of said deceased brother,” upon the death of the daughter without issue, the surviving child of the deceased brother of testator took all of the share so appropriated. A contention that the words “ surviving children ” refer to those surviving at the time of the testator’s death and not at the time of the life tenant’s death cannot, in view of all the circumstances, be sustained.

      Matter of Parsons, 214 App. Div. 802, modified.
    (Argued March 1, 1926;
    decided March 30, 1926.).

      Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 26, 1925, which unanimously affirmed a decree of the Westchester County Surrogate’s Court construing the will of George W. Parsons, deceased.

      Samuel Seábury and Charles W. Littlefield for appellants.
    Edward D. Parsons, being a residuary legatee, took a vested interest in the remainder after the life estate created under the second paragraph of the will. (Loder v. Hatfield, 71 N. Y. 92; Matter of Young, 145 N. Y. 535.) Edward D. Parsons and Katharine P. Murphey took vested interests at the death of the testator under the seventh paragraph of the will, subject to be divested by the birth of issue of the life tenant. (Matter of Johnson, 212 App. Div. 768; Moore v. Littel, 41 N. Y. 66; Connelly v. O’Brien, 166 N. Y. 406; Hersee v. Simpson, 154 N. Y. 496; Flanagan v. Staples, 28 App. Div. 319; Matter of Trevor, 120 Misc. Rep. 22; Farmers Trust Co. v. Borden, 83 N. J. Eq. 222; Matter of Turner, 210 App. Div. 221; United States Trust Co. v. Perry, 193 App. Div. 153; 232 N. Y. 609.) A construction that these remainders were vested is the only interpretation consistent with giving effect to all and every part of the will of the testator. (Matter of Buechner, 226 N. Y. 440; Adams v. Massey, 184 N. Y. 62; Matter of Valentine, 119 Misc. Rep. 442; Matter of Flint, 118 Misc. Rep. 134; Prowitt v. Rodman, 37 N. Y. 42; Matter of Patton, 111 N. Y. 480.)

      A. P. Bachman for respondent.
    The construction that respondent takes the entire estate under the seventh paragraph is correct and according to the intent of the testator. (Matter of Buechner, 226 N. Y. 440; Matter of Hart, 122 Misc. Rep. 168; Cammann v. Bailey, 210 N. Y. 19; Palmer v. Horn, 84 N. Y. 516; Matter of Keogh, 126 App. Div. 285; 193 N. Y. 603; Matter of King, 200 N. Y. 192; Baer v. Hendricks, 147 N. Y. 348; Salter v.
      Drowne, 205 N. Y. 204; N. Y. Life Insurance & Trust Co. v. Winthrop, 237 N. Y. 93; Matter of Crane, 164 N. Y. 72.) The remainder in the second paragraph of the will also goes to respondent as the only child of the deceased brother who survived the life tenant. (Close v. Farmers Loan & Trust Co., 195 N. Y. 92; Matter of Hoffman, 201 N. Y. 247; Shuler v. Shuler, 137 App. Div. 515; Greene v. Greene, 54 Hun, 93; 125 N. Y. 506.)
   Crane, J.

George W. Parsons died January 12, 1887, leaving him surviving an adopted daughter, Ella B. Parsons, subsequently Ella B. Wentworth, a nephew, Edward D. Parsons, and a niece, Katharine Parsons, now Katharine Murphey, the last two being children of a deceased brother, John B. Parsons.

By his will, executed on the fifth day of June, 1884, the testator left the larger part of his property to these relatives in the manner following. By the second clause of his will he disposed of and bequeathed the use, rents and profits of his country place at Mount Pleasant, consisting of about seventeen acres of land and all the improvements thereon, to his daughter for fife. At her death it was to become part of his residuary estate. His exact words are: “ and after her decease said property shall become a part of my residuary estate.”

The testator directed his residuary estate to be divided into “ two equal parts ” and disposed of one of such parts by the eighth clause of his will, which read as follows:

Eighth. I will and direct that the remaining part or share in the seventh article named be, by my said Executors or the survivor of them divided into as many shares as there shall be children of my said deceased brother, surviving me, and be securely invested in the manner as provided in said seventh article and that the net income of each part or share shall be applied to the support of the child represented by its share, during the natural life of such child and that the principal of each share be paid over to the lawful issue of the child represented by it, if any such issue there be, in equal proportions; and in case of the death of either of such children without lawful issue then I direct that the share of such child be made over to the surviving child, its heirs or assigns.”

The life tenant, Ella B. Parsons, died March 19, 1924. The Mount Pleasant property, disposed of by the second clause of the will, thereupon passed into the residuary estate, or to be more exact, became a part of the residuary estate. One-half of it passed under clause eight. The children of the testator’s brother, surviving the testator, were Edward D. Parsons and Katharine Parsons, now Katharine Murphey. The net income from this half of the Mount Pleasant property was to be paid, therefore, to these two children. Edward, however, had predeceased the life tenant, dying on the ninth day of March, 1894, leaving three children, Eleanor R. Parsons, now Eleanor R. Tomlinson, John T. Parsons and Harriet E. Parsons, now Harriet E. Watt. These children took the share of their father under this eighth clause of the will, or one-half of that part of the residuary estate disposed of by this paragraph. The father Edward, however, was given the net income for his support during his natural life, while the principal at his death was payable to his children. Eleanor Tomlinson, John T. Parsons and Harriet E. Watt, therefore, take one-fourth of the Mount Pleasant property, or one-twelfth each.

This is the plain direction of the will, which apparently has been overlooked or unprovided for in the decree of the Surrogate’s Court. It may be that this was the understanding of the parties, and that the only matter litigated was the question arising under paragraph seven of the will. However, the appeal has brought this matter up for review, and as the respondent claims the property disposed of under this second clause of the will, we must open or modify the -judgments below so as to provide for this portion of the residuary estate.

No other portion of the residuary estate disposed of under the eighth clause of the will is before us, and we do not attempt to pass upon its disposition.

As to the half portion of the residuary estate disposed of by the seventh clause of the will, we' agree with the interpretation put upon this clause by the lower courts. The testator’s daughter, Ella, having died without issue, and her life estate in this one-half part having terminated, the principal passed under the last clause of the seventh paragraph, reading and in case she shall die without lawful issue, I will and direct, that the share so appropriated for her be divided equally among the surviving children of said deceased brother.” The daughter, the life tenant, having died without lawful issue,' the residuary passed to Katharine Murphey, the only child of the testator’s deceased brother John, who survived the life tenant. The appellants insist that the words “ surviving children ” refer to those surviving at the time of the testator’s death, and not at the time of the life tenant’s death, and there is argument which can be made for this claim. The testator was a lawyer who knew the meaning and force of legal terminology, and we find him using words with some exactness. When his own death is referred to, it is expressed in language as to which there can be no misunderstanding. For instance, in the eighth clause, above quoted, wherein he disposed of the other half of the residuary estate, he gives the income to the children of my deceased brother surviving me.” These words surviving me ” are not used in the preceding, or seventh paragraph, wherein he disposes of the other half of the residuary estate. He divides it equally among the surviving children of my deceased brother.” By this seventh paragraph he had given the income of this half of the residuary estate to his daughter Ella for life, remainder to her children. His main purpose was that his daughter and her children should have it all. If children failed to survive Ella, then the remainder was to go" to the surviving child of his deceased brother. In view of all the circumstances, we think the time of survivorship was the death of his daughter Ella. The testator, by other portions of his will, had apparently given some property of value to his nephew Edward, which would pass in all events to Edward’s children.

We are, therefore, of the opinion, that the courts below were right in giving this part of the residuary estate under paragraph seven to Katharine P. Murphey. The order of the Appellate Division and the decree of the surrogate should, therefore, be modified in accordance with this opinion, and as so modified affirmed, with costs to appellants in this court and the Appellate Division, payable out of the estate.

Hiscock, Ch. J., Pound, McLaughlin, Andrews and Lehman, JJ., concur; Cardozo, J., absent.

Ordered accordingly.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    Frank Salomone, as Administrator of the Estate of Frank Salomone, Deceased, Respondent, v. Yellow Taxi Corporation, Appellant.
    Negligence — trial — charge — taxicab found in ‘river — action to recover for death of one last seen alive riding therein — inference that intestate was a passenger question for jury — credibility of witnesses for jury — -erroneous charge — doctrine of res ipsa loquitur not applicable — inference of negligence cannot be inferred from failure of defendant to explain accident.
    1. Where, in an action to recover for the death of plaintiff’s intestate, who was last seen alive in one of defendant’s taxicabs, which three months thereafter was fished out of the East river where intestate, the driver and another who was in the taxicab were found drowned, it appears that intestate who had met with a party of friends at a store in the borough of Manhattan, of which the driver of the taxicab was one, he not being called there in the line of his work but stopping there to meet with his friends, left with two others and the driver shortly before eleven o’clock at night in the taxicab, intestate directing the driver to take him to his home in Long Island City and inviting the others to go with him, but that one of the party refused to go and got out at his home, without paying any fare, it is just as reasonable to infer that the driver was taking his friends home as an accommodation as it is to infer that he was hired merely as a chauffeur and was to be paid accordingly. The fact that some of the witnesses said that the chauffeur turned the flag down, indicating that fare was to be collected, is not conclusive. Their credibility was for the jury.
    2. It was, therefore, error for the trial justice to instruct the jury that as matter of law intestate was a passenger in defendant’s taxicab. It was not a question of law for the court but should have been left for the jury to determine.
    3. It was also error for the trial justice to charge the doctrine of res ipsa loquitur as applicable, assuming as a fact that intestate was a passenger in the taxicab and instructing the jury that if the chauffeur drove the ear off the dock and defendant could not explain it, plaintiff was entitled to recover. In cases of this kind dealing with inferences and presumptions, it is the jury and not the judge which is to draw the inference and determine the effect of presumptions. It is not the accident which alone and of itself may raise the presumption of negligence. It is the accident accompanied by all the surrounding circumstances.
    4. In any event the facts and circumstances in this case are not such that the rule of res ipsa loquitur applies, nor can any inference of negligence be inferred or presumed from the failure of the defendant to explain the accident.

      Salomone v. Yellow Taxi Corporation, 215 App. Div. 790, reversed.
    (Argued March 2, 1926;
    decided March 30, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 31, 1925, affirming a judgment in favor of plaintiff entered upon a verdict.

      Abel E. Blackma/r for appellant.
    The court erred in his charge to the jury. The presumption of negligence does not arise from the mere fact of injury. (Holbrook v. Utica & Schenectady R. R. Co., 12 N. Y. 236; Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y. 534; Hoffman v. Third Avenue R. R. Co., 45 App. Div. 586; Plumb v. Richmond L. & R. R. Co., 233 N. Y. 285; Seybolt v. N. Y., Lake Erie & W. R. R. Co., 95 N. Y. 563; Loudoun
      v. Eighth Ave. R. R. Co., 162 N. Y. 380; Breen v. N. Y. Cent. & H. R. R. R. Co., 109 N. Y. 297; Stierle v. Union R. R. Co., 156 N. Y. 70; Griffen v. Manice, 166 N. Y. 188; Scott v. London Dock Co., 3 H. & C. 596.) The court erred in declining to dismiss the complaint upon the whole evidence on the ground that there was no evidence from which negligence of the defendant or its employees could be inferred. (Moscato v. Line, 164 App. Div. 412; Fearick v. Lehigh Val. R. R. Co., 210 App. Div. 742; Wicks v. Cowperthwait Co., 203 App. Div. 705; Searles v. Manhattan R. R. Co., 101 N. Y. 661; Ruppert v. Bklyn. Hgts. R. R. Co., 154 N. Y. 90; Ruback v. McCleary, 220 N. Y. 188; Francey v. Rutland Railroad Co., 222 N. Y. 482.)

      Avel B. Silverman, Charles Goldenberg and Benedict A. Leerburger for respondent.
    In view of the undisputed facts, the charge of the court was without error. (Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 563; Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297; Markwold v. Oceanic Steamship Navigating Co., 11 Hun, 462; Edgerton v. N. Y. & H. R. R. Co., 39 N. Y. 227; Maslenka v. Brady, 188 App. Div. 661; People v. Martin, 235 N. Y. 550.) The evidence was sufficient to justify a verdict for the plaintiff. (Brown v. Nassau Electric Railroad Co., 209 N. Y. Supp. 205.)
   Crane, J.

On or about the 30th day of April, 1923, the body of Frank Salomone was found drowned in the East river off the foot of Broadway, Astoria. The last time he had been seen alive was on the night of February 7, 1923, in the borough of Manhattan.

The Yellow Taxi Corporation has been held liable for his death on the finding that its chauffeur ran one of its taxicabs with Frank Salomone inside, off the dock at the foot of Webster avenue, in Long Island City.

As no one saw the accident, and as the whereabouts of the taxicab and Frank Salomone was not discovered for a period of three months, the recovery has been obtained below upon inferences and presumptions arising from the known facts. The question here presented on appeal is whether those inferences and presumptions are reasonable under the charge as delivered by the trial justice.

Frank Salomone lived with his sister at 768 Vernon avenue, Long Island City." This was between the cross streets, Washington and Webster avenues. Webster avenue crossed Vernon avenue and ran to the river. Blackwells Island is just opposite this point. The East river is distant about 723 feet from Vernon and Webster avenues. The plaintiff’s intestate, therefore, lived on Vernon avenue, which ran parallel with the East river and about three blocks therefrom. The deceased had lived in Long Island City between two and three weeks, having resided before that at 314 East Sixty-second street, Manhattan. At the time of the alleged accident, Frank Salomone was twenty-three years of age, and an automobile mechanic by occupation. He was also, according to his sister’s testimony, a taxi chauffeur.” The deceased had friends in Manhattan, and on the night of February 7, 1923, they met in the candy store of Benjamin Ross, 304 East Sixty-second street. In the store at the time were Dominick J. Annette, a chauffeur named Caniano, Nick Tagliamonti, Frank Candella, Frank Salomone, the deceased, and a few more of .the boys.” Caniano was a driver for the defendant. He drove a yellow taxicab, and on the night in question it was outside near the candy store, while he, Caniano, was in with the boys.” Caniano was no stranger to them. The plaintiff’s principal witness, Annette, testifies:

“ Q. How long had you known Caniano? A. I knew Caniano, well, pretty near all his lifetime. We were brought up together.
“ Q. How long had you known Mossioli? A. Mossioli; I knew him about fourteen years.
“ Q. And Mr. Salamone? About thirteen.”

Mossioli was of the party, the witness Annette meeting him in front of the store. This meeting of these friends occurred about ten-thirty in the evening. Frank Salomone, Annette and Billy Mossioli got in Caniano’s taxicab, which as I have said, was in front of the candy store. Caniano drove his friend Annetté home to Fifty-eighth street. Annette there left the taxicab, and this is the last anybody knows about it until it was fished up three months afterwards from the East river at the foot of Webster avenue.

Annette testified that Frank Salomone said to Nick Caniano, the chauffeur:

“ Drive me over to Webster and Vernon Avenue, and drive up one block and stop at the big white stone house at Vernon Avenue.
• “ Q. Tell me, when the three of you men got into the cab what, if anything, did the chauffeur do with respect to the flag? Do you know what I mean by that? A. He threw the flag down; Nick Caniano threw the flag down. * * * Well, throwing a flag down is when somebody steps into the cab and you want the amount to register on the meter and you throw the flag down.”

When the witness got out at his home in Fifty-eighth street, he did not pay any fare to Caniano.

It does not appear where Mossioli lived. He too went to Long Island City with Frank Salomone, for he was also drowned and his body found later in the East river. Was he going to his home, or was he going home with Frank Salomone; and was the chauffeur Caniano one of the party? This must be left to inference. Annette was asked this question:

“ Did you tell anybody, in words or substance, that you then started to take Salomone home as Salomone had been out all night before? A. I don’t remember.”

Tagiiamonti was of the party in Ross’ candy store, and he testified for the plaintiff. He had known Frank Salomone for about thirteen years. That night Salomone came for him at his home, 314 East Sixty-second street, and they went down to the candy store about quarter of ten. The taxicab was there outside the store, and Nick Caniano, the taxi driver, was inside the store. It is apparent, therefore, that Frank Salomone did not summon the taxicab, and that Caniano, the chauffeur, had not come to the candy store for Salomone or at his call. These young men left the candy store about quarter of eleven, Salomone, Mossioli and Annette getting in the taxicab. The witness heard Salomone tell Caniano to take him home to Vernon avenue, and saw the chauffeur put his hand on the clock.

Another witness, Frank Candella, was also in this candy store, 304 East Sixty-second street, on the evening of February 7, 1923, and testified as follows:

“ Q. Who else was in that store besides you and Salomone? A. Billy Mossioli, Dominick Annette, Nicholas Tagliamonti, Nick Caniano, and quite a few of the other boys.”

Caniano was, therefore, one of the boys. These people were his friends, and he was of this party with Frank Salomone, according to this witness.

Where were these friends going? They left the candy store, according to this witness, at five minutes to eleven. He testifies: “ I went outside with them, and Frank Salomone asked me to go with them, so I said ‘No; it’s too late.’ ”

To whom did Frank Salomone refer by the word “ them? ” The witness tells us; Nicholas Caniano, Frank Salomone, and Billy Mossioli. Where were the three going that caused this witness to think it was too late to go with them? He says, referring to Salomone, “ He still insisted on me going with him.

“ Q. What did he do to the chauffeur? A. He said, ‘ Take me to Long Island City, where I five.’ * * * ‘ Take me to Vernon Avenue ’— and I don’t remember the other street. Vernon and Webster, that’s it. * * * When I seen him enter the cab Frank insisted upon me going with him, and I says, ‘ No.’ Then I closed the door, and the chauffeur then pulled down his flag, and started towards Second avenue.”

This witness, Candefla, lived in First avenue, Manhattan. Where did Frank Salomone want to take him?

In the clothing of Frank Salomone, when he was taken out of the East river, were found his chauffeur’s license and his chauffeur’s badge.

The very first question that arises in this case is whether or not Frank Salomone was a passenger for hire in the defendant’s taxicab on this night in question. Had he hired the cab; had he employed Caniano to drive him home; was he a paid passenger, or was it a joy ride? If the latter, the defendant is not Hable. The Yellow Taxi Corporation is answerable for the acts of Caniano when acting as its servant in the course of his employment. It is not liable if he were accommodating his friends.

Here was a party of friends meeting at a candy store from ten till eleven o’clock in the evening. The witnesses refer to them as the boys.” Caniano was one of the boys. So far as the evidence shows, he was not called to the candy store in the line of bis work. He stopped in there to meet with his friends. He had no call to come there. Frank Salomone did not summon him. He, with Salomone and two others, left the candy store to go to Salomone’s home; Salomone asked another friend to join them. One of the party was taken to his home in Fifty-eighth street and got out without paying any fare.

What are the reasonable inferences to be drawn from these facts? I think it is just as reasonable to infer that Caniano was taking his friends home as an accommodation, as it is to infer that he was hired merely as a chauffeur and was to be paid accordingly. The fact that some of these witnesses said that the chauffeur turned the flag down, indicating that fare was to be collected, is not conclusive. The testimony of these witnesses, in view of their connection with the case and with the parties, and of the improbabilities of some parts of their story was to be submitted to the jury for its scrutiny, examination, and acceptance or rejection, in whole or in part. The credibility of the witnesses who were of that party on that night was for the jury.

If this be correct, then the trial justice was in error in his charge to the jury. <■ He told them that as matter of law Frank Salomone was a passenger in defendant’s taxicab. His words are:

The proof in this case is that this man was a passenger in the defendant’s cab, being operated by the defendant’s chauffeur.
“ The fact that the deceased knew the defendant’s chauffeur doesn’t make any difference at all in the legal question. It is just the same as if he was a total 'stranger. He was a passenger in the defendant’s cab, and if he lost his life through the carelessness of the chauffeur, then this defendant must pay whatever damage you think is proper.”

To this charge an exception was taken. The jury should have determined whether Salomone was a passenger. It was not a question of law for the court. The jury might have drawn the inference that Caniano was of the party, using the taxi to drive his friends about. The exception presents reversible error.

The justice charged the doctrine of res ipsa loquitur as applicable to this case. He assumed as a fact, as I have already stated, that the deceased was a passenger in the taxicab. He in substance told the jury that if the chauffeur drove the car off the dock and the defendant could not explain it, the plaintiff was entitled to recover. The charge reads as follows:

“ The law says that when any person.or corporation, taxicab or railroad or bus or whatever it may be, carries people for hire, becomes a public carrier, a common carrier, as we call them — carries people for hire — and an accident happens while you are in the public conveyance, that the person who is injured or the family of the person who is killed doesn’t have to prove what it is that caused the accident or death, but that if an accident happens and an injury is received or death results while a person is a passenger in a public conveyance, that then it is the duty of the people who maintain the public conveyance to show that the accident happened without fault on their part; and if they can’t do that they must pay the bill, whatever the fair damage is.”

To this charge an exception was taken. Here also we think the judge trespassed upon the province of the jury, and decided matters which the law must leave to them. In cases of this kind dealing with inferences and presumptions, it is the jury and not the judge which is to draw the inference and determine the effect of presumptions. It is not the accident which alone and of itself may raise the presumption of negligence. It is the accident accompanied by all the surrounding circumstances. The circumstances and the events leading up to the accident may overcome any presumption of negligence which might otherwise arise. Even when there be a presumption of negligence arising from a failure upon the part of a common carrier to explain how an accident happened, it is for the jury to say whether the • presumption, which is only prima facie evidence of negligence, entitles the plaintiff to a verdict. Upon a prima facie case, the jury may find for the plaintiff; they are justified at law in so finding, but they are not compelled to award damages. The remoteness of the accident from the conclusion which a reasoning mind would draw from the defendant’s failure to explain, may always be taken into consideration. That is, a failure to explain does not necessarily indicate negligence. For instance, the defendant comes into court in this case, and is apparently ignorant of how this accident happened; it has not and cannot offer any explanation. Yet the fact is that its yellow taxicab, of which Caniano was chauffeur, at some time and under some circumstances went into the East river, and Caniano and the two men with him were drowned. Does this in and of itself raise the pre-^ sumption of negligence, compelling the defendant to pay damage because the defendant cannot give an explanation of the accident, or show that Caniano was not negligent?

This all depends upon the circumstances, not entirely upon the accident, or the drowning. The jury are not bound to presume negligence from the absence of an explanation, but given all the surrounding circumstances, they may or may not infer it, according to the force and weight of those circumstances. What are the circumstances in this case? I have stated some; let me state others.

No one knows what happened. The car and these men were last seen at eleven o’clock on the night of February 7, 1923, at Fifty-eighth street, Manhattan. The driver was told to go to Vernon avenue, Long Island City, where Salomone lived. Three months afterwards the car and the men were found in the East river. Salomone was a chauffeur; Caniano was a chauffeur; they were friends. That evening they had been together in Ross’ candy store in Sixty-second street, Manhattan. They were some of the boys ” who met at this place. It is reasonable to infer that Salomone was taking his friends somewhere, for Mossioli went along with him, and he invited Candella, who refused to go. The testimony is that Salomone lived in Vernon avenue, about three blocks, or to be exact, 723 feet from the river. The taxicab did not go to his house, but turned. Webster avenue runs at right angles to Vernon avenue, and if the car turned from Vernon avenue into Webster avenue, what was Salomone doing all the time it was traveling three blocks into the river? He must have known where he lived and the direction to get there. The fact is, nó one knows where these three men went after they left Fifty-eighth street, New York city, or which way they drove to reach the dock, or at what time of day or night they went off the dock. No one knows whether or not they stopped anywhere else on the way to Long Island City or in Long Island City. Even the testimony of the witnesses, the friends of Salomone, to the effect that Salomone told Caniano to drive to his home, was a story which the jury were not obliged to believe.

Under all these circumstances, the jury was called upon to infer that Caniano drove Salomone as a passenger directly from Fifty-eighth street to Long Island City; that he turned into Webster avenue by mistake instead of continuing up Vernon avenue; that he drove three blocks, or 723 feet into the East river over a stringpiece twenty inches high. The river, as the testimony shows, could have been clearly seen and distinguished that night all the way from Vernon avenue. Not only must the jury infer all these facts from the mere statement that Salomone told the chauffeur to drive him home, and from the fact that the men were found drowned three months afterwards, but the judge has also told them that because of the drowning in the taxicab, and the failure of the defendant to explain the accident, the taxicab company must pay damage. He said: If death results while a person is a passenger in a public conveyance, * * * it is the duty of the people who maintain the public conveyance to show that the accident happened without fault on their part; and if they can’t do that they must pay the bill.”

This is not the law. (Griffen v. Manice, 166 N. Y. 188.)

If this be a case in which inferences of negligence may be drawn upon the strength of inferences as to how the accident happened, the jury should at least have been told that they were the ones to draw the inference, and that the law did not compel them to determine that there was neglience. They should have been told that from all the circumstances, if they believed the witnesses, they would be justified in presuming neglience on the part of Caniano. Whether or not they should draw such an inference was a matter for their determination. On the other hand, is it not reasonable to presume or to infer that these three friends starting out from New York were acting in concert; that they were going somewhere with Salomone, for a joy ride or on a pleasure party, or to his home; and that when they came to Webster avenue, they were doing something which made them all oblivious to their whereabouts, or else they were all in a condition that they did not know where they were going? I think that this is as fair and as reasonable an inference to be drawn from the evidence as to infer that Caniano was a negligent chauffeur who drowned his passengers.

However, I for one do not think the facts and circumstances in this case are such that the rule of res ipsa loquitur applies, or that any inference of negligence can be inferred or presumed by the failure of the defendant to explain this strange accident. My conclusion, therefore, is that the judgments below should be reversed, and the complaint dismissed, with costs in all courts.

His cock, Ch. J., Pound, McLaughlin, Andrews and Lehman, JJ., concur; Cardozo, J., absent.

Judgments reversed, etc.


text:
    Nellie Sheehan, Respondent, v. The East 98th Street Corporation, Appellant. Thomas Sheehan, Respondent, v. The East 98th Street Corporation, Appellant.
    Negligence — landlord and tenant — tenement houses — charge — action to recover for injury to tenant from fall on stair landing — erroneous charge as to duty of artificially lighting hall.
    Where actions to recover for personal injuries, alleged to have been sustained by a tenant through a fall upon a stair landing in a tenement house owned by defendant, were brought solely upon the theory that the hallway was not lighted as required by the Tenement House Law (Cons. Laws, eh. 61), and the court erroneously charged that the defendant was required by the statute to have a light in the hall but thereafter charged the requirements in the words of the statute to the effect that if, in the opinion of the tenement house department the hall was not sufficiently lighted, it was defendant’s duty to keep a light burning, yet, in the absence of evidence that the tenement house department had required it, refused to charge that there was no violation of the statute with respect to having artificial light, a new trial must be ordered. The question of artificial light tended to confuse the issue. The charge should have eliminated it altogether, and left the jury with the single proposition of determining the defendant’s negligence from failure to observe the other provisions of section 74 of the Tenement House Law.

      Sheehan v. Bast 98lh Street Corp., 215 App. Div. 680, reversed.
    (Argued March 3, 1926;
    decided March 30, 1926.)
    Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 13, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      F. A. W. Ireland for appellant.
    The court erred in declining the several requests to charge. (Lindsley v. Stern, 197 N. Y. Supp. 106; Brugher v. Buchtenkirch, 176 N. Y. 153; Hilsenbeck v. Guhring, 131 N. Y. 674; Kunder v. Purchase Holding Co., 188 App. Div. 94; Rosenzweig v. Klippel, 81 Misc. Rep. 247; Stacy v. Shapiro, 212 App. Div. 723; Muller v. Minken, 55 Misc. Rep. 444.)

      Samuel F. Moran, Martin E. Burke and John D. Munroe for respondents.
    Appellant’s violation of the statute had such connection with the injuries complained of as to constitute evidence of its negligence for the consideration of the jury; and appellant’s requests to charge would, to respondents’ prejudice, have prevented the jury from considering this evidence, and were properly denied. (Bornstein v. Faden, 149 App. Div. 37; 208 N. Y. 605; Lather v. Banmann, 122 App. Div. 13; Gallagher v. Murphy, 221 Mass. 363; Faxon v. Butler, 206 Mass. 500; Kelley v. N. Y. State Railways, 207 N. Y. 342; DiCaprio v. N. Y. C. R. R. Co., 231 N. Y. 94; Martin v. Herzog, 225 N. Y. 164; Amberg v. Kinley, 214 N. Y. 531.)
   Crane, J.

On March 11, 1922, at about two o’clock in the afternoon, Nellie Sheehan fell down the cellar stairs in a tenement house at 124 East Ninety-eighth street, borough of Manhattan, city of New York. She had lived in the house eighteen years, and her apartment was on the ground floor on the right-hand side.

On the left-hand side of the public hallway on this ground floor, about fifteen feet back from the main entrance, there was a door which opened onto the top landing of the cellar stairs. The landing was a little below the level of the hallway floor. As the plaintiff • stepped from the hallway onto the landing, she slipped on some refuse and was injured.

No complaint is made of any danger arising from the • refuse on the landing. The plaintiff and her husband have brought these actions claiming that the hallway was dark through the defendant’s negligence, and failure to light it in accordance with the Tenement House Law (Cons. Laws, ch. 61.)

From judgments in the plaintiffs’ favor, the defendant has appealed, pointing out errors on. the trial, which it insists are of a substantial nature, requiring reversal.

The question of light being the only question of the defendant’s negligence in the case, the court stated in the charge to the jury that the Tenement House Law required the defendant to do the following:

“And it further goes bn to say that in every such house, a proper light shall be kept burning in the hallway near the stairs upon each floor, as may be necessary, from sunrise to sunset. Now, what is the object of that? I will read to you just what the courts have said on the subject. The Legislature, in enacting this Statute, contemplated by the use of the words ' proper light,’ that the light to be maintained in the lower hallways and near the stairs on the entrance floor should be sufficient to light the entire lower stairway ’ (that means the stairway in the hall), ‘ and to enable people lawfully using the stairs by exercising proper care to see the steps and avoid stumbling or missing their foothold.’ That is the reason for the light and that is the reason why the Legislature made the law.”

To this charge no exception was taken, although it was concededly wrong, as the Tenement House Law only requires the owner to maintain a light when the tenement house department has ordered its installation. Section 74 of the Tenement House Law, in force at the time, reads in part as follows:

In every such house where the public halls and stairs are not provided with windows opening directly to the street or yard, and such halls and stairs are, in the opinion of the department, charged with the enforcement of this chapter, not sufficiently lighted, the owner of such house shall keep a proper light burning in the hallway, near the stairs, upon each floor, as may be necessary, from sunrise to sunset.”

By requests to charge, this error was partially corrected, but we do not think it was sufficiently straightened out so that we can fairly say that the defendant has had such a trial as the law contemplates upon a contested issue of fact. Whatever confusion may arise regarding the facts, there should be no confusion or misunderstanding regarding the law, which a jury must apply to the facts. The defendant’s lawyer asked the court to charge as follows:

“ Now I ask your LLonor to charge this paragraph of Section 74 of the statute, part of which you read:
“ ‘ In every such house where the public halls and stairs are not provided with windows opening directly to the street or yard, and such halls and stairs are, in the opinion of the Department, charged with the enforcement of this chapter, not sufficiently lighted, the owner of such house shall keep a proper light burning in the hallway, near the stairs, upon each floor, as may be necessary, from sunrise, to sunset.’ ”

The court granted the request.

Another request:

I ask your Honor to charge the jury that there is no evidence in this case that the Tenement House Department has requested or required the defendant in this case to keep a light burning in the hallway.
Mr. Burke: No objection to that.
The Court: I so charge.”

Then we have the following:

Now I ask your Honor to charge the jury that in view of the charge you have just made, there is no violation of the statute on the part of this defendant with respect to having artificial light, because there is no evidence in the case that the Tenement House Department requested it.
“ The Court: Declined in the language of the request except as already charged in the main charge.” To this refusal an exception was taken.

In his main charge, as I have above quoted, the judge told the jury that the defendant was obliged to have a light in the hall, and that the statute required it. This is an error, for such is not the law, and the respondent frankly concedes that it is not the law. Although the court, upon request, charged the requirements in the words of the statute, and stated that the department-had not ordered a light, yet he refused to charge that there was no violation of the statute on the part of the defendant with respect to having artificial light. What could the jury understand from this? I do not know.

The question of artificial fight should not have been brought into the case as an element of negligence. It tended to confuse the issue. The charge should have eliminated it altogether, and left the jury with the single proposition of determining the defendant’s negligence from failure to observe the other provisions of section 74 of the Tenement House Law. As the defendant was entitled to this, and as it must remain uncertain whether or not the jury so understood it, a new trial must be had.

The judgments in both cases should be reversed and new trials granted, with costs to abide the event.

His cock, Ch. J., Pound, McLaughlin, Andrews and Lehman, JJ., concur; Cardozo, J., absent.

Judgments reversed, etc.


author: Andrews, J.

text:
    H. R. & C. Company, Inc., et al., Appellants, v. Eleanor M. Smith et al., as Administrators of the Estate of George D. Smith, Deceased, Respondents, Impleaded with Another.
    Judgment — names — “Bess” identical with “ Elizabeth ” — judgment docketed against “Bess Hedges” a lien upon property of “ Mary Elizabeth Hedges ” where it is found upon sufficient evidence that she had elected to drop the name of “ Mary ” and use that of “ Elizabeth.”
    By immemorial usage the name “ Bess ” is recognized as identical with “ Elizabeth.” A judgment, therefore, docketed against “ Bess Hedges ” constitutes a lien upon property of “ Mary Elizabeth Hedges ” where there is evidence sufficient to support a finding that she did and was known to do business as “ Elizabeth ” and as “ Bess Hedges ” and desired and elected to drop the name of ‘ Mary ” and to retain and use the name of “ Elizabeth ” only.

      H. B. & C. Co. v. Smith, 212 App. Div. 173, affirmed.
    (Argued March 2, 1926;
    decided March 30, 1926.)
    Appeal from a judgment, entered March 23, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint upon the merits.

      Henry M. Bellinger for appellants.
    The Smith judgment entered and docketed against Bess Hedges never became a lien upon the real property of plaintiffs’ predecessor in title, Mary Elizabeth Hedges. (Osborn v. McCloskey, 55 How. Pr. 345; Fisher v. Hetherinton, 11 Misc. Rep. 575; Schoelkoff v. Ohineis, 11 Misc. Rep. 253; Cooper v. Burr, 45 Barb. 9; Van Voorhis v. Budd, 39 Barb. 479; Eagleston v. Son, 5 Rob. 640; Franklin v. Talmadge, 5 Johns. 84; Gardiner v. People, 6 Park. Cr. Rep. 155; Cornes v. Wilkin, 79 N. Y. 129.) The real property formerly belonging to plaintiffs’ predecessor in title, Mary Elizabeth Hedges, cannot lawfully be sold under judgment and execution against Bess Hedges, even though actual identity existed. (Smith v. Jackson, 20 Abb. N. C. 422; Upham v. Cohen, 14 Civ. Pro. Rep. 27; Farnham v. Hildreth, 32 Barb. 278.)

      Alfred Hayes and Robert F. Greacen for respondents.
    The Smith judgment entered against Bess Hedges, a diminutive for Elizabeth, by which the defendant was known, was binding upon her and created a lien against land, title to which was in the name of Elizabeth Hedges. (Smith v. United States Casualty Co., 197 N. Y. 420; Styles v. Scotland & Co., 22 N. D. 469; Clute v. Emmerich, 26 Hun, 10; 99 N. Y. 342; Jackson v. Bonsham, 15 Johns. 226; Stuyvesant v. Weil, 167 N. Y. 421; Hellreigel v. Manning, 97 N. Y. 56; Wilson v. Turner, 81 Ill. 402; Goodell v. Hall, 112 Ga. 435; Walter v. State, 105 Ind. 589; Weaver v. McElhenon, 13 Mo. 89.)
   Andrews, J.

The original name of a Mrs. Hedges was “ Mary Elizabeth.” It is found, and while the evidence is slight it is sufficient to support the finding that she did and was known to do business as Elizabeth ” and as “ Bess Hedges,” and desired and elected to drop the name of “ Mary ” and to retain and use the name of “ Elizabeth ” only. This she might do, and Elizabeth Hedges ” became her name, (Smith v. U. S. Casualty Co., 197 N. Y. 420.) A creditor now represented by the respondents obtained a judgment against “ Bess Hedges.” It was so docketed in Kings county. The question before us is whether this judgment became a lien upon the real estate of Mrs. Hedges in Brooklyn. If it did, the result reached in the court below should be affirmed.

The appellants have acquired title to the property through the foreclosure of a mortgage given by Mrs. Hedges, before this judgment was obtained, but the judgment creditor was not made a party to the proceeding. What they or the mortgagee knew or should have known as to the change of name of Mrs. Hedges or as to the fact that a judgment existed against her is immaterial. If the judgment was properly docketed it became a lien on the property in question. If not, there was np lien, for except as provided by statute, a mere judgment is never a lien against the real estate of the judgment debtor. We confine ourselves, therefore, to this precise question.

In New York the history of judgment liens is a long one. To go back but to 1852, section 282 of the Code of Procedure provided that such a judgment when docketed became a lien on the real estate in the county “ of every person against whom such judgment shall be rendered.” In 1881 section 1251 of the Code of Civil Procedure made a docketed judgment a lien against the real property in the county which the judgment debtor has. In 1902 we find the same clause but with a limitation, except that any judgment rendered having the name or any part of the name of the judgment debtor designated as fictitious, shall not bind or be a charge upon the real property * * *' of any person.” The judgment, however, might be amended by the insertion of the true name and thereafter become a hen. (Code Civil Procedure, sec. 1251.) Again in 1905 came another change making the statute read as it now stands and stood at the time of these transactions. A docketed judgment is a lien upon the real property of the debtor, provided, however, it' shall not bind or become a charge upon such real property “ unless and until he is designated by his name in a docket of such judgment.” A provision for amendment of the judgment was also included.

Obviously one purpose at least of these limitations was to insure certainty in determining whether or not real property was incumbered by any lien by way of judgment. The docket was under the initial of the surname of the debtor (Code Civil Procedure, sec. 1246), in columns (Code Civil Procedure, sec. 1245) and in alphabetical order. Even so the statute may not accomplish its purpose completely. What we must decide is whether “ Bess Hedges ” is the name of the former owner of the property in question.

Many diminutives or contractions of proper names are in ordinary use. Some are as well recognized as standing for and representing the longer form as would the arrangement of lines and symbols which we interpret as “ Mary ” represent that name. They and the full name are synonymous. By every one and everywhere they are so understood. They equally identify the person referred to. Of others, the same thing may not be said. There is no such general agreement as to their meaning. Perhaps they are more truly nicknames, used by friends and relatives, not by the public. Such, for instance are “ Cliff ” for “ Radcliffe,” “ Ganz ” for “ Gansevoort,” “Will” for “Wilbur” or “Wilfred,” “Minnie” for “ Wilhelmina,” “ Sibel ” for “ Isabella.”

To the former class belongs “ Bess ” for “ Elizabeth.” For centuries the two forms have been considered equivalents. Nor is “ Bess ” itself an individual recognized name. If ever a child is so christened it is through ignorance, carelessness, eccentricity or because of some sentimental association. If as is the case, by immemorial usage “ Bess ” is recognized as identical with Elizabeth ” then “ Bess Hedges ” is equally with Elizabeth Hedges ” the name of the judgment debtor. And if it is her name a judgment docketed against “ Bess Hedges becomes a lien upon the property of “ Elizabeth.” If two names are in original derivation the same, and are taken promiscuously to be the same in common use, though they differ in sound yet there is no variance.” (Bacon’s Abridgement, Title Misnomer & Addition.) In Thomas v. Desney (57 Iowa, 58) the court after substantially quoting the above adds: “ ‘ When two names are derived from the same source, or when one is an abbreviation or corruption of the other, but both are taken by common use to be the same, though differing in sound, the use of one for the other is not a misnomer.’ * * * as Elizabeth, Bettie and Bessie, or Sarah, Sara and Sally.” In that case the judgment was docketed against Ellen and it was held not to be a hen on the property of Helen. The two names were not used interchangeably nor was one an abbreviation or corruption of the other.

In this State we have found no case directly bearing on the question. Elsewhere, while there is no agreement the weight of authority sustains the conclusion to which we have come. Besides Thomas v. Desney (supra) we refer to Lessee of Gordon v. Holiday (1 Wash. C. C. 285), as to Harry and Henry; Walling v. State (13 Ala. A. C. 253), as to Willie and William; Burley v. Griffith (8 Leigh [Va.], 442), as to Bill and William; Styles v. Scotland & Co. (22 N. D. 469), as to Charlie and Charles; Sparks v. Sparks (51 Kans. 195), as to Dan and Daniel; State v. Watson (30 Kans. 281), as to Molly and Mary; Burns v. Ross (215 Penn. St. 293), as to Frank and Francis; Walter v. State (105 Ind. 589), as to Jack and John; Stephenson v. Cone (24 S. D. 460), as to Ed and Edward; Galliano v. Kilfoy (94 Cal. 86), as to Rose and Rosa; Alsup v. State (36 Tex. Cr. Rep. 535), as to Bob and Robert; and more doubtful Goodell v. Hall (112 Ga. 435), as to Eliza and Elizabeth.

To the contrary are Ohlmann v. Clarkson Sawmill Co. (222 Mo. 62), as to Mike and Michael, but “ Mike is not an universally known abbreviation of Michael; ” Kennedy v. Merriam (70 Ill. 228) as to May and Mary, and Garrison v. People (21 Ill. 535), as to Harry and Henry.

The conclusion which we have reached does not create undue difficulties for searchers of the records as to incumbrances on real estate. Docketed, as judgments are, alphabetically under the surname of the debtor, one finding Hedges, Bess ” might well be required to take notice if looking for hens upon property of Hedges, Elizabeth.” And that is the extent of our present decision. We are now concerned but with the use of this one diminutive. Should the question ever arise as to others, we will then consider what should be the answer.

The judgment appealed from should be affirmed, with costs.

His cock, Ch. J., Pound, McLaughlin, Crane and Lehman, JJ., concur; Cardozo, J., absent.

Judgment affirmed.


author: Hiscock, Ch. J.

text:
    In the Matter of the Claim of Christopher E. Pettit, Respondent, against Anna H. Reges et al., Appellants.
    Workmen’s compensation — insurance • — ■ policy insuring only against accident occurring within described premises or incidental to the operation thereof — interpretation of expression “operations not on the premises” — accident occurring in building not included in described premises not covered by insurance.
    1. Provisions of a policy of liability insurance clearly indicate an intent to insure only against accidents occurring within the boundaries of described premises and incidental to the operation thereof, where they specifically enumerate the location of all factories, yards, buildings, premises or other workplaces of an employer, by town or city with street and number, and further provide, “ this employer is conducting no other business operations at this or any other locations not herein disclosed except as herein stated,” and then state the operations covered by the policy to be “ 1. All industrial operations upon the premises. 2. All office forces. 3. All repairs or alterations to premises. 4. Specially rated operations on the premises. 5. Operations not on the premises.” It was not intended by such policy to furnish insurance for the general business of altering, removing or repairing buildings wherever they might be situated.
    2. The expression “ operations not on the premises ” is to be interpreted in the light of the other provisions in the policy and is to be construed as meaning an operation which although not on the premises was still connected with the work there being performed.
    3. An accident, therefore, occurring to an employee while engaged in excavating a cellar under a building not included in any of the premises described in the policy does not come within the coverage thereof and an award of the State Industrial Board will be reversed as to the insurance carrier.

      Pettit v. Reges, 214 App. Div. 749, modified.
    (Argued February 24, 1926;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme; Court in the third judicial department, entered June 16, 1925, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law.

      Everett F. Warrington, Herbert F. Hastings, Jr., and Robert H. Woody for appellant.
    The award of compensation should not have been made against the Columbia Casualty Company as insurance carrier because the location where the accident occurred was not a location listed among the locations of premises of the employers enumerated in item 3 of the declarations upon which the insurance policy in question was issued. (Neubeck v. Doscher, 204 App. Div. 617; Astrin v. East New York Woodwork Mfg. Co., 210 App. Div. 720.)

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondent.
    The insurance carrier in this case conies within the spirit of section 55 of the Workmen’s Compensation Law. It has accepted a premium based entirely upon the man who was killed and yet it seeks to avoid its liability. (Jaabeck v. Crane’s Sons Co., 238 N. Y. 314.)
   Hiscock, Ch. J.

This appeal presents the contention that the policy issued by the defendant, Columbia Casualty Company, did not cover the accident which has been made the basis of an award.

It appears that an employee while in the course of his employment was engaged in excavating a cellar under a building at 306 Grand avenue, Astoria, and there and then received injuries which caused his death. It is found that this employee was employed by the appellant Reges and another, who were'" engaged in the business of maintenance and operation, alteration and repair of buildings with an office and place of business located at 505 First Avenue, New York City.” The specific claim is that the policy furnished insurance only against accidents to employees while they were engaged at work upon and in connection with certain premises described in the policy and among which the property in question was not included. We think that this claim is sustained and that the policy did not cover the accident in question.

The policy after the usual and appropriate provisions for insurance against injuries to employees provides: " This agreement shall apply to such injuries so sustained by reason of the business operations described in said declaration which, for the purpose of this insurance, shall include all operations necessary, incident or appurtenant thereto or connected therewith, whether such operations are conducted at the work places defined and described in said declarations or elsewhere in connection with or in relation to such work places.” And again, “ The premium is based upon the entire remuneration earned during the policy period by all employees of this employer engaged in the business operations described in said declarations together with all operations necessary, incident or appurtenant thereto or connected therewith whether conducted at such work places or elsewhere in connection therewith or in relation thereto.”

When in accordance with these provisions we turn to the provisions of the “ declarations ” which are made a part of the policy it seems to us that they clearly indicate that the policy was intended to furnish insurance for operations upon and in connection with certain enumerated premises and was not intended, as claimed by respondent, to furnish insurance for the general business of altering, removing or repairing buildings wherever they might be situated. In this declaration we find that after various other provisions there is one pertaining to the continuance of the policy and in which it is said that said continuance will exist “as to each of said dates [specified therein] at the place where any operation covered hereby is conducted.” There is then the provision which reads as follows: “ Locations of all factories, shops, yards, buildings, premises or other work places of this employer by town or city with street and number, 505 First Avenue, 504 Second Avenue, 273 Academy Street, 411-413 Webster Avenue and 275 Grand Avenue, ■ Astoria, N. Y.” And again: “ This employer is conducting no other business operations at this or any other locations not herein disclosed except as herein stated. No exceptions.”

The operations covered by said policy are then stated to be: “ 1. All industrial operations upon the premises. 2. All office forces. 3. All repairs or alterations to premises. 4. Specially rated operations on the premises. 5. Operations not on the premises.” The first four clauses clearly did not cover this accident. It is argued that the last provision “ Operations not on the premises ” does cover it and insured against an accident which might happen on other premises than those enumerated as hereinbefore mentioned. We do not think, however, that this is its fair interpretation. The provisions which we have quoted indicate an intent to insure against accidents occurring within the boundaries of the different premises which were described and also against those which were incidental to the operation of those premises. It is said that the agreement “ shall include all operations necessary, incident or appurtenant thereto or connected therewith whether such operations are conducted at the work places defined and described in said declarations or elsewhere in connection with or in relation to such work places.” It was appreciated that a workman who was engaged in the operation of these specific pieces of real estate might have occasion in connection therewith to discharge some duty which was not upon the premises but which nevertheless would be connected with and related to his work there being performed and we think that the expression “ Operations not on the premises ” is to be interpreted in the light of all of these provisions and is to be construed as meaning an operation which although not on the premises was still connected with the work there being performed.

It is not claimed that the work which the employee 'was performing at the time he was injured.had any such relation and, therefore, we think that the accident does not come within the coverage of the policy and that the award of the State Industrial Board and the order of the Appellate Division should be reversed and claim dismissed as to appellant the Columbia Casualty Company, with costs against State Industrial Board in this court and in the Appellate Division.

Cardozo, McLaughlin and Lehman, JJ., concur; Pound, Crane and Andrews, JJ., dissent.

Ordered accordingly.