author: Finch, J.

text:
    May’s Furs & Ready-to-Wear, Inc., et al., Respondents, v. Aaron Bauer, as President of Retail Women’s Apparel Salespeople’s Union, Local 1125, Appellant.

      Argued January 8, 1940;
    decided March 12, 1940.

      Lawrence Kovalsky and Jonah J. Goldstein for appellant.
    The case involves or grows out of a “ labor dispute ” as defined by subdivision 10 of section 876-a of the Civil Practice Act. (Goldfinger v. Feintuch, 276 N. Y. 281; Lauf v. Skinner & Co., 303 U. S. 323; New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552; American Furniture Co. v. I. B. of T. C. & H. of A., 222 Wis. 338; Wallace Co. v. International Asso. M. M. H. L., 155 Ore. 652; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Thompson v. Boekhout, 273 N. Y. 390; Boro Park Market v. Heller, 280 N. Y. 481; Nevins, Inc., v. Kasmach, 279 N. Y. 323; Hydrox Ice Cream Co. v. “ Doe,” 250 App. Div. 770; People ex rel. Sandnes v. Sheriff of Kings County, 164 Misc. Rep. 355.) The injunction should be modified so as to permit peaceful picketing. (J. H. & S. Theatres, Inc., v. Fay, 260 N. Y. 315; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Dickinson v. Springer, 246 N. Y. 203; Wise Shoe Co. v. Lowenthal, 266 N. Y. 264; Fenske Bros. v. Upholsterers International Union, 358 Ill. 239; 97 A. L. R. 1318.)

      Benjamin C. Ribman for respondents.
    The Supreme Court had power to enjoin appellant to the extent set forth in the judgment appealed from. (Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150.) It was established by the weight of the evidence that appellant’s activities deprived it of the rights which a law-abiding labor union should enjoy. It was, therefore, proper to deny appellant the right to picket peacefully. (Remington-Rand, Inc., v. Crofoot, 248 App. Div. 356; 279 N. Y. 635; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Goldfinger v. Feintuch, 276 N. Y. 281.)
   Finch, J.

This is a suit for an injunction restraining a labor union from engaging in any picketing or other acts directed against the business of plaintiff employer. There are two plaintiffs, plaintiff employer and plaintiff association of employees of plaintiff employer. The general manager of plaintiff employer has been the president of the plaintiff association of employees since its inception. Defendant, a labor union, is Local 1125, chartered by the Retail Clerks International Protective Association, which in turn is affiliated with the American Federation of Labor. In referring to the parties hereafter, “ plaintiff ” will mean plaintiff employer, unless it is otherwise specified, and “ International ” will refer to the parent body of Local 1125.

Assuming that there is some evidence to sustain the findings, the following are briefly the facts upon which are predicated the issues of law raised upon this appeal.

Plaintiff operates a retail store for which it engages about 300 employees, a total which is increased to about 500 if temporary employees are included. The store is located in the borough of Brooklyn, city of New York, in one of the most congested shopping districts to be found anywhere. About 25,000 persons visit the store weekdays and between 45,000 and 60,000 on Saturdays and Mondays.

On October 19, 1935, a labor union other than the present defendant but also chartered by the International and known as Local No. 1250, started a campaign in order to obtain recognition from plaintiff as the bargaining agent of its employees. These activities on the part of Local 1250 continued until March 20, 1936. During that course of time Local 1250 and those acting on its behalf committed acts of violence and endangered the safety of the employees of plaintiff and of other persons in that shopping neighborhood. On March 20, 1936, the general organizer of the International wrote to plaintiff to the effect that Local 1250 had been withdrawn from the field and that thereafter Local 1125, defendant herein, would prosecute the efforts of the union to obtain recognition as bargaining agent, and would participate in negotiations should plaintiff so desire. Local 1125 picketed from March 20, 1936, until the latter part of June or early part of July of the same year. It has been found that “ the activities of said pickets in the employ of defendant were disorderly and unpeaceful and as a result at least two of said pickets were arrested, charged with disorderly conduct and duly tried and convicted.” There was a cessation of the picketing and other activities of defendant in connection with its campaign directed against plaintiff from July, 1936, until March, 1937, at which latter date the campaign was resumed. Acts of violence were committed until the end of April, at which time this action was begun. No extreme violence appears to have occurred after April 24th, which is about a week before the actual commencement of this suit. From April 24, 1937, until the termination of the trial, a period of about two months, only one picket was arrested, and the charge in that instance was loud talking on the picket line. In connection with this offense of loud talking there may be considered remarks of counsel for plaintiff made upon the opening of the trial: So that at the present time all that is going on at our place of business is the picketing of the Fulton street side with three pickets, bearing signs which are subject to some criticism, and the Hanover place entrance is being picketed by one picket doing the same thing, and then in addition these four women pickets are constantly talking in a loud tone of voice. They could not be heard if they talked in an ordinary tone of voice because of the noise and congestion existing there.”

Although the record amply supports the general finding that defendant and those for whom it is responsible did commit acts of violence, a study of the record fails to reveal any evidence in support of some of the specific acts charged against defendant. It is unnecessary to enumerate these for the following reason: There is no finding that those acts of violence which defendant did commit so permeated and characterized all the conduct of defendant that if defendant were allowed to continue any of its activities upon however restricted a field, even that narrow scope of activity would result in violence. On the contrary, there is the finding referred to above to the effect that after the commencement of this action the activities of defendant were considerably modified and restrained. That this is the situation in the case at bar is further indicated by counsel for plaintiff in the course of the following discussion which took place at the trial: “ The Court: I could not stop them from peacefully picketing. Mr. Ribman (plaintiff’s counsel): Of course not. I wish an order of this court restraining them from violence. Up to this date, evidently up to this time they yielded to the force of the action we brought, and all their conduct in the past has been modified; and all that they do now that we object to is to use this loud language.” There are findings that unless the unlawful acts committed by defendant and those acting on its behalf are restrained, defendant and its agents will continue to perpetrate such acts.

Upon the basis of the foregoing facts Special Term has issued a perpetual injunction in sweeping terms restraining defendant, its members, agents “ and any and all confederates ” from calling or continuing any strike against plaintiff, from interfering in any manner, directly or indirectly, with plaintiffs * * * engaging in the business of plaintiffs,” from causing or permitting its members, officers, or others acting in concert or part with them, including any and all persons, unions, associations, groups or bodies, to picket and patrol, congregate or walk back and forth or otherwise in front of and in the vicinity of said store of plaintiff,” from interfering in any manner, directly or indirectly, with the business, good will, name or reputation of plaintiff,” from attempting to take any action which may influence any employees of plaintiff,” from attempting to coerce, threaten or intimidate any employee of plaintiff (1) [employer] or member of plaintiff (2) [employees’ association], or to attempt to persuade said employees or members or any of them,-to join defendant or any other labor union.” Thus, by the terms of the decree, defendant is prohibited from carrying on, not only unlawful acts, but even those which, either by statute or otherwise, have come to be recognized as lawful activities in which a labor union may engage. Upon appeal to the Appellate Division that court affirmed the judgment of Special Term and stated that because of its acts of violence defendant union was not engaged in a labor dispute and was beyond the pale and protection of section 876-a. * * * q^g defendant union and its adherents, by their conduct referred to, became outlaws and, therefore, not entitled to the protection of the statute.” (255 App. Div. 643, at p. 644. Cf. Code Crim. Proc. §§ 814, 826.)

Upon this appeal there is involved the scope and application of a legislative enactment whose wisdom or lack of wisdom is not a consideration open to judicial inquiry. Subject only to constitutional restrictions, it is the duty of this court to apply the statute as enacted by the Legislature.

Plaintiffs contend (1) that section 876-a of the Civil Practice Act does not apply to the case at bar because the latter does not arise out of a labor dispute; (2) that if the case at bar does arise out of a labor dispute, nonetheless, section 876-a should not be construed to forbid the relief which has been granted to plaintiffs; (3) that if section 876-a does purport to proscribe such relief under the circumstances found in the case at bar, then to that extent the statute is unconstitutional. Defendant, on the other hand, urges that the case at bar is subject to the restrictions of section 876-a and that the judgment which has been rendered in favor of plaintiffs transgresses the limitations of that statute.

First. Whether the case at bar is within the scope of section 876-a.

Section 876-a provides that No court nor any judge or judges thereof shall have jurisdiction to issue any restraining order or a temporary or permanent injunction in any case involving or growing out of a labor dispute,” except in accordance with the provisions of the statute. A labor dispute ” is defined as follows:

10. When used in this section, and for the purpose of this section:

“ (a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft or occupation, or who are employees of one employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is between one or more employers or associations of employers and one or more employees or associations of employees; between one or more employers or associations of employers and one or more employers or associations of employers; or between one or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a ‘ labor dispute ’ (as hereinafter defined) of ‘ persons participating or interested ’ therein (as hereinafter defined).

“(b) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it and if he or it is engaged in the industry, trade, craft or occupation in which such dispute occurs, or is a member, officer or agent of any association of employers or employees engaged in such industry, trade, craft or occupation.

“ (c) The term ‘ labor dispute ’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee.”

There is a finding that the union does not include among its members any of the employees of plaintiff employer, and that perfect harmony exists between plaintiff employer and its employees who are banded together as plaintiff association of employees under the presidency of the general manager of plaintiff employer. Accordingly, it is contended that the existence of a labor dispute is negatived by these facts: First, that plaintiff and defendant do not stand in the relation of employer and employee, and, therefore, the disagreement which exists between the two is not a labor dispute; and, second, the employees of plaintiff employer are altogether satisfied with their conditions of employment and, therefore, the case at bar does not involve any labor dispute.

The argument of plaintiffs runs contrary both to the plain words of the statute and to the meaning which had been attributed to the concept of a “ labor dispute ” by the cases in this State prior to the enactment] of the statute.

In explicit terms, the statute provides that if the other requisites are present, then a labor dispute shall be found to exist regardless of whether or not the disputants stand in the relation of employer and employee.” (Subd. 10-c.) It is indisputably clear that the existence or non-existence of the employer-employee relation cannot be the factor by which to determine the presence or absence of a labor dispute. Other questions of fact, therefore, must constitute the crucial test. The statute supplies two relevant criteria. First, the dispute, in order to be a labor dispute, must be one which relates to conditions of employment * * * or representation of persons in negotiating * * * conditions of employment * * *.” (Subd. 10-c.) Second, the disputants must be connected with the same industry, etc. (Subd. 10-a, subd. 10-b.) Thus, the statute defined the content of the dispute and the relationship which the disputants must bear to each other.

Let the facts be measured by this statutory test. The case at bar arises out of a dispute concerning conditions of employment and the representation of employees. The disputants are an employer of retail store clerks and an association of retail clerks of this particular employer on the one hand, and a labor union composed of retail store clerks on the other hand. These facts lead to the inescapable conclusion that the case at bar arises out of a labor dispute as defined by section 876-a.

The same result follows from cases arising in this State prior to the enactment of section 876-a. Although the members of the defendant' union are not the employees of plaintiff employer, no less is their direct interest in the labor policy of an employer who is engaged in the same industry as they are. It is common knowledge that the conditions of employment prevailing in a given establishment cannot be insulated against the influence of different standards which may exist elsewhere in that industry. The purpose of a labor union to improve the conditions under which its members do their work; to increase their wages; to assist them in other ways may justify what would otherwise be a wrong. So would an effort to increase its numbers and to unionize an entire trade or business. It may be as interested in the wages of those not members, or in the conditions under which they work as in its own members because of the influence of one upon the other. All engaged in a trade are affected by the prevailing rate of wages. All, by the principle of collective bargaining. Economic organization today is not based on the single shop. Unions believe that wages may be increased, collective bargaining maintained only if union conditions prevail, not in some single factory but generally. That they may prevail it may call a strike and picket the premises of an employer with the intent of inducing him to employ only union labor. And it may adopt either method separately. Picketing without a strike is no more unlawful than a strike without picketing. Both are based upon a lawful purpose. Resulting injury is incidental and must be endured.” (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, 263.)

Thus it is the settled law of this State that the legitimate interests of a labor union are not confined to acts directed against an employer of its members. (Nann v. Raimist, 255 N. Y. 307; Stillwell Theatres, Inc., v. Kaplan, 259 N. Y. 405; Wise Shoe Co. v. Lowenthal, 266 N. Y. 264; Goldfinger v. Feintuch, 276 N. Y. 281. Cf. J. H. & S. Theatres, Inc., v. Fay, 260 N. Y. 315.)

The same conclusion which is required by the explicit language of our statute has also been reached in other jurisdictions. (Lauf v. Shinner & Co., 303 U. S. 323; New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552; American Furniture Co. v. I. B. of T. C. & H. of A., 222 Wis. 338; see Frankfurter and Greene, The Labor Injunction; 49 Yale L. J. 537; 15 N. Y. U. L. Q. Rev. 116.)

Plaintiffs rely upon the decisions of this court in Remington Rand, Inc., v. Crofoot (279 N. Y. 635) and Busch Jewelry Co. v. United Retail Employees’ Union (281 N. Y. 150) for the proposition that the case at bar does not involve a labor dispute. In the Remington Rand case the affirmance by this court was without opinion. In the Busch Jewelry Co. case the decision of this court was grounded upon circumstances of that particular case wherein it appeared that if any picketing were allowed then such picketing would necessarily be violent in character. The question in that case was as to the scope of the relief which should be granted, and not whether the case arose out of a labor dispute.

Plaintiffs contend that the fact of extreme violence warrants the conclusion that the case at bar does not involve a labor dispute, and consequently is not subject to the restrictions contained in section 876-a. The fallacy of this argument is revealed by the fact that where a defendant has not been guilty of unlawful activities, perforce no injunction would issue even in the absence of section 876-a. The need for statutory safeguards can exist only where a defendant is guilty of some wrongdoing and is liable to injunctive restraint. The effect of the statute is to regulate the procedure by which an injunction may be obtained and to limit the scope of the relief which may be granted. The statute is rendered meaningless unless it is allowed to operate in those cases where plaintiff is entitled to some relief.

Second. The scope of the relief.

Subdivision 8 of section 876-a provides: No permanent injunction shall remain in force for more than six months from the date on which the judgment is signed, provided, however, that the duration of the injunction may be extended for another six months, if after a further hearing initiated and conducted in the same manner as the original hearing the court shall determine that the injunction shall be continued or modified in accordance with the findings of facts on the subsequent hearing.”

The injunction in the case at bar, which was entered July 1, 1937, contains no provision limiting its duration in accordance with the foregoing portion of the statute. Since more than six months have elapsed, it follows, under the operation of the statute, that the judgment must be modified for failure to include among its terms a provision limiting its duration to six months. Plaintiffs contend that the statute is unconstitutional in restricting the injunction to six months. No reason is advanced in support of this assertion, and we perceive no objection upon this score. The obvious purpose of this section is to prevent the use of a stale injunction in a situation materially different from the one which first gave rise to the injunction. If at the end of the six months there still is need for an injunction, then the statute allows its continuance. Plaintiffs are not thereby deprived of property without due process of law for the reason that the statute does not deprive them of any property whatever. Plaintiffs are entitled to the protection afforded by an injunction only so long as there is a necessity therefor. The effect of the statute is but to provide a method whereby the continuing need for an injunction may be re-examined at reasonable intervals. Such disputes generally are resolved one way or another in a comparatively short time. Once the danger inherent in a situation has been dissolved, there is no further need for an injunction. Thus, the statute secures to the plaintiffs complete protection of their property rights, albeit only so long as they require protection.

Subdivision 1 (f) enumerates eleven categories of activities, e. g., peaceful picketing, which may not be restrained. The injunction which has been issued enumerates fourteen paragraphs of activities which are forbidden. Defendant is restrained from calling or continuing any strike,” “ from interfering in any manner, directly or indirectly, with plaintiffs,” from causing or permitting its members * * * to picket and patrol * * * in front of and in the vicinity of said store of plaintiff,” from interfering in any manner, directly or indirectly, with the business * * * of plaintiff,” “ from attempting to take any action which may influence any employees of plaintiff (1) [employer] to decline to work for plaintiff (1),” etc. Restrictions such as these are improper upon two counts: First, they offend against the well-settled principle of equity, that an injunction must clearly inform a defendant of the acts he is forbidden to commit. Precision may be less readily attainable in some situations than others, but the injunction in the case at bar is couched in exceedingly sweeping terms. Second, the injunction forbids defendant to engage in activities which are altogether lawful. It has often been said by the courts of this State that an injunction is protection for the future and not punishment for the past. (Nann v. Raimist, supra; J. H. & S. Theatres, Inc., v. Fay, supra.) That defendant has committed acts of violence, which would be repeated but for the staying hand of equity entitles plaintiffs to protection against such conduct; but just as plaintiffs are entitled to. engage in their lawful pursuits, free from unlawful interference, so defendant is entitled for its lawful purposes to employ all means which are lawful. (Senn v. Tile Layers Protective Union, 301 U. S. 468, 483; Goldfinger v. Feintuch, supra, at p. 288.) It is not the function of courts to supervise labor controversies. The task is sufficiently difficult when confined to preventing the parties from overstepping the bounds of lawful conduct. Section 876-a clearly confirms the right to engage in peaceful picketing and other lawful modes of persuasion. The injunction, therefore, was improper in including many peaceful and lawful activities which are enumerated among the proscriptions.

In Nann v. Raimist (supra) it was held to be beyond the power of this court to review the exercise of the “ chancellor’s discretion ” in restraining all activities if violence had been committed. Even so, the discretion of the chancellor ” was allowed only a narrow^ scope. (Wise Shoe Co. v. Lowenthal, supra.) And now, since the enactment of section 876-a, the “ chancellor ” is confined to restraining only unlawful acts. Thus the right of peaceful picketing is clearly established in this State (cf. Hague v. C. I. O., 307 U. S. 496; Schneider v. Town of Irvington, 308 U. S. 147, decided November 22, 1939) and the constitutionality of the act of the Legislature has been recognized. (Goldfinger v. Feintuch, supra.)

In the Busch case a majority of this court read the record as disclosing a situation completely permeated by violence and as affording no ray of hope that the defendant would engage in other than violent picketing. The rule of that case presents an exception which is verbal rather than real, for since defendant would have engaged only in violent picketing, the unqualified prohibition of picketing operated only on the one kind of picketing present in that situation, viz., violent picketing. In that case peaceful picketing was out of the question. In the case at bar there is no finding to that effect, and so far as the record bears upon this issue, it appears that defendant has reformed its conduct in a more peaceful direction since the institution of this suit. The injunction, therefore, should not have restrained any but violent and unlawful methods on the part of defendant.

Defendant-appellant contends that the judgment should be reversed and the complaint dismissed for failure to plead and to prove compliance with subdivision 4 of section 876-a which requires that No injunctive relief shall be granted to any plaintiff who has failed to plead and prove compliance with all obligations imposed by law which are involved in the labor dispute in question, or who has failed to allege and prove that he has made every reasonable effort to settle such dispute either by negotiation or with the aid of any machinery of mediation or voluntary arbitration, provided for by law or contract between the parties.”

In the absence of evidence of a contrary intent, a reasonable construction of the statute does not require the allegation and proof that plaintiff employer offered to negotiate with defendant union in a situation such as is disclosed by the findings in the case at bar. It has been found that this defendant union does not include among its members any employee of the plaintiff employer and that every employee of the plaintiff employer is opposed to being represented by the union. Under these circumstances, negotiation would be an idle and futile ceremony and need not be alleged and proved as a prerequisite to injunctive relief.

The judgments should be modified so as to strike out all provisions except those restraining violence, breach of the peace and false and misleading statements. To such injunction, so modified, should be added a provision limiting the duration of the injunction in accordance with subdivision 8 of section 876-a of the Civil Practice Act.

The judgments should be modified in accordance with this opinion, and as so modified affirmed, without costs. (See 282 N. Y. 804.)

Lehman, Ch. J., Loughran, Rippey, Sears and Lewis, JJ., concur; Conway, J., taking no part.

Judgment accordingly.


source: Caselaw Access Project

author: Loughran, J.

license: Public Domain

text:
    Millard E. Theodore, Appellant, v. Daily Mirror, Inc., Respondent.
    Argued January 10, 1940;
    decided March 12, 1940.

      Eugene L. Bondy and Millard E. Theodore, in person, for appellant.
    Reversible error was committed in admitting prejudicial testimony concerning plaintiff’s financial condition. (18 Halsbury’s Laws of England, p. 605; 2 Kent’s Commentaries, p. 16; Try on v. Willbank, 234 App. Div. 335; Merkling v. Ford Motor Co., 251 App. Div. 89; Scott v. Sampson, 82 Q. B. D. 491; Bergstrom v. Ridgway Co., 138 App. Div. 178; Skinner v. Powers, 1 Wend. 451; People v. Montlake, 184 App. Div. 578; Clark v. Variety, Inc., 189 App. Div. 462; National Supply Co. v. Jebb, 142 App. Div. 256.)

      Charles Henry for respondent.
    There was no error in the trial court’s rulings on the cross-examination of plaintiff. (Seelman on Slander & Libel, §§ 310, 312; Abell v. Cornwall Industrial Corp., 241 N. Y. 327.)
   Loughran, J.

In this action for libel there was evidence sufficient to take the case to the jury on the issue whether the defendant had falsely and unjustifiably imputed to the plaintiff that he had been faithless to his public trust in his» office as a member of the State Legislature.

On his cross-examination, the plaintiff was made to admit that there were unpaid judgments against him for office rent and merchandise, for money lent and for work and services. This cross-examination runs to twenty-one pages of the record. Plaintiff’s objections thereto were overruled by the trial judge because, as he said, it may all go to the character and reputation of the individual.” Whether that ruling was right is the only question to be determined on this appeal by the plaintiff from the affirmance of a judgment entered on a verdict for the defendant.

There was no objection when on his direct examination the plaintiff took credit to himself for social service work and for membership in several professional and fraternal organizations. Defendant contends that thereby the plaintiff laid himself open to cross-examination respecting all manner of infirmities. Cross-examination of that sort might within limits have been legitimately directed to the credit of the plaintiff as a witness. But the defendant did not claim (nor did the trial judge rule) that the unsatisfied judgments had a proximate tendency to impeach any testimony of the plaintiff. (See People v. Montlake, 184 App. Div. 578, 583.) The contention of the defendant is not less than this: When the plaintiff ventured to testify to his quondam beneficient conduct his actual character became the issue with the result that the defendant was then entitled to cross-examine on facts unrelated to the libel in order to mitigate the damages.

We are unable to agree to that proposition. The bad disposition of a plaintiff is no defense to an action for defamation. (Cudlip v. New York Evening Journal Pub. Co., 180 N. Y. 85, 87. Cf. Stafford v. Morning Journal Assn., 142 N. Y. 598.) “ It is not permissible for a plaintiff to give evidence of particular facts in support of his claim to have a good character, nor is it open to a defendant to give evidence, or to cross-examine as to particular instances with the object of diminishing the damages.” (Greer, L. J. in Hobbs v. Tinling, [1929] 2 K. B. 1, 39.)

No argument has been made that the plaintiff’s failure to pay bis creditors would constitute any degree of justification, nor was an argument of that kind possible, for the answer did not plead any defense of truth. (Cf. Fleckenstein v. Friedman, 266 N. Y. 19.)

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

Lehman, Ch. J., Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgments reversed, etc.


text:
    Isidore Weinfeld, Appellant, v. Samuel Kaplan et al., Respondents, Impleaded with Others.
    Argued January 10, 1940;
    decided March 12, 1940.

      Meyer D. Siegel and Douglas L. Siegel for appellant.
    Even in the case of an independent contractor a landlord is not relieved from liability for negligence when the nature of the work is inherently dangerous. (Sciolaro v. Asch, 198 N. Y. 77; Wright v. Tudor City Twelfth Unit, Inc., 276 N. Y. 303; Besner v. Central Trust Co., 230 N. Y. 357; Vaughan v. Transit Development Co., 222 N. Y. 79; Maloney v. Brady, 38 N. Y. St. Repr. 803; Bryant v. Carr, 52 Misc. Rep. 155; O’Rourke v. Feist, 42 App. Div. 136.) An owner of premises, having undertaken to make repairs, is liable for the negligence of his workmen whether he was legally obligated to make the repairs or not. (Marks v. Nambil Realty Co., 218 App. Div. 763; 245 N. Y. 256; Rosenberg v. Zitchik, 52 Misc. Rep. 153; Smith v. Salop, 247 App. Div. 766; 272 N. Y. 478.) Both defendants are liable as tort feasors. (Jerome v. N. Y. Rys. Co., 190 App. Div. 311; Haefeli v. Woodrich Engineering Co., 255 N. Y. 442; Ward v. Hill, 125 App. Div. 587; Withers v. Brooklyn Real Estate Exchange, Ltd., 106 App. Div. 255.)

      James M. Brooks for John C. von Glahn, respondent.
    The work to be done by the independent contractor was not inherently dangerous. (Hexamer v. Webb, 101 N. Y. 377; Rudger v. Mucklon Holding Co., 240 App. Div. 188; Kuhn v. Carlin Construction Co., 154 Misc. Rep. 892; Berg v. Parsons, 156 N. Y. 109; Ahbol v. Harden Contracting Co., 265 N. Y. 564; Callan v. Pugh, 54 App. Div. 545; Herrington v. Village of Lansingburgh, 110 N. Y. 145; Roemer v. Striker, 142 N. Y. 134; Engel v. Eureka Club, 137 N. Y. 100.)

      Joseph S. McCann and William J. Ahearn for Samuel Kaplan, respondent.
   Loughran, J.

Plaintiff sued for personal injuries alleged to have been caused by negligence on the part of each of the two defendants. At the close of his direct case, motions by both defendants for dismissal of the complaint were granted. The Appellate Division affirmed and allowed this appeal by the plaintiff. For the sake of convenience, we shall call one defendant the landlord and the other the tenant, though that relationship between them had not yet fully attached at the time in issue.

On February 24, 1936, the landlord agreed to let certain store premises to the tenant for a term to begin on March 1 of that year. By the contract of lease, the landlord undertook to make repairs to the heating plant and the tenant was licensed to do some inside painting for his own purposes.

A contractor engaged by the landlord to put the heating equipment in order was performing that work on February 29, 1936, while the plaintiff was painting the interior of the store for the tenant. At that time — as the stipulated fact is — the landlord was the person in control of the premises.” Employees of the heating-contractor removed the cover from a register in the floor over the hot-air furnace and the plaintiff fell through the unguarded opening and was hurt. For the purposes of this opinion, it is assumed by us that any question of contributory negligence of the plaintiff was for the jury.

(1) The workmen who left the hole in the path of the plaintiff were not servants of the landlord. Their employer was an independent contractor. No uncommon danger was inherent in the nature of the work that was to be done on the heating system for the landlord. The negligence of the servants of the heating-contractor arose casually out of the mere performance of their work and was not directly connected with the landlord’s obligation to have that work done. There was no evidence that the landlord knew or ought to have known of the consequent danger.. For such “ collateral negligence ” an employer of an independent contractor is not liable. We think this plaintiff made no case against the landlord. (See Hyman v. Barrett, 224 N. Y. 436; Clelland v. Lloyd, Ltd., [1938] 1 K. B. 272.)

(2) When the register grating was removed, the plaintiff was away from the premises on an errand. In his absence, the tenant came to the premises and saw the hole theretofore made in the floor by the employees of the heating-contractor. Before the plaintiff returned, the tenant had left the premises and was not there when the accident occurred. In those circumstances the plaintiff, we think, had no right to complain of the mere failure of the tenant to warn him_against the possibility of a continuance of the condition created by the independent heating-contractor on property controlled by the landlord. (See Reynolds v. Van Beuren, 155 N. Y. 120; American Law Institute, Restatement of the Law of Torts, Negligence, § 314.)

The judgment should be affirmed, with costs. (282 N. Y. 804.)

Lehman, Ch. J., Finch, Sears and Conwat, JJ., concur; Rippey and Lewis, JJ., dissent.

Judgment affirmed.


author: Per Curiam.

text:
    In the Matter of Leonard J. Smith, Respondent, against Lewis J. Valentine, as Police Commissioner of the City of New York, Appellant.
    Argued January 8, 1940;
    decided March 12, 1940.

      William C. Chanler, Corporation Counsel (Charles C. Weinstein and Bernard Friedlander of counsel), for appellant.
    The acceptance by petitioner of gratuities from an attorney practicing in the Police Court of the precinct to which petitioner was attached was misconduct justifying his dismissal. (Matter of Roge v. Valentine, 280 N. Y. 268; Christal v. Police Commission of San Francisco, 92 Pac. Rep. [2d] 416.)

      Sydney Rosenthal and Benjamin J. Jacobson for respondent.
    The receipt of the checks under the facts did not constitute a violation of any rule of the Police Department. (People ex rel. Mitchel v. LaGrange, 2 App. Div. 444; 151 N. Y. 664; People ex rel. Wasserman v. Bell, 21 N. Y. St. Repr. 895; People ex rel. Cohen v. Waldo, 164 App. Div. 563.)
   Per Curiam.

Upon trial before the Police Commissioner of the city of New York, the petitioner was found guilty of five specifications upon charges of conduct unbecoming a police officer and conduct prejudicial to the good order, efficiency and discipline of the department. On appeal to the Appellate Division the findings upon the specifications charging that petitioner recommended on September 24, 1930, one Scott Sanders, then an attorney, to prosecute a civil action and that on February 29, 1932, recommended the same lawyer for the defense of a criminal action, were confirmed. The findings upon specifications “2, ” “3, ” and “ 9 ” were annulled. Those charged the receipt by the petitioner of sums of three dollars each on January 4, 1932, February 11, 1932 and December 21, 1932, from the same Scott Sanders, as gratuities or presents, while assigned to the 103rd Precinct, which was included within the boundaries of the 4th District Magistrate’s Court in Queens.

At the time of the receipt of the moneys, Scott Sanders had his office within the 4th Magistrate’s Court District. His practice was ninety per cent criminal and ten per cent civil, and he had most of his practice in that court.

On the trial, three checks were introduced in evidence. Each was for three dollars. The first dated December 21, 1932, was made to the order of Leonard Smith and was indorsed by him. The second, dated February 11, 1932, was made to the order of Mrs. Leonard Smith, and was indorsed Leonard Smith ” by petitioner. The third, dated January 4, 1932, was made to the order of cash and indorsed Leonard Smith.”

The petitioner, his wife and Sanders sought to explain these transactions as Christmas or birthday presents for the petitioner’s children rather than gratuities or presents to him. The Police Commissioner was justified, on the record presented, in disbelieving the explanations offered and in finding the petitioner guilty upon the specifications 2,” 3 ” and “ 9.” He was the trier of the facts with power to make the determination.

The facts come clearly within the doctrine of Matter of Roge v. Valentine (280 N. Y. 268, at pp. 274, 275), where it was said: The prohibitions contained in the rules are directed against acts which may be innocent, if done with innocent intent, but which tend to demoralize the police force, facilitating temptation and covering corruption. Such acts are stamped as wrongful at all times, regardless of whether in particular instance they may be innocent in purpose or in effect. The prohibition of the acts specified in the rules may not be regarded as a license or a grant of immunity for other acts where purpose or effect is not innocent. It is plain that any patrolman who receives and accepts from an attorney practicing in the police court in the precinct to which the patrolman is attached, money as a gratuity or in payment for services, past or future, rendered or hoped for, voluntarily places himself in an equivocal position, destroys his usefulness as a police officer and is guilty of misconduct which justifies, if, indeed, it does not dictate, dismissal from the force.” The fact tho,t the evidence failed to disclose that the petitioner was at any time a witness in any case in which the attorney Sanders appeared, does not distinguish this from the Roge case.

The order of the Appellate Division should be reversed and the determination of the Police Commissioner confirmed, without costs.

The first certified question is answered in the affirmative. The second certified question is not answered.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Ordered accordingly.


author: Finch, J. Loughran, J.

text:
    Anna Krause, Respondent, v. Bernard Krause, Appellant.
    Argued November 15, 1939;
    reargued January 15, 1940;
    decided March 12, 1940.

      David Krause, David Altschul and Milton Altschul for appellant.
    The second defense is sufficient in law. (Lefferts
      v. Lefferts, 263 N. Y. 131; Fischer v. Fischer, 254 N. Y. 463; Hubbard v. Hubbard, 228 N. Y. 81; O’Dea v. O’Dea, 101 N. Y. 23; Hunt v. Hunt, 72 N. Y. 217; People v. Baker, 76 N. Y. 78; Stevens v. Stevens, 273 N. Y. 157; Holmes v. Holmes, 4 Lans. 388; 57 Barb. 305; McDermott v. McDermott, 252 App. Div. 875; May v. May, 251 App. Div. 63; Shannon v. Shannon, 247 App. Div. 790; Coakley v. Coakley, 161 Misc. Rep. 867; Ashdown v. Ashdown, 178 N. Y. Supp. 565; Vose v. Vose, 280 N. Y. 779.)
    A. Albert Bennin and I. Joel Komarow for respondent.
    Defendant having invoked the jurisdiction of the court of the State of Nevada and having procured a decree to be entered in his own favor, cannot be heard to impeach or attack its validity. (Brown v. Brown, 242 App. Div. 33; 266 N. Y. 532; Hynes v. Title Guarantee & Trust Co., 273 N. Y. 612; Stevely v. Stevely, 254 App. Div. 743; Starbuck v. Starbuck, 173 N. Y. 503; Matter of Swales, 60 App. Div. 599; 172 N. Y. 651; Matter of Morrison, 52 Hun, 102; 117 N. Y. 638; Simmonds v. Simmonds, 78 Misc. Rep. 571; Kaufman v. Kaufman, 177 App. Div. 162; Nathan v. Nathan, 150 Misc. Rep. 895; 246 App. Div. 162; People ex rel. Shrady v. Shrady, 47 Misc. Rep. 333; Harris v. Harris, 197 App. Div. 646; Kelsey v. Kelsey, 204 App. Div. 116; 237 N. Y. 530; Van Dover v. Van Dover, 247 App. Div. 813; Campbell v. Campbell, 164 Misc. Rep. 647.)
   Finch, J.

This is an action for separation brought by a wife in which she seeks support. The husband seeks to avoid liability to plaintiff by alleging the invalidity of a Nevada divorce which he obtained from his first wife. May he avail himself of such a defense?

The answer interposes two separate and distinct defenses. It is only the second defense with which we are concerned.

The facts presented by the defense are as follows: Defendanu and his first wife, domiciled in this State, were married here in 1905. There are two children by that marriage. In 1932 the present defendant, while retaining his residence in this State, made a visit to Reno, Nev., where he invoked the jurisdiction of the courts of that State and obtained a decree of divorce from his first wife, who neither entered an appearance nor was personally served in that action, and who at all times has remained a resident of this State. (Cf. Glaser v. Glaser, 276 N. Y. 296.) Consequently this divorce against the first wife is not recognized by the courts of this State. (Winston v. Winston, 165 N. Y. 553; Hubbard v. Hubbard, 228 N. Y. 81; Lefferts v. Lefferts, 263 N. Y. 131.) The subsequent marriage between plaintiff and defendant, therefore, was void for the incapacity of defendant to marry. But none the less plaintiff and defendant participated in a complete marriage ceremony and did live together as man and wife for six years pursuant thereto, after which time defendant abandoned plaintiff, who now brings this action. Defendant entered the defense already noted, viz., that he lacked capacity to marry plaintiff because the court, which upon his petition purported to accord him a divorce from his first wife, lacked jurisdiction to act in the premises. Upon motion of plaintiff Special Term struck out the defense as insufficient in law and cited Starbuck v. Starbuck (173 N. Y. 503) in support of its decision. The Appellate Division affirmed by a divided court, the majority citing Brown v. Brown (242 App. Div. 33; affd., 266 N. Y. 532), and the minority citing Stevens v. Stevens (273 N. Y. 157). Defendant appeals upon the following question, certified by the Appellate Division to this court: Is the second, separate and distinct defense in the amended answer, sufficient in law on the face thereof?”

The question upon this appeal, therefore, depends upon whether defendant husband may now be heard to assert in this action,' brought by his second wife,” that the judgment of divorce which he sought and obtained failed of its purpose and thereby did not give to the defendant that freedom to remarry which he appeared to possess by virtue of said judgment.

In general, a person who invokes the jurisdiction of a court will not be heard to repudiate the judgment which that court entered upon bis seeking and in his favor. (1 Freeman on the Law of Judgments [5th ed.], § 320; cases collated in 3 A. L. R. 535.) The rule has been applied in this State in cases where property rights arising out of the marriage have been involved. (Starbuck v. Starbuck, supra; Bell v. Little, 204 App. Div. 235; affd., 237 N. Y. 519; Hynes v. Title Guarantee & Trust Co., 273 N. Y. 612.) It is said, however, that in Stevens v. Stevens (supra) we have answered the question upon which the case at bar turns. But in the Stevens case an action for separation was brought in this State by a wife against her husband who had previously secured a divorce in a Nevada court which was admittedly without jurisdiction. The husband counterclaimed for a divorce. At the trial the wife sought to defeat the counterclaim by introducing in evidence the Nevada divorce obtained by the husband in order to put him in a position, where he could not maintain his claim for divorce because he was no longer the husband of the wife. Upon the facts of that case this court held that the husband was not prevented from maintaining the action for divorce despite the prior Nevada decree which he had obtained. Our conclusion is that the award of the Nevada decree to the husband should have no effect upon the right of either party to a full adjudication in this action upon the conceded fact of their existing marital status.” (273 N. Y. at p. 158.) The court clearly indicated the effect of the decision when it stated that We need not inquire what the result would be in some further event that has not happened.” (273 N. Y. at p. 159.) Thus, the very language of the opinion of this court in the Stevens case indicated that it would not control a different situation. In the Stevens case the position which the husband assumed in the proceedings in this State was inconsistent with the decree which he had obtained in Nevada only in the sense that as part of a cause of action for divorce it is necessary to prove the marriage. (Fischer v. Fischer, 254 N. Y. 463; Jones v. Jones, 108 N. Y. 415.) But the action which he sought to take was parallel with that which he had previously undertaken in the Nevada proceedings in that the object of both was the same, to wit, termination of the marriage with his wife. Such is not the situation in the case at bar where the action which defendant seeks to take is inconsistent with the result purportedly achieved by the invalid Nevada decree.

In Vose v. Vose (280 N. Y. 779) the plaintiff in a prior action was allowed to repudiate the judgment of divorce which he had obtained. In that case neither of the parties ever left this State and the judgment which was repudiated was that of a divorce by a Mexican court which had not even the slightest semblance of jurisdiction to act in the premises. The husband and the wife in that case had merely entered into a collusive agreement to obtain from a court of a foreign country in which correspondence through the mails constituted the only nexus between either of the interested parties and the court which entered the judgment of divorce. In this case it may be observed also that section 51 of the Domestic Relations Law (Cons. Laws, ch. 14) interdicts any agreement between a husband and wife to alter or dissolve a marriage or to relieve the husband from his liability to support his wife.” It is urged, on the other hand, that in Brown v. Brown (supra) we took a position which does not permit a defendant under the circumstances of the case at bar to repudiate his obligation to support the wife. The Brown case may also be said to have involved rights arising out of a contract whose validity depended upon the existence of the marriage relationship so that the exact ground upon which to place that decision may be said to be in dispute.

We come, then, to a consideration of the principle applicable in the case at bar. We cannot lose sight of the fact that the present defendant was himself the party who had obtained the decree of divorce which he now asserts to be invalid and repudiates in order that he may now disown any legal obligation to support the plaintiff, whom he purported to marry. To refuse to permit this defendant to escape his obligation to support plaintiff does not mean that the courts of this State recognize as valid a judgment of divorce which necessarily is assumed to be invalid in the case at bar, but only that it is not open to defendant in these proceedings to avoid the responsibility which he voluntarily incurred.

It is conceded that the estoppel which is invoked against the present defendant is not a true estoppel as that term is ordinarily understood, although the effect is the same in the case at bar.

But it is urged that even though the prior authorities in this State do not compel a contrary result, a different conclusion should be reached as a matter of principle. It is said that public policy requires that the interest of the State in the first marriage be protected even though that may also give to the individual defendant an incidental advantage to which he is not entitled in his private right. Thus defendant seeks to avoid the obligation which he has purported to undertake to support his second wife, upon the pretext that such is inconsistent with his obligations toward his first wife. Objection upon this score is fully met by the fact that the needs of the first wife are to be taken into account in arriving at the ability of defendant to support plaintiff in the case at bar. Defendant would altogether disavow any obligation toward this plaintiff because of his obligation to bis first wife. The result which we reach here is the only one which awards justice to this plaintiff, prevents her from becoming a public charge if she should be impecunious and at the same time protects the first wife in adequate degree. Thus there is complete observance of not only the interest of the State in the protection of the first marriage, but also of the other interest of the State that marriage obligations shall not be lightly undertaken and lightly discarded.

Nothing in this decision should be taken to mean that because the defendant may not in these proceedings avail himself of the invalidity of his Nevada decree he is not the husband of his first wife. On the contrary, the very theory that defendant is precluded in these proceedings presupposes that the true situation is the contrary of that which he may show in the case at bar.

It follows, therefore, that the order appealed from should be affirmed, with costs, and the question certified answered in the negative.

Loughran, J.

(dissenting). The complaint states in orthodox form a cause of action by a wife against her husband for a separation. “ In every action for separation the primary fact to be proved is an existing marriage between the parties.” (Fischer v. Fischer, 254 N. Y. 463, 466.)

In his answer the defendant pleads that he has always been domiciled in this State where he first married a wife who is still living, and that the status alleged in the complaint was taken up after a divorce which he obtained against his first wife in another State through an action wherein she was not personally served with process and did not appear. From these allegations, as nobody denies, the inference of law follows that the plaintiff is not and never was the wife of the defendant. (Dom. Rel. Law, § 6; Winston v. Winston, 165 N. Y. 553. Cf. Glaser v. Glaser, 276 N. Y. 296.)

Nevertheless, the court now holds that the plaintiff may succeed in this matrimonial action for a separation from the defendant as her' husband, though the court also certifies that nothing in its decision is to be taken to mean that the defendant is not the husband of his first wife. This ruling signifies that, because the defendant took it upon himself to marry the plaintiff and lived with her as her husband, he will not now be heard to contradict himself by asserting the truth that he was all the time the husband of another. If the question were res integra, this disposition would perhaps be right, seeing that all estoppels run against a showing of the truth. But I think that view of the defendant’s position is not open to us.

One of the last of our relevant cases is Davis v. Davis (279 N. Y. 657). There a man brought an action to annul his marriage to a woman who had secured a similarly void foreign divorce decree. With full knowledge of the circumstances surrounding the decree, he had induced her to marry him in honest reliance upon it. A child had been born of their union. On those facts and on the reasoning of Kaufman v. Kaufman (177 App. Div. 162) the woman asked the court in its sound discretion to estop the man from questioning his marriage to her. The man had judgment declaring that marriage wholly void on the ground that at the time the woman essayed it she had a husband living and undivorced.

A claim of equitable preclusion much the same as that advanced in the Davis case was also rejected in Fischer v. Fischer (supra) and in Lefferts v. Lefferts (263 N. Y. 131). Unless these recent cases can now be distinguished we cannot contrive a gwasf-estoppel in favor of the present plaintiff. It is quite true that in the Fischer, Lefferts and Davis cases the party who sought to impeach the void foreign divorce decree was not (as in this case) the party who procured it. This chance circumstance may not, I think, be here given controlling effect consistently with the state of our decisions.

In Stevens v. Stevens (273 N. Y. 157) we held that a void divorce decree secured in another State by a husband did not preclude him from maintaining, a counterclaim for divorce in an action brought by his wife for a separation. There, however, neither party had gone through another marriage ceremony and so we did not in that case come to any question as to what the result would have been in such a predicament. So, in Vose v. Vose (280 N. Y. 779), we held that a wife could maintain an action for a separation from her husband in the face of a void foreign divorce decree obtained by her against him, there being again no marriage involved other than that of the parties.

In Starbuck v. Starbuck (173 N. Y. 503) a wife who had procured a void foreign divorce decree was held to be thereby precluded from claiming dower in the lands of her husband who had remarried; in Bell v. Little (204 App. Div. 235; 237 N. Y. 519) a wife who had procured such a decree was on that account denied dower in the lands of a man she had married thereafter; in Brown v. Brown (242 App. Div. 33; 266 N. Y. 532) a second wife's action on a contract dependent on the validity of her marriage prevailed over a plea that a prior marriage of" the defendant husband had not been dissolved by a foreign divorce decree obtained by him; and in Hynes v. Title Guarantee & Trust Co. (273 N. Y. 612), where a second wife sued on a contract that she was to have dower in lands owned by a corporation controlled by her husband, we held that the invalidity of his foreign divorce from his first wife would be ,no defense.

All the cited cases divide themselves into two categories.

Fischer v. Fischer, Lefferts v. Lefferts, Stevens v. Stevens, Davis v. Davis and Vose v. Vose were matrimonial actions— cases that primarily involved a marital status asserted as such. In a case of that character the court has been constrained to declare the real fact of the relationship of the man and woman in accordance with the public policy of the State no matter what the consequent hardship to either of them.

Starbuck v. Starbicck, Bell v. Little, Brown v. Brown and Hynes v. Title Guarantee & Trust Co. were not matrimonial actions. These were private suits. The claim in each case — though predicated of a marriage — was personal to an individual party. Hence room was found for consideration of equitable inducements conceived as affecting only the several parties to the litigation. (So, Matter of Swales, 60 App. Div. 599; 172 N. Y. 651.)

Once you accept the rigor of our settled applicable rule of Conflict of Laws there is no disputing that the foregoing categories have a warrant that runs deep in the law. Marriage being a public institution of universal concern, and each individual marriage or its dissolution affecting the rights not only of the husband and wife but of all other persons, the court sitting in a divorce cause should regard the public as a party thereto, and so far protect its interests as not to suffer the decree for dissolution or suspension to pass contrary to the real facts and justice of the case.” (2 Bishop on Marriage, Divorce and Separation, § 480.) For the same reason judgment in a matrimonial action may not go by default and (though the defendant be absent) a hearing must none the less be had therein that in essence is a trial. (See Redfield v. Critchley, 277 N. Y. 336, 341.) In any other' view, even a valid marriage might in effect be dissolved or altered by the parties themselves contrary to the declared public policy of the State. (Dom. Rel. Law, § 51.) No comparable consequences have been apprehended where (as in the cases of the second category) the action was not a matrimonial action but had for its first objective some collateral advantage claimed individually by a party in the role of a spouse.

The present plaintiff does not sue for support merely. A wife has no such remedy in this State. (Johnson v. Johnson, 206 N. Y. 561.) This action is the purely statutory action for a separation. (Civ. Prac. Act, art. 69.) Any suggestion that the court should in some fashion take account of the needs of the defendant’s first wife (who is not a party) cannot alter the case. This action is a matrimonial action. (Civ. Prac. Act, art. 70.) It belongs in the first of the foregoing categories.

My conclusion is that the defense here challenged is valid. It may be that the law will be bettered by the contrary ruling that the defendant must stand by a relationship with the plaintiff which she is free (and always was free) to nullify. (Lefferts v. Lefferts, supra; Davis v. Davis, supra.) But it is not the function of courts to make such supposed improvements. “ Their general duty is not to change but to work out the principles already sanctioned by the practice of the past. No one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds, with such consistency as he may be able to attain.” (Holmes, J., in Stack v. N. Y., N. H. & H. R. R. Co., 177 Mass. 155, 158.)

Perhaps a word should be added respecting Guggenheim v. Guggenheim (201 N. Y. 602) and Kelsey v. Kelsey (204 App. Div. 116; 237 N. Y. 520). The foreign divorce decree involved in the Guggenheim case was valid in this State. (See Guggenheim v. Wahl, 203 N. Y. 390.) In the Kelsey case each of the parties to the void foreign decree had remarried and (since either party was thus as guilty of adultery as was the other) the husband’s action against the wife for a divorce was not to be sanctioned. (See Civ. Prac. Act, § 1153, subd. 4.)

The orders should be reversed, without costs, and the question certified answered in the affirmative.

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

Order affirmed, etc.


author: Lehman, Ch. J.

text:
    New York Telephone Company, Appellant, v. Jamestown Telephone Corporation, Respondent.

      Argued January 23, 1940;
    decided March 12, 1940.

      Lyman M. Bass and Thomas R. Wheeler for appellant.
    Respondent, by continuing to use the toll facilities of appellant on and after March 1, 1932, nullified its notice of termination of the traffic agreement. (Gravenhorst v. Zimmerman, 236 N. Y. 22; Cammack v. Slattery & Bros., Inc., 241 N. Y. 39; Brennan v. National Equitable Ins. Co., 247 N. Y. 486; St. Regis Paper Co. v. St. Clara Lumber Co., 186 N. Y. 89; Milwaukee Boston Store v. Katz, 153 Wis. 492.) The question of the renewal of a contract which expires at a definite date is fundamentally different from the question whether a notice given to terminate a contract continuing indefinitely has been waived or nullified by the conduct of the party giving the notice. (Schuyler v. Smith, 51 N. Y. 309; Foster v. White, 279 N. Y. 38; Cammack v. Slattery, 241 N. Y. 39.) A telephone corporation which has established toll connections with another such corporation by contract is not prohibited by common law rule from discontinuing such connection when the contract providing therefor also provides for discontinuance. (Oklahoma-Arkansas Tel. Co. v. Southwestern Bell Tel. Co., 45 Fed. Rep. [2d] 995; Allen v. Railroad Com., 231 N. W. Rep. 184; State v. Cadwallader, 172 Ind. 619.) The jurisdiction of the Public Service Commission over the subjects committed to it by the Legislature, including toll connections and joint rates, is exclusive, and was intended to supersede all common law remedies. (Purcell v. New York C. R. R. Co., 268 N. Y. 164; Murray v. New York Tel. Co., 170 App. Div. 17; 226 N. Y. 590; People ex rel. City of New York v. Nixon, 229 N. Y. 356; Matter of Dry Dock, E. B. & B. R. R. Co., 254 N. Y. 305; Gurney Heater Mfg. Co. v. N. Y., N. H. & H. R. R. Co., 264 Mass. 427; St. Paul Book & Stationery Co. v. St. Paul Gas Light Co., 130 Minn. 71.)

      John Lord O’Brian and Philip Halpern for respondent.
    The notice of termination of the contract was not withdrawn or nullified by the continuance of the long distance telephone service after March 1, 1932. (Miller v. Levi, 44 N. Y. 489; Burnee Corp. v. Uneeda Pure Orange Drink Co., 132 Misc. Rep. 435; Harlem Gas Co. v. Mayor, 33 N. Y. 309; Northern Westchester Lighting Co. v. Village of Ossining, 179 App. Div. 135; 227 N. Y. 579; Queens County Water Co. v. City of New York, 186 App. Div. 512; Clover Condensed Milk Co. v. Cushman Brothers Co., 31 App. Div. 108.) It was properly held as a matter of law that plaintiff was not entitled to recover upon the canceled contract. (Port Jervis Water Works Co. v. Village of Port Jervis, 151 N. Y. 111; People ex rel. City of New York v. Queens County Water Co., 232 N. Y. 277; Harlem Gas Co. v. Mayor, 33 N. Y. 309; Northern Westchester Lighting Co. v. Ossining, 179 App. Div. 135; 227 N. Y. 579; Queens County Water Co. v. City of New York, 186 App. Div. 512; Hazeltine v. Weld, 73 N. Y. 156; Chamberlain v. Pratt, 33 N. Y. 47; Chase v. Second Ave. Realty Co., 97 N. Y. 384; Phipps Estates. Phong, 214 N. Y. 308; Smith v. Allt, 7 Daly, 492.) It was the duty of both parties to continue to render the long distance telephone service after the date of the termination of the contract. (Matter of Jamestown Tel. Corp. 4 F. C. C. Rep. 326; State v. Cadwallader, 172 Ind. 619; Clinton-Dunn Telephone Co. v. Carolina Tel. & Tel. Co., 159 N. C. 9; Campbellsville Tel. Co. v. Lebanon Tel. Co., 118 Ky. 277; United States Tel. Co. v. Central Union Tel. Co., 171 Fed. Rep. 130; City of Jamestown v. Penna. Gas Co., 1 Fed. Rep. [2d] 871; Ft. Smith Light & Traction Co. v. Bourland, 267 U. S. 330; Brimstone R. R. & C. Co. v. United States, 276 U. S. 104; City of New York v. N. Y. Tel. Co., 115 Misc. Rep. 262; 202 App. Div. 796; 236 N. Y. 615.)
   Lehman, Ch. J.

The defendant, Jamestown Telephone Corporation, is the sole telephone company in the city of Jamestown. Its wires extend only fifteen miles beyond the city. The plaintiff, New York Telephone Company, maintains a telephone system extending to all parts of the State. The defendant corporation was formed to take over the business and property of a corporation, which had been controlled by the New York Telephone Company and had been operated as part of its general telephone system, and the business and property of Home Telephone Company, a local independent telephone company. The New York Telephone Company received part of the stock of the defendant, Jamestown Telephone Corporation. Jamestown Telephone Corporation began to do business on May 1, 1919, and, by instrument dated the same day, the New York Telephone Company and Jamestown Telephone Corporation entered into an agreement fixing the obligations of the parties in connection with joint traffic or the exchange of long distance telephone messages. The New York Telephone Company agreed to connect its telephone system with the system of the Jamestown Corporation. The New York Telephone Company, acting in behalf of both companies, filed with the Public Service Commission, in accordance with the Public Service Law (Cons. Laws, ch. 48), section 92, a schedule of tolls for the joint traffic. The local telephone corporation agreed to furnish switchboard and other service so that messages to points outside of the Jamestown district, but originating in the Jamestown district, and messages to subscribers in Jamestown, but originating outside of the Jamestown district, could be transmitted over the connected wires of both companies. For such services, payment was to be made in accordance with rates fixed by the contract and tolls upon joint messages were to be divided in accordance with a standard or measure defined in the contract. Since the date of that contract, the parties, pursuant to its terms, have exchanged telephone messages and, until March 1, 1932, payments were made in accordance with the terms of the contract, as subsequently modified in particulars not material to any question presented upon this appeal. Since that date, the defendant, Jamestown Telephone Corporation has made no payments to the plaintiff. The plaintiff brought this action to recover amounts which are due from the defendant pursuant to the terms of the contract, if the contract is still in existence and fixes the amounts to which each party would be entitled for services rendered and for its share of the tolls for messages passing over the lines of both parties. The defendant claims that the contract came to an end on March 1, 1932, and that upon the exchange of messages thereafter each party was under an obligation to pay the reasonable value of what it received from the other party, but not the amounts fixed by the contract.

The contract provided that. unless sooner terminated as herein provided, this agreement shall continue until the first day of May, 1929, and thereafter until the expiration of ninety (90) days after notice of termination given in writing by either party hereto to the other, unless terminated on said date by ninety (90) days’ previous notice so given.” It is undisputed that Jamestown Telephone Corporation gave notice of termination in writing ninety days before the 1st day of March, 1932. It is also undisputed that after March 1, 1932, the parties continued to render services and to exchange messages in the same manner as before that date. The plaintiff claims that the defendant, Jamestown Telephone Corporation, may not continue to exchange messages with New York Telephone Company as provided in the contract and reject or terminate the obligation created by the contract to pay the amount fixed by that contract. Obligation to pay for benefits received is not denied by the defendant. The issue between the parties is whether the amount to be paid must be measured in accordance with the terms of the express contract or in accordance with an implied contract to pay the reasonable value of such benefits.

Where, after the expiration of a contract fixing the reciprocal rights and obligations of the parties, they continue to do business together, the conduct of the parties may at times permit, or even constrain, a finding that the parties impliedly agree that their rights and obligations in connection with such business should continue to be measured as provided in the old contract. Even in such case, however, the reciprocal obligations arise from the new implied contract and, unless an intent to make such a new contract is expressed or may be fairly inferred from the conduct of the parties, the obligations of the parties are as matter of law not measured by the terms of the contract which has expired. (Harlem Gaslight Co. v. Mayor, 33 N. Y. 309.) No distinction, in principle, can be drawn here between a contract which, according to its terms, expires on a date fixed by the parties at the time the contract is made and a contract which expires at a date fixed thereafter by notice given in accordance with the terms of the contract. (Peoples Trust Co. v. Schultz Novelty & Sporting Goods Co., 244 N. Y. 14.) Here notice was so given and according to its terms the contract expired on March 1, 1932, unless that notice was withdrawn or rendered ineffective by subsequent acts or words of the parties. The problem presented upon this appeal is whether the notice was in fact withdrawn or rendered ineffective by the subsequent acts of the defendant.-

The defendant having given notice that the contract would end on March 1, 1932, did nothing in the interval which evinced any intention to withdraw the notice or which was in any way inconsistent with such notification. Nothing occurred thereafter which dictates or, indeed, permits an inference that the defendant intended to withdraw its notice. On the contrary, it affiraiatively appears from correspondence between the parties that the defendant did not intend to withdraw its notice and always contended that the contract was at an end; and the plaintiff recognized that the contract was terminated, though it did suggest, in a letter sent on February 23, 1932, a week before the termination of the contract, that pending the making of a new traffic agreement “ accounts between the two companies shall continue to be adjusted and paid monthly in accordance with the existing basis, subject, however, to subsequent adjustment in accordance with such bases as may be so agreed upon to be in effect on and after March 1, 1932.” The rights and obligations of the parties after March 1, 1932, cannot be measured by the terms of the contract which had come to an end on March 1st. Though after the expiration of an express contract, an implied contract containing the same terms may arise from the conduct of the parties, that is not the case here. Instead of implied acceptance of the old obligations, there was here express repudiation of such obligations. So the courts below have held.

Analogy is incomplete between cases where a party to a contract asserts a right to rescind for fraud or breach of contract and a case where a party to a contract asserts a right given by contract to limit its life by notice that the contract will terminate at a time fixed by the notice in accordance with the provisions of the contract. In the first group of cases there can be no rescission where the breach of contract or fraud has been waived by the party who has been wronged; and, as matter of law, right to rescind must be exercised promptly after the injured party learns of the wrong. Acceptance of benefit under the contract with knowledge of the wrong constitutes a waiver of the Wrong. Notice of rescission for wrong which has been waived is, of course, a futile act and even after notice of rescission has been given, the wrong may at times be waived or the rescission may be abandoned and the contract kept alive by act of the parties. Recognition that the contract is still in force may prove such abandonment and constitute a waiver of a previous breach. (Cf. Gravenhorst v. Zimmerman, 236 N. Y. 22, 32.) In the second group of cases the right to terminate is absolute and there can be no question of waiver of previous wrong and no question of right to retain benefits during the interval between notice of termination and the date when termination becomes effective.

The plaintiff leans heavily on the decision of this court in Cammack v. Slattery & Bro., Inc. (241 N. Y. 39) as authority for the contention that even where notice of termination is given pursuant to the express terms of a contract, the notice is futile if the party giving the notice thereafter accepts benefits under the contract. In that case, the defendant agreed to pay to the plaintiff royalties upon radiators, manufactured and sold by the defendant, which embodied ideas and conformed to plans of the plaintiff. The contract was terminable at will and it appears that the defendant gave to the plaintiff notices of a desire and intention to terminate ” the contract. Notice of termination was, however, accompanied by acts inconsistent with any intention to terminate, for the defendant continued to manufacture and sell the radiators and the court there said that, “ * * * of course, it would be unreasonable and inequitable to hold that the defendant might in form terminate its contract and then continue to manufacture radiators without the payment of any royalties such as it had agreed to pay ” (p. 45). The obligation of a contract terminable at will to pay royalties for the right to manufacture an article, according to plans and designs of another person, continues until the contract is effectually terminated, and effective termination does not arise from.mere notice of intention without relinquishment of benefits derived from the contract. In such case notice of intention is completely negatived by acts. Notice of intention to terminate a contract is an empty gesture where it appears that the intention is to terminate only the obligation imposed by the contract and not the right to benefits derived from the contract, for the contract gives no right of partial revocation. So we held in that case, but the rule has no application here for here on the date when the notice became effective according to the terms of the contract, nothing had been said or done which rendered the notice ineffective. Then the contract was at an end.

The plaintiff would not be in any better position even if it were assumed that the notice of termination could be rendered ineffective thereafter by any word or act of the defendant, inconsistent with the notice, or which would, as matter of law, constitute an affirmance of the contract for, in this case, no such word or act of the defendant has been shown. Both plaintiff and defendant are public service corporations and in the performance of their public functions they are subject to command and direction of the Public Service Commission. The so-called traffic agreement of 1919 fixed the right and obligations of the parties in respect to long distance messages over the lines of the parties. If the parties had not entered into such a written agreement, the Public Service Commission would have had power to direct that the lines be connected and that the two corporations give to the public service over the joint lines. Then, the Public Service Commission would also have fixed the service which each must perform and the proportion of the joint tolls which each should receive. (Public Service Law, § 97, subd. 3.) The duty to exchange messages and to give joint service did not arise solely from the contract and would not cease with termination of the contract. The public, too, has an interest in the performance of that duty and from the time that the parties filed a joint schedule for service to the public to be performed jointly, the public duty became fixed and could not be destroyed by mutual agreement without the approval of the Public Service Commission. Neither party attempted to withdraw or modify the schedule of rates filed with the Public Service Commission and until an application for such relief is made and is granted by the Commission, both companies are under a duty to continue to furnish joint service to the public. The termination of the contract had the effect, and was intended to have the effect, only of ending the reciprocal private obligations of the parties towards each other in connection with the joint service and the division of receipts therefrom. The defendant has not demanded or received from the plaintiff any service which the plaintiff was not bound to render so long as the joint schedule remained in effect. Continuance of a joint service to the public, which neither party could lawfully discontinue without permission of the Public Service Commission, is not in law or in fact inconsistent with notice of termination of a contract, fixing, as between the parties, rights and obligations in the performance of the joint service.

The judgment should be affirmed, with costs.

Loughran, Finch, Rippey and Conway, JJ., concur; Sears and Lewis, JJ., taking no part.

Judgment affirmed.


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    In the Matter of William C. Bridgman et al., Appellants and Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents and Appellants.

      Argued January 11, 1940;
    decided March 12, 1940.

      Albert B. Breslow, Herman D. Mines and I. Lloyd Cabin for petitioners, appellants and respondents.
    The Municipal Civil Service Commission was guilty of improper and arbitrary conduct in part one of the oral examination. (Matter of Sloat v. Board of Examiners, 274 N. Y. 367.) Part two of the teclmical-oral examination violated the constitutional and statutory provisions relating to civil service. (State Const., art. 5, § 6; Cons. Laws, ch. 7, §§ 14, 25; Matter of Fink v. Finegan, 270 N. Y. 356.)

      Abraham Bernard King and Joseph F. Ryan for Gustav G. Schoenchen et al., amici curiæ.

    Part one of the technical-oral test was illegally and arbitrarily conducted and rated. (Rosalsky v. State, 254 N. Y. 117; Stuart v. Palmer, 74 N. Y. 183; Matter of Richardson, 247 N. Y. 401; Carmody v. City of Mt. Vernon, 3 App. Div. 347; People ex rel. Davie v. Lynch, 164 App. Div. 517; Hellyer v. Prendergast, 176 App. Div. 383.)

      William C. Chanler, Corporation Counsel (Robert H. Schaffer, Paxton Blair and Denis B. Sullivan of counsel), for Paul J. Kern et al., constituting the Municipal Civil Service Commission of the City of New York, et al., defendants, respondents and appellants.
    The directions to the examiners in part one of the oral examination were valid and in full conformity with law. (Matter of Thomas v. Kern, 280 N. Y. 236; Matter of Snyder v. Finegan, 253 App. Div. 707 ; 278 N. Y. 665; Matter of Danziger v. Rice, 245 App. Div. 671.) The standards used in rating the competitors in the examination were objective and reviewable. (Matter of Fink v. Finegan, 270 N, Y, 356; 275 N. Y. 591; Matter of Snyder v. Finegan, 253 App. Div. 707; 278 N. Y. 665; Matter of Sloat v. Board of Examiners, 274 N. Y. 367.)

      Herbert A. Wolff, Jonas J. Shapiro and Justin N. Reinhardt for Joseph Jablonower, defendant, respondent and appellant.
    The examination conformed in all respects to the constitutional and statutory rules governing civil service examinations and appointments. (Matter of Sloat v. Board of Examiners, 274 N. Y. 367; Matter of Snyder v. Finegan, 253 App. Div. 707; 278 N. Y. 665.) The examination was conducted and rated in accordance with objective standards. (Matter of Sloat v. Board of Examiners, 274 N. Y. 367; Matter of Fink v. Finegan, 270 N. Y. 356; 275 N. Y. 591; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Snyder v. Finegan, 278 N. Y. 665.) Part one of the technical oral examination was properly conducted. (Hurley v. Board of Education, 270 N. Y. 275; Matter of Thomas v. Kern, 280 N. Y. 236.)
   Per Curiam.

We are of opinion that the technical oral examination was invalid for these reasons: (1) The direction that the examiners should fail not less than about one-half the total group of candidates was improper; (2) the instruction that the examiners adjust their ratings after consultation violated the civil service rule that Each subject shall be rated by two examiners acting separately (Rules of Municipal Civil Service Commission [New York City], rule 5, § 5, ¶ 1); (3) commentaries elicited from candidates were so vague or remote in character and broad in scope that the ratings in respect of soundness of the position taken ” disclosed only the unsupported conclusions of the examiners. (Cf. Matter of Sloat v. Board of Examiners, 274 N. Y. 367.)

We have not considered other matters referred to by the court below.

The order should be affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Order affirmed.