author: Desmond, J.

text:
    In the Matter of the Claim of Leo Sackolwitz, Claimant, against Charles Hamburg & Co., Inc., Respondent. Workmen’s Compensation Board, Appellant.
    Argued March 6, 1946;
    decided April 18, 1946.

      Nathaniel L. Goldstein, Attorney-General (Boy Wiedersum, Orrin G. Judd and Theodore M. Schwartz of counsel), for appellant.
    I. Section 14-a of the Workmen’s Compensation Law is a mandatory statute and a .minor illegally employed as therein provided must be awarded the benefits of its provisions. (Escoe v. Zerbst, 295 U S. 490; Emerson v. Mary Lincoln Candies, 173 Misc. 531, 174 Misc. 353, 261 App. Div. 879, 287 N. Y. 577; Matter of Graf v. Silver Creek Preserving Corp., 257 App. Div. 1090, 282 N. Y. 809; Bloomer Brewery v. Industrial Commission, 239 Wis. 605.) II. Violations of the Labor Law are malum prohibitum and a minor injured while employed in violation of section 131 of the Labor Law is entitled to the full compensation provision of the Workmen’s Compensation Law. Assuming that claimant did violate sectian 939 of the Penal Law, the Workmen’s Compensation Law does not except from its benefits employees who have obtained employment in violation of this section. (Matter of Kenny v. Union Ry. Co., 166 App. Div. 497; Hart v. N. Y. C. & H. R. R. R. Co., 205 N. Y. 317; City of New York v. Chelsea Jute Mills, 88 N. Y. S. 1085; People v. Taylor, 192 N. Y. 398; People v. Werner, 174 N. Y. 132; People v. West, 106 N. Y. 293.) III. Increased or double compensation is not penal or of such a nature whereby the employer should be granted any special consideration, even assuming that equitable considerations were present. (Bogartz v. Astor, 293 N. Y. 563.)- IV. The fact that there may have been deceit by an employee in obtaining employment does not defeat the right to double compensation. (Matter of Braiter v. Addie Co., 256 App. Div. 882, 282 N. Y. 326; Masullo v. Centaur Paper Mills Supply Corp., 264 App. Div. 979; Bloomer Brewery v. Industrial Commission, 239 Wis. 605.)

      Leonard Klaber for respondent.
    I. Statutes relating to double indemnity are penal statutes, and as the employer was guilty of no fault, either of omission or commission, he should not be punished. (Matter of Tesar v. National Ventilating Co., 227 App. Div. 333; People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25.) II. Claimant committed a crime in obtaining the employment and should not be permitted to benefit by his own wrong. (Penal Law, § 939; Matter of Sparks, 172 Misc. 642; Biggs v. Palmer, 115 N. Y. 506.) I'll. The statutes are a shield for the protection of minors, but are not. to be used as concealed weapons or for undue enrichment. (Bogartz v. Astor, 293 N. Y. 563.)
   Desmond, J.

Claimant Leo Sacklowitz was injured while working, under the name of his older brother Jack Sacklowitz, for the employer-respondent. When applying for the job, claimant had presented a referral card issued to his brother by an employment agency, and, when asked by the employer for his social security number, had given the number of his brother. In fact, claimant was under, while his brother was over, eighteen years of age. The employment of one under eighteen years of age in respondent’s factory was prohibited by sections 130 and 131 of the Labor Law. The Industrial Board - allowed claimant double compensation under section ■14-a of the Workmen’s Compensation Law. That section says that compensation “ shall be double the amount otherwise payable if the injured employee at the time of the accident is a minor under eighteen years of age employed, permitted or suffered to work in violation of any provision of the labor law * * * In another part of the section it is provided that an official age certificate issued by a superintendent of schools or by an employment certificating officer shall be conclusive evidence for an employer that the minor has reached the age certified to therein * * * ”. No such certificate was obtained here.

The Appellate Division reversed so much of the award as had doubled the amount otherwise recoverable, the majority of that court stating, among other things, that “ Claimant obtained employment by aid of a false statement in writing as to his identity in violation of the Penal,Law (§ 939).” (269 App. Div. 803.) The presiding justice, dissenting, noted that violations of the,Labor Law are malum prohibitum (see, as to this, Penal Law, § 1275, also People v. Taylor, 192 N. Y. 398, 400, and People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25). Claimant appeals to this court.

The well-understood purposes of the Workmen’s Compensation Law compel the conclusion that the obligation imposed by section 14-a is absolute. Equally compelling is the particular history and special intent of that section. In Bogartz v. Astor (293 N. Y. 563), we held that the additional payment exacted by section 14-a is not a penalty but is, as the statute itself calls it, “ increased compensation ”. Imposed at a higher rate, it differs in amount, but not in character, from the lesser compensation awarded to injured adult workers. It is not, we made plain in Bogartz v. Astor (supra, p. 566), “ a mere pecuniary punishment of the employer ” nor is it “ anything essentially different, from the other monetary benefits secured by the statute to workmen and their dependents.” In Matter of Molnia v. Kaplan & Co. (293 N. Y. 700), also, we held that section 14-a imposes no penalty, but simply grants compensation at a higher rate, and so held the Circuit Court of Appeals in the Dearborn case (In re Dearborn Mfg. Corporation, 92 F. 2d 417, certiorari denied sub nom. Klipstein v. Davidowicz, 303 U. S. 648), involving the same award affirmed in Matter of Davidowicz v. Klipstein (272 N. Y. 543). Since the recovery is workmen’s compensation and nothing else, the award cannot be made to depend on the equities of a particular case (see Matter of Graf v. Silver Greek Preserving Corp., 257 App. Div. 1090, leave to appeal denied, 282 N. Y. 809) nor can it be denied to a worker because of his fraud (Matter of Kociolowicz v. Tonawanda Corrugated Box Co., 252 App. Div. 716, leave to appeal denied, 276 N. Y. 689). Workmen’s compensation is given without reservation and wholly regardless of any question of wrongdoing of any kind ” (Matter of Post v. Burger S Gohlke, 216 N. Y. 544, 550). Despite the misrepresentations, the relationship of employer and employee existed between these parties (Kenny v. Union Railway Co., 166 App. Div. 497; Minneapolis, etc., R. Co. v. Borum, 286 U. S. 447; Hart v. N. Y. C. & H. R. R. R. Co., 205 N. Y. 317; see Matter of Clarke v. Town of Russia, 283 N. Y. 272, 274). To that relationship the law attached a duty to pay compensation and the law itself defines the measure of that compensation (Matter of Smith v. Heine Boiler Co., 224 N. Y. 9, 12; see Matter of Sweeting v. American Knife Co., 226 N. Y. 199, 201; Westchester L. Co. v. Westchester C. S. E. Corp., 278 N. Y. 175, 180). The act is complete in itself and the only exceptions permitted are those specially stated in section 10 (intoxication or willful injury). An injured worker may not waive, assign or compromise his compensation or subject it to the claims of his creditors (Workmen’s Compensation Law, §§ 32, 33; Matter of Cretella v. New York Dock Co., 289 N. Y. 594). All this, as Chief Judge Cardozo wrote, follows from the legislative purpose that the claimant is to be protected against his own improvidence or folly ” (Surace v. Donna, 248 N. Y. 18, 22). The equitable doctrine of estoppel thus has no place at all in the law of workmen’s compensation. Indeed, we, in effect, so held as recently as Matter of Braiter v. Addie Co. (282 N. Y. 326) and as long ago as Matter of Cross v. General Motors Corp. (249 N. Y. 522). Accordingly, to uphold the award in the present case, we need not consider the cases which say that the doctrine of estoppel is rarely if ever applied to infants ” (International Text Book Co. v. Connelly, 206 N. Y. 188,196) or the cases which say that an infant “ is not estopped from pleading his infancy by any representation as to his age made by him. to induce another, person to contract with him ” (Sternlieb v. Normandie Nat. Sec. Corp., 263 N. Y. 245, 247).

The history of section 14-a confirms the view that misrepresentations as to age or identity, made to obtain employment, do not affect the result at all. Before there was a Workmen’s Compensation Law, a master sued by an injured infant worker-whom he had employed in violation of the Labor Law, could be held liable for failing to exercise due care in ascertaining the facts as to the werker’s age (Koester v. Rochester Candy Works, 194 N. Y. 92). This court held that “ estoppel ” had nothing to do with the matter (p. 96). The gist of the liability there enforced was negligence and there was no negligence if the employer had made proper inquiries. The first workmen’s compensation statutes had no section 14-a and made no specific provision for awards of workmen’s compensation to injured infants whose employment violated the Labor Law. When, after the enactment of the Workmen’s Compensation Law, such an infant attempted to bring a negligence action against his-employer, the courts dismissed it, holding that the exclusive liability provision of section 11 of the Workmen’s Compensation Law forbade the prosecution of the suit (Noreen v. Vogel & Bros., Inc., 231 N. Y. 317). The express ground of that decision was that the relation of employer and employee existed between them, irrespective of the fact that the plaintiff secured employment by misrepresentation as to his age and that defendant omitted the exercise of due diligence to ascertain his age ” (p. 322). Legal or illegal, employment and subsequent injury brought the case under the Workmen’s Compensation Law and neither the worker’s misrepresentations nor the master’s carelessness in discovering them barred an award. Two, years after the Noreen decision the Legislature enacted section 14-a. Undoubtedly the Legislature was following a recommendation contained in the second report of the “ Now York State Commission to" Examine Laws Relating to Child Welfare ” (Legislative Document No. Ill of 1923). That report cited figures gathered by the State Labor Department which showed numerous seriously disabling accidents involving young children illegally employed. The commission pointed out that a provision for double compensation would bring the • compensation award to such a claimant nearer in amount to what the child could formerly have recovered in an action, and that it was unfair to take away the valuable special rights which had been available to such a worker prior to the passage of the act (citing Karpeles v. Heine, 227 N. Y. 74), and give him in return only compensation measured by a percentage of his small wages. The report further pointed out that, under the proposed double-compensation statute, employers could readily protect themselves by getting employment certificates. All this, we think, makes it entirely clear that the statute’s mandate for double compensation is absolute, where, as here, no employment certificate has been obtained by the employer. If the Legislature had intended to except such a situation as is presented by this case, it could have said so (see Bloomer Brewery, Inc., v. Industrial Comm., 239 Wis. 605, enforcing the Wisconsin triple-damage statute after which ours was modelled). It may be, as the Appellate Division majority said, that claimant’s use of a false writing to obtain employment, was a violation of section 939 of the Penal Law. Nonetheless, “ the Workmen’s Compensation Law does not except from its benefits employees who have obtained employment in violation of. this provision of the Penal Law ” (Kenny v. Union Railway Co., supra, 166 App. Div. at p. 501).

The order of the Appellate Division should be reversed ana the award reinstated, with costs in this court and in the Appellate Division.

Lottghban, Ch. J., Lewis, Conway, Thaoher and Dye, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Virginia Gilbert, as Guardian ad Litem of Florence Gilbert, an Infant, et al., Respondents, v. Stanton Brewery, Inc., Appellant.
    Argued February 27, 1946;
    decided April 18, 1946.

      William E. Lyons for appellant.
    The erroneous charge of the trial court as to the applicable law of damages constituted a prejudicial error of law. (Matter of Bronx Parkway Commission, 192 App. Div. 412, 230 N. Y. 607; Matter of City of Rochester [Smith St. Bridge], 234 App. Div. 583; Kanzer v. Heffron, 235 App. Div. 646; U. S. Rubber Co. v. Silverstein, 229 N. Y. 168; Saxton v. Weaver, 221 App. Div. 817; Moore v. Rosenmond, 238 N. Y. 356; Bennett v. Crescent Athletic-Hamilton Club, 270 N. Y. 456; Dibble v. Whipple, 281 N. Y. 247; Green v. Van Cott, 230 App. Div. 633; Barnes v. Keene, 132 N. Y. 13; Werbolovsky v. N. Y. & B. Despatch Ex. Co., 63 Mise. 329; Cuming v. Brooklyn City R. R. Co., 109 N. Y. 95; Clarke v. Eighth Avenue R. R. Co., 238 N. Y. 246; Ganly v. Steel Storage & Trucking Corp., 259 N. Y. 396.)

      Benjamin B. Hersh and Leo E. FalJcin for respondents.
    I. The judgment insofar as it affects the infant plaintiff is not challenged on this appeal, and should be affirmed. (City of Buffalo v. D., L. & W. R. R. Co., 176 N. Y. 308.) II. The unanimous determination by the Appellate Division that under the proof in the case the erroneous instruction in the mother’s loss of service action was not prejudicial to the defendant, and should be disregarded under the provisions of section 106 of the Civil Practice Act, was proper and accomplished substantial and practical justice. (Dollard v. Roberts, 130 N. Y. 269; Schaffer Stores Co. v. Vogel, 226 App. Div. 829.)
   Lewis, J.

Personal injuries suffered by the infant plaintiff have led to the present suit. In the complaint two causes of action are pleaded, one of which is by the infant plaintiff’s mother who as guardian ad litem seeks damages for the personal injuries sustained by her minor child which are alleged to have been caused solely by the defendant’s negligence. Upon this appeal we are concerned chiefly with another separate cause of action pleaded by the infant plaintiff’s mother but in this instance in her own behalf. In that separate cause of action the infant plaintiff’s mother alleges that solely by reason of the defendant’s fault she was “ deprived of the companionship, and services of her infant daughter ” and was put to a considerable expense to effect her daughter’s cure — for all of which the mother seeks for herself damages in a substantial amount.

Upon the trial a jury awarded to the infant plaintiff $2,500. In the mother’s action the award in her favor was $1,000. The judgment entered upon that verdict having been unanimously affirmed at the Appellate Division, we granted leave to the defendant to appeal to this court.

Coming directly to the single point in the case, the record shows that in his charge to the jury the Trial Judge gave the following instruction: “Now, of course, with respect to the mother’s claim, you may award her such reasonable amount as you believe she is entitled to for loss of companionship, services of her daughter, and also she can be reimbursed for any monies that she has expended or will expend in curing her daughter of her injury, and, of course, you should not allow an amount for the claim by the mother of more than $3,000 as guardian ad litem for the infant and an amount of more than $1,000 for the mother herself.” (Emphasis supplied.)

That instruction was challenged by the appellant by an exception which preserves to it the right in this court again to assert that challenge.

As to the portion of the court’s charge quoted above the Appellate Division has ruled: “ While the court erred in charging in the action for loss of services that the mother was entitled to be compensated for loss of companionship of the infant daughter (Werbolovsky v. N. Y. & B. Despatch Exp. Co., 63 Misc. 329), it may not be said under the proof in this case that the error was prejudicial. (Civ. Prac. Act, § 106.) ” (269 App. Div. 944.)

Concluding, as we do, that the exception to the charge in question was well taken, we cannot say that under the proof in this case the error was not prejudicial. Indeed it may well be that a substantial portion of the jury’s verdict of $1,000 in the mother’s favor — which was $775 in excess of the special damages proven — was based upon the element of the mother’s loss of her minor child’s companionship, the value of which the jury was permitted to appraise and to assess against the defendant.

If injuries sustained by the infant were due to actionable fault of the defendant, the infant’s mother was entitled to recover from the defendant damages measured by the pecuniary loss she sustained thereby including the value of her daughter’s services, if any, of which she was deprived and reasonable expenses necessarily incurred by the mother in an effort to restore the infant to health. (Barnes v. Keene, 132 N. Y. 13,15; Cuming v. Brooklyn City R. R. Co., 109 N. Y. 95, 96-100; Clarke v. Eighth Ave. R. R. Co., 238 N. Y. 246, 251.)

The respondents’ brief before us — although conceding that there was legal error in that portion of the charge which included as an element of the mother’s damage the loss of her minor daughter’s companionship — suggests that the record before us warrants disregard of the error. Our conclusion is to the contrary. Here, as was said by Vann, J., writing for this court in Barnes v. Keene (supra, at p. 17), the challenged instruction “ bears upon the result because it presented to the minds of the jury an improper element of damages

The appellant points to no error of law with respect to the separate cause of action upon which the infant plaintiff by her guardian ad litem was awarded a verdict of $2,500. In those circumstances there should be a severance as to that part of the judgment which provides for a recovery by the infant plaintiff in the amount of $2,500, which should be affirmed. That part of the judgment which provides for recovery by the infant plaintiff’s mother, individually, in the amount of $1,000 should be reversed and a new trial granted as to the separate cause of action upon which that portion of the judgment rests. (City of Buffalo v. D. L. & W. R. R. Co., 176 N. Y. 308, 311-313; Bremer v. Manhattan Ry. Co., 191 N. Y. 333, 340-341. See, also, Nau v. Vulcan Rail & Construction Co., 286 N. Y. 188, 200-201; Civ. Prac. Act, § 584.)

' The judgment insofar as it provides for recovery by Virginia Gilbert, as guardian ad litem of Florence Gilbert, an infant, against the defendant in the amount of $2,500 should be affirmed, with costs; insofar as the judgment provides for recovery by Virginia Gilbert, individually, in the amount of $1,000 it should be reversed and a new trial granted as to that cause of action upon which that portion of the judgment rests, with costs to. abide the event.

Loughran, Ch. J., Conway, Desmond, Thacher and Dye, JJ., concur; Medalie, J., deceased.

Judgment accordingly.


text:
    Joseph Hoar, Respondent, v. City of Yonkers et al., Appellants.
    Argued January 14, 1946;
    decided April 18, 1946.

      Jolm J. Broderick, Corporation Counsel (J. Raymond Han-non of counsel), for appellants.
    I. Neither the State Constitution, nor any statute of the State or local law, created a contract on July 2, 1940, which included the terms set forth in the declaratory judgment. Local Law No. 12 of 1941 and No. 8 of 1942, if said local laws cannot be amended or repealed, were not enacted in conformity with section 15 of the City Home Rule Law. (People ex rel. Devery v. Coler, 173 N. Y. 103.) II. The provisions of Local Law No. 12 of 1941 and Local Law No. 8 of 1942, if validly enacted, are constitutional in their entirety and do not contravene the provisions of section 7 of article V of the State Constitution. III. Plaintiff, if said local' laws are valid in their entirety, is not entitled to the additional pension or retirement benefits therein provided for. ,

      Leonard O. McAneny and Sheldon L. Pollock for respondent.
    I. The local laws, containing provisions held by Special Term to be terms of the contract between plaintiff and defendants, took effect pursuant to sections 16 and 17 of the City Home Rule Law. II. Plaintiff’s pension contract now legally includes those terms of the 1941 and 1942 Local Laws which do not conflict with the provisions of the State Constitution. III. The provisions of section 7 of article V of the State Constitution together with the facts and provisions of law then existing, created a contract as of July 2, 1940, between plaintiff and defendants including those terms set- forth in the declaratory judgment as to amount of pensions and payments into the pension fund. (Pennie v. Reis, 132 U. S. 464; Matter of Friel, 101 App. Div. 155; People ex rel. Price v. Woodbury, 38 Misc. 189; Stokes v. Stokes, 148 N. Y. 708; Mahaney v. Carr, 175 N. Y. 454; Cochran v. Taylor, 273 N. Y. 172; Winne v. Winne, 166 N. Y. 263; Weinberger v. Van Hessen, 260 N. Y. 294.)
   Lewis, J.

The plaintiff, a member of the Firemen’s Pension Fund of the City of Yonkers, by his complaint in the present action demands a declaratory judgment which will determine his pension rights. By a counterclaim interposed in their answer the defendants also demand a judgment declaring the plaintiff’s pension rights which are pleaded on a basis different than that asserted by the plaintiff. After a reply had been served cross motions by the plaintiff and the defendants were made under rule 112 of the Rules of Civil Practice for judgment on the pleadings. The order made at Special Term, which granted plaintiff’s motion and denied that of the defendants, has been affirmed unanimously at the Appellate Division. The case reaches us upon the defendants’ appeal by leave of the Appellate Division upon a certificate that questions of law are presented which should be the subject of our review.

From allegations in the complaint which are not denied it appears that the plaintiff qualified under his appointment as a fireman on March 16, 1933. Since that date he has been a member of the Firemen’s Pension Fund. (Supp. Charter of the City of Yonkers, art. XI'I [L. 1908, ch. 452] as amended and superseded by Local Law No. 2 [1931] of City of Yonkers.) During the period of his service the plaintiff’s compensation has been increased from his initial annual salary in 1933 of $1,940 until March 16,1940, when it reached the maximum of $3,000 and remained at that amount until March 1,1941. On the latter date his compensation as fixed by the city budget was reduced to $2,625 per annum and has since remained at that figure. From that reduced annual compensation the Comptroller of the City of Yonkers, assuming to act'under section 2 of article XII of the Supplemental Charter of that city as amended and superseded by Local Law No. 6 of the City of Yonkers (Local Laws, 1940), had deducted 5% and has paid such deduction to the Firemen’s Pension Fund as the plaintiff’s required contribution thereto.

In the meantime there had become effective an amendment to the State Constitution, adopted by the people on November 8, 1938, which added to article V the following new section: “ Membership in retirement systems; benefits not to be diminished nor impaired. § 7. After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.”

-. — Thereafter,- on December 29, -1941, the.Common Council of the City of Yonkers adopted Local Law No. 12 (eff. Feb. 12, 1942 [published in Local Laws, 1942, p. 544]), entitled “ A local law to protect the pension and retirement rights of members or officers of the bureau of police and the bureau of fire,- department of public safety of the city of Yonkers and of the widows of such members, or officers.” Under the provisions of Local Law No. 12 (1941) as amended by Local Law No. 8 of 1942 [published in Local Laws, 1943, p. 554] the plaintiff or his widow, as the case may be, became entitled to certain prescribed pension rights based upon the compensation he would have received if the salary schedules and increments which existed immediately prior to March' 1, 1941, had continued without the reduction, unless. within a stated time the plaintiff had filed with the Commissioner of Public Safety and the Comptroller of the City of Yonkers, a certificate in prescribed form stating his election to have his pension rights and the pension fund contributions of himself and the City of Yonkers computed on the basis of his compensation as reduced.

Concededly, the plaintiff did not sign and file the certificate required by Local Law No. 12 (1941) as amended by Local Law No. 8 (1942). Instead he delivered such certificate throúgh official channels to the Commissioner of Public Safety, unsigned, with an indorsement on the reverse side thereof reading Joseph J. Hoar not interested.” Despite the plaintiff’s failure to execute the certificate in conformity with Local Law No. 12 (1941) we may assume that the Comptroller of the City of Yonkers treated the instrument as an election by the plaintiff to contribute to the Firemen’s Pension Fund on the basis of his reduced salary. Thereafter the plaintiff’s contributions were computed on that basis.

In this action the plaintiff has thus far successfully maintained that article Y, section 7, of the Constitution, reinforced by Local Law No. 12 (1941) and Local Law No. 8 (1942) — which, under stated conditions, provide for pension benefits based on compensation paid immediately prior to the reduction made effective March 1, 1941 -— served to bring into existence a contract whereby, upon his retirement or death under conditions giving rise to pension rights, either he or his widow, as the case may be, will be entitled to receive a pension equal to one-half the annual compensation of $3,000 which he received immediately prior to March 1,1941, when his compensation was reduced to $2,625 per annum, and that his contributions to the Firemen’s Pension Fund, deductible monthly at the rate of 5% of his compensation, should be computed on the basis of his reduced salary.

We find nothing in the text of article V, section 7, of the Constitution or in any State statute or local law which withholds from the appropriate official body of the City of Yonkers the power to reduce or increase the compensation which the plaintiff shall receive and which serves as the basis for computing his pension rights. The constitutional provision, as we have seen, recognizes the plaintiff’s membership in the firemen’s pension system of the City of Yonkers to be a contractual relationship.” On July 2, 1940, when the operative provisions of article V, section 7, became effective, the terms of the contract fixing the plaintiff’s pension rights were defined by Local Law No. 6 (1940) which — under stated conditions and upon contributions to the Fireman’s Pension Fund computed on his annual compensation, which might be reduced or increased from time to time — made available to him or to his widow a pension equal to one-half the annual compensation received by him at the date of his retirement or death.

It follows that without regard for rights, if any, to which the plaintiff may be entitled under Local Law No. 12 (1941) as amended by Local Law No. 8 (1942) the contractual relationship created by article V, section 7, of the Constitution was not such as entitled the plaintiff to retirement benefits equal to one-half his former maximum annual salary of $3,000 when his contributions to the Firemen’s Pension Fund since March 1, 1941, have been based upon his reduced compensation of $2,625 per annum. The pleadings do not permit us to pass upon the rights, if any, to which the plaintiff may be entitled under Local Law No, 12 (1941) as amended by Local Law No. 8 (1942).

The judgments should be reversed, the plaintiff’s motion for judgment on the pleadings denied, and a declaratory judgment directed in accordance with the relief demanded by the defendants’ counterclaim, without costs. [See 295 N. Y. 981.]

Lotjghban, Ch. J., Conway, Desmond, Thaoheb, Dye ■ and Medalie, JJ., concur. ■

Judgments reversed, etc.


text:
    Edward C. La Vaud, as Executor of Ellen F. Murphy, Deceased, Appellant, v. Mae M. Reilly, Respondent.
    Argued January 8, 1946;
    decided April 18, 1946.

      Joseph Apfel for appellant.
    I. Respondent cannot claim that the instrument of September 6, 1921, was invalid because she accepted the said trust, had acted as trustee and received the benefits thereof. • (Wittner v. Burr Avenue Development Corporation, 222 App. Div. 285; Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458; Kantor v. Cohn, 164 N. Y. 383.) H. Decedent had the right to terminate one trust and to create a new trust on September 6, 1921, with a new trustee, the respondent. III. The instruments of December 15, 1921, and of November 11, 1922,* did not supersede the instrument of September 6, 1921, but supplemented it. (O’Neil Supply Co. v. Petroleum H. & P. Co., 280 N. Y. 50; Imperator Realty Co. v. Tull, 228 N. Y. 447; Meinhard v. Salmon, 249 N. Y. 458.) IV. The decision in Hanckel v. Reilly (N. Y. L. J., Dec. 10,1934, p. 2297) is not res judicata as to appellant. (Good Health Dairy Products Corp. v. Emery, 275 N. Y. 14; Elder v. New York & Penn. Motor Express, Inc., 284 N. Y. 350; Hirschberg v. Meadow Brook Farms, 34 N. Y. S. 2d 378; In re Smith’s Will, 24 N. Y. S. 2d 233.)

      Chester B. McLaughlin, Alfred P. O’Hara and James S. Bennett for respondent.
    I. Respondent’s duty to account by express agreement with decedent, ran to Hanckel. (Woerz v. Rademacher, 120 N. Y. 62; Kissam v. Dierkes, 49 N. Y. 602; Lieberman v. Templar Motor Co., 236 N. Y. 139; Matter of Bonnaffe, 23 N. Y. 169; Renard v. Sampson, 12 N. Y. 561; Price v. McGown, 10 N. Y. 465; Crimmins v. Carlyle Realty Co., 132 App. Div. 664, 196 N. Y. 532; Housekeeper Pub. Co. v. Swift, 97 F. 290; Restatement of Contracts, § 408; Townshend v. Frommer, 125 N. Y. 446; Manice v. Manice, 43 N. Y. 303; Crittenden v. Fairchild, 41 N. Y. 289.) II. Respondent was accountable to Hanckel by operation of law. III. Appellant did not terminate Hanckel’s trusteeship on September 6, 1921. IV. It has been judicially determined that respondent has accounted for all moneys which came into her possession, and. has fully performed her trust duties. V. The decision in Hanckel V. Reilly (N. Y. L. J., Dec. 10, 1934, p. 2297) is res judicata as to appellant. (City of New York v. New York City Ry. Co., 193 N. Y. 543; Williams v. Barkley, 165 N. Y. 48; Stamp v. Franklin, 144 N. Y. 607; Jackson v. Tallmadge, 246 N. Y. 133; Matter of Straut, 126 N. Y. 201; Watson v. Chicago, Rock Island & Pacific R. R. Co., 169 App. Div. 663; Mayor v. Brady, 115 N. Y. 599.)
   Lewis, J.

By this action in equity the plaintiff as executor of the estate of Ellen F. Murphy, deceased, seeks an accounting by the defendant, Mae M. Reilly, who is alleged to "be a trustee of an inter vivas trust created by the decedent for her own benefit. Such trust was created by plaintiff’s decedent as settlor by an instrument dated September 6, 1921, purporting to convey to the defendant Reilly as trustee certain parcels of real property which were the subject of earlier trusts executed in 1908 and 1910 in which one Daniel H. Hanckél was named as trustee. By two subsequent alleged trust instruments Hanckel, as-settlor, at the request of the decedent conveyed to the defendant substantially the same parcels of land with other property. In one of two purported trust instruments last mentioned above provision was made for the defendant to account to Hanckel upon his request.

The case was submitted at Special Term upon stipulated facts as to which the positions taken by the parties were as follows: The plaintiff contended (1) that under the three instruments in which the defendant is named as trustee she became obligated to account to the plaintiff’s decedent; (2) that in the event the court should determine that the instruments did not create such obligations, by dealing with the property as trustee the defendant incurred an obligation to account; and (3) that the defendant has never accounted under the trust so created. The defendant contended (1) that no duty to account to plaintiff’s decedent arose under the instrument of September 6,1921, inasmuch ás (a) such instrument was invalid, (b) it was superseded by the two subsequent instruments executed by Hanckel to the defendant and (c) plaintiff is not the real party in interest under the terms of the instrument dated September 6, 1921; (2) that the defendant was under no duty to account to Hanckel under the two subsequent instruments executed by him to the defendant, because they were invalid, and (3) that if defendant had any duty to account to Hanckel it has been judicially determined that the defendant has so accounted.

Special Term determined that there was a legal duty by the defendant to account to the plaintiff which had not been fulfilled. An interlocutory judgment was thereupon entered which directed defendant to account, or — pursuant to the terms of the stipulation — to submit proof that she had so accounted to plaintiff’s decedent. Defendant has not presented such proof. Instead, she appealed to the Appellate Division where the interlocutory judgment was reversed on the law and facts and the complaint was dismissed. The basis for such reversal was that the, purported trust of September 6, 1921, was superseded by the two subsequent alleged trust instruments which required defendant to account only to Hanckel and that in a prior action by Hanckel against the present defendant (Hanckel v. Reilly, N. Y. L. J., Dec. 10, 1934, p. 2297, col. 5) it was held that she had accounted. The Appellate Division thereupon ruled that such “ adjudication against Hanckel, the trustee, binds the beneficiary Murphy [the decedent] and her successors.” (268 App. Div. 390, 394.)

We are not in accord with the ruling by the Appellate Division that the two subsequent instruments in which Hanckel was named as settlor and the. defendant as trustee superseded the instrument of September. 6, 1921, executed by the plaintiff’s decedent, as settlor and by the defendant as trustee. It is not disputed and we proceed on the assumption that plaintiff’s decedent and the defendant intended on September 6, 1921, to create a valid trust. By that instrument the defendant agreed to act as trustee for plaintiff’s decedent and thereafter exercised control over property within the corpus of the trust. At that time, however, there were in existence the two instruments executed in 1908 and 1910, respectively, in which Hanckel had been named trustee of land which included the same property which plaintiff’s decedent thereafter conveyed in trust to the defendant by the instrument of September 6, 1921. Thus it is apparent that to avoid any question as to the validity of the .September 6,1921, instrument, Hanckel, at the request of plaintiff’s decedent, executed the two subsequent instruments in which he designated the defendant as trustee. Those facts lead us to conclude, as did the justice at Special Term, that the two subsequent instruments supplemented rather than superseded the instrument of September 6, 1921.

Nor do we agree that the decedent and her successors in interest were bound by the adjudication in the action brought by Hanckel against the present defendant. In the latter action Hanckel instituted the proceeding in his own behalf — not in his representative capacity as trustee for plaintiff’s decedent. In those circumstances plaintiff’s decedent should not be bound by an adjudication in an action in which she was not a party.

By the instrument of September 6, 1921, the defendant, with knowledge of all the facts, undertook to act as trustee for plaintiff’s decedent. Assuming, but not deciding, that such instrument did not create a valid trust, the defendant agreed to act thereunder and in reliance upon her promise plaintiff’s decedent put into defendant’s possession and. control the property which was the subject of the trust.

The record contains no proof that the defendant has ever accounted to plaintiff’s decedent or to anyone in her behalf.

Without an accounting a court of equity should not permit retention by the defendant of property received from plaintiff’s decedent for the admitted purpose of undertaking a trust merely because of the invalidity of the trust instrument under which the defendant assumed her duties. The defendant should not be permitted to escape the duty to account for the property which plaintiff’s decedent put into her possession and over which she exercised control both before and after the decedent’s death. What was said for this court by Andrews, J., in Fur & Wool Trading Co., Ltd., v. Fox, Inc. (245 N. Y. 215, 217-219) applies with equal force to our present problem:

“ * * * in certain cases equity will entertain a suit for an accounting. This is so where such a relation exists between the parties as under established principles entitles the one to demand it of the other. (Schantz v. Oakman, 163 N. Y. 148; Brown v. Corey, 191 Mass. 189.) A trustee in possession of trust funds may in a proper case be called to account to his cestui que trust (Brinckerhoff v. Bostwick, 105 N. Y. 567), and this rule is enforced as well where the trust is implied as -where it is express. (Hawley v. Cramer, 4 Cow. 717.) * * *

* * * The method by which equity proceeds in all these cases is to turn the wrongdoer into a trustee. If it may do so for the purpose of subjecting identified funds to the claim of the defrauded party, I do not see why it should not pursue the same method wherever it is necessary to protect the rights of the original owner.” (Emphasis supplied.)

It is not the promise only, nor the breach only, but unjust enrichment under cover of the relation of confidence, which puts the court in motion.” (Sinclair v. Purdy, 235 N. Y. 245, 253.) And see Foreman v. Foreman (251 N. Y. 237, 242); Fur & Wool Trading Co. Ltd., v. Fox, Inc., supra, pp. 217-219); Bloomquist v. Farson (222 N. Y. 375, 380); 4 Pomeroy’s Equity Jurisprudence [5th ed.], §§ 1032, 1042, 1044; Restatement of the Law of Trusts, ch. 12, § 422 at p. 1305.

The judgment entered pursuant to the order of the Appellate Division should be reversed and the case remitted to Special Term to proceed in conformity with the interlocutory judgment entered on the decision of that court, with costs in this court and in the Appellate Division. [See 295 N. Y. 941.]

Loughban, Ch. J., Conway, Desmond, Thagher, Dye and Medalie, JJ., concur.

Judgment accordingly.


author: Conway, J.

text:
    In the Matter of Nicholas A. Tonis, Appellant, against Board of Regents of the University of the State of New York, Respondent.
    Argued January 17, 1946;
    decided April 18, 1946.

      Emanuel Wexler, Harry A. Gordon and Irving Gordon for appellant.
    I. Improper issuance of a prescription for narcotics by a physician is and has always been a misdemeanor under New York State law. (United States v. Jin Fuey Moy, 241 U. S. 394; M. A. Baptist Church v. Baptist Church in O. St., .46 N. Y. 131.) II. The directions contained in the statute and every rule and canon of statutory interpretation favor a misdemeanor construction. (People ex rel. Carollo v. Brophy, 294 N. Y. 540; People ex rel. Marks v. Brophy, 293 N. Y. 469; Town of Putnam Valley v. Slutzky, 283 N. Y. 334; Matter of Wing v. Ryan, 255 App. Div. 163, 278 N. Y. 710.) III. The statute must be given its obvious import. (Cooper-Snell Co. v. State, 230 N. Y. 249.) IV. Presumably, the enumeration in the statute "of “ sell ” and “ prescribe ” was intended to state separate and different crimes. (Town of Fort Edward v. Hudson Valley Railway Co., 127 App. Div. 438; Allen v. Stevens, 161 N. Y. 122; People v. Ruthven, 160 Misc. 112; Catalanello v. Cudahy Packing Co., 27 N. Y. S. 2d 637, 264 App. Div. 723.) V. Ordinary words must be given the' common meaning they have for the average person. (People v. Shakun, 251 N. Y. 107; Matter of Fimiani v. Board of Appeals of City of Buffalo, 233 App. Div. 552, 258 N. Y. 613; Matter of Hudson-Harlem Valley Title & Mortgage Co. v. White, 251 App. Div. 1, 276 N. Y. 603; Matter of Cowles v. Board of Regents, 266 App. Div. 629; Cooper-Snell Co. v. State of New York, 230 N. Y. 249; People v. Stoll, 242 N. Y. 453.) VI. The Federal statute and decisions relied on by the court below are irrelevant. VII. People v. Gennaro (261 App. Div. 533, 287 N. Y. 657) does not support the decision appealed from.

      Nathaniel L. Goldstein, Attorney-General {Henry S. Manley, Orrin G. Judd, Wendell P. Brown and Edward L. Ryan of counsel), for respondent.
    The crime to which petitioner pleaded guilty is a felony under the laws of the United States, and the illegal acts upon which the conviction was based constitute a felony under the laws of the State of New York. (Jin Fuey Moy v. United States, 254 U. S. 189; Manning v. United States, 31 F. 2d 911; Nigro v. United States, 117 F. 2d 624; United States v. Abdallah, 149 F. 2d 219; People v. Gennaro, 261 App. Div. 533, 287 N. Y. 657; Menna v. Menna, 102 F. 2d 617; United States v. Doremus, 249 U. S. 86; People ex rel. Liss v. Supt. of Women’s Prison, 282 N. Y. 115; American Surety Co. v. Marotta, 287 U. S. 513; People ex rel. Estate of Woolworth v. S. T. Comm., 200 App. Div. 287; Matter of Goetz, 71 App. Div. 272.)
   Conway, J.

This is an appeal from an order of the Appellate Division, Third Department, confirming the determination of respondent Board of Regents pursuant to which an order was made revoking petitioner’s license to practice medicine in this State and canceling of record his registration as a physician. The revocation of license was upon the ground that petitioner had been convicted of a felony.

The relevant provisions of the Education Law (§ 1264, subd. 1; § 1251) provide, in part, as follows:

“ § 1264. Revocation of certificates ; annulment of registrations. 1. Whenever any practitioner of medicine shall be convicted of a felony, as defined in section twelve hundred and fifty-one of this article, the registration of the person so convicted may be annulled and his license revoked by the department. * * *

“ § 1251. Qualifications # * * The conviction of felony shall be the conviction of any offense which if committed within the state of New York would constitute a felony under the laws thereof. * * * ” (Emphasis supplied).

On December 5, 1944, petitioner, who was admitted to practice in 1920, pleaded guilty in the United States District Court, Southern District of New York, to two counts of an indictment charging him with two violations of Internal Revenue Code, section 2554, in that on two occasions (one count for each occasion) he unlawfully, wilfully and knowingly did sell to John Port a quantity of a certain narcotic drug, to wit, approximately twenty one-quarter grain tablets, each tablet containing a quantity of morphine sulphate, a derivative and preparation of opium, * * * not in pursuance of a written order of the said John Port to the said defendant on a form issued in blank for that purpose by or under the authority of the Secretary of the Treasury, * * * ”. The certificate of conviction was entitled Sec. 2554 IR Code Unlawful sales of morphine sulphate,” and merely stated that defendant was sentenced to imprisonment for one year and one day, which sentence was suspended, that defendant was fined $500 and that the other counts were dismissed.

What petitioner actually did was not to sell the morphine (in the ordinary sense of the word “ sell ”) but to prescribe it for an addict, not in the course of his practice, and the prescription was filled by a druggist who acted in good faith without knowledge of the unlawful issuance of the prescription. After the Federal conviction, petitioner received a letter from the Assistant Commissioner of Education advising him that his license was subject to revocation by reason of a conviction of a felony, and giving him the opportunity to have a hearing. Petitioner then moved in the Federal court for an amendment of the certificate of conviction so as to show the true facts upon which the conviction was based. His motion was granted by the District Court Judge who wrote: “ I feel in the interest of justice that the application should be granted. The true fact is that what we actually call a sale was not made. It is a sale by reason of a legal conclusion. Ip other words, the defendant took a part in an act which was part of a whole transaction which eventually resulted in a sale.” The certificate was amended so as to read: “ (The sales charged in the Indictment in counts 1 & 2 consisted of the following as a matter of fact: that on two different occasions defendant, a licensed physician, did, for a consideration, issue an order óf prescription for morphine sulphate not in the regular course of his practice but to an addict for a prohibited use, although the prescription was filled by a druggist who acted in good faith without knowledge that the prescription was unlawfully used.) ” The title of the amended certificate remained “ Unlawful sales of morphine sulphate ” and the sentence was unchanged.

It is petitioner’s contention that his acts in prescribing the drug were not offenses “ which if committed within the state of New York would constitute a felony under the laws thereof.” (Education Law, § 1251, supra.) The issue is of course not whether petitioner shall escape disciplinary action but whether his license may be automatically revoked without a hearing before the Medical Grievance Committee.

It seems clear to us that, while we may feel that petitioner’s acts here were as morally reprehensible as if he had actually sold the drug (in the ordinary meaning of “ sold ”), he could not have been convicted of a felony under the laws of this State. The Attorney-General, indeed, concedes that, while it is agreed that a sale to. an addict is a felony, ‘ ‘ mere illegal prescribing without more is only a misdemeanor under State law ”, and states the question presented to us as follows: “ The present case is the issuance of a narcotic prescription to an addict, with the intent and the result that there is a' sale to the addict, although the doctor does not himself fill the prescription but it is filled by a druggist acting innocently and not in collusion with the doctor. Is that a felony? In other words, would the acts described constitute a ‘ sale ’ under the State law? ”

A brief summary of the history of the statutes involved is as follows. In 1927 a new article was added to the Public Health Law by Laws of 1927, chapter 672. Section 423 of that article provided as follows:

“ § 423. Acts prohibited. It shall be unlawful for any person to possess, have under his control, sell,,distribute, administer, dispense, or prescribe any habit forming drug except as provided in this article.” (Emphasis supplied.)

Under section 421, three of the prohibited acts were defined as follows:

“8. ‘ Sale ’ includes barter, exchange or giving away, or offering therefor and each such transaction made by any person whether as principal, proprietor, agent, servant or employee.

“9. Dispense ’ includes distribute, leave with, give away, dispose of, and deliver to a person or to his agent to be delivered to him.

“10. ‘ Administer means only administration by a person authorized to administer habit forming drugs.”

The word “ prescribe ” was not defined.

All violations of the article were misdemeanors under section 443.

Then in 1929, by Laws of 1929, chapter 377, section 443 was amended so as to read:

“ § 443. Penalties. A violation of any provision of this article shall be punishable as provided in the penal law.” A new section (§ 1751) was added to the Penal Law by Laws of 1929, chapter 377, section 2, which made' certain of the prohibited acts felonies instead of misdemeanors. It provided: “ § 1751. Violations of public health law with respect to habit forming drugs. Any person who shall peddle, sell, barter, or exchange any habit forming drug, in violation of article twenty-two of the public health law, shall be guilty of a felony, punishable by imprisonment for a term not exceeding ten years.

“ Any person who shall violate any provision of such article, other than as above specified, shall be guilty of a misdemeanor, punishable * * *.” (Emphasis supplied.) It is clear that “ prescribe ” was not made a felony by that section, but remained a misdemeanor.

In 1933 the Uniform Narcotic Drug Act was adopted (L. 1933, ch. 684) and the 1927 article repealed. However, the sections relevant here remained in substance unchanged. Former, section 423 prohibiting certain acts became the present section 422 of the Public Health Law and provided:

“ § 422. Acts prohibited. It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this article.” (Emphasis supplied.)

The definitions (present § 421) remained in substance the same except that the definition of administer ” was omitted. A sale is defined as follows: “ 10. 1 Sale ’ includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.” As before, the word “ prescribe ” was not defined.

As to the Penal Law the present sections remain substantially the same, former section 1751 being divided into two sections, 1751 and 1751-a. (L. 1938, ch. 168, §§ 1, 2.)

Although the Attorney-General concedes that “ to prescribe ” taken alone is merely a misdemeanor, the substance of his argumentas that while petitioner would have been guilty of a misdemeanor if no sale had followed, still, since a sale toas made (although by an innocent person), the act of prescribing became a felony because the petitioner thus participated in a sale. The argument might be a cogent one under a statute such as the United States Internal Revenue Code, section 2554 (U. S. Code, tit. 26, § 2554), where there is no differentiation between “ sell ” and prescribe ”. That statute reads as follows: “ § 2554. Order forms — (a) General requirement. It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs mentioned in section 2550 (a) except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary.” (See Jin Fuey Moy v. United States, 254 U. S. 189, 192, and Linder v. United States, 268 U. S. 5, 20, 22, in which the Jin Fuey Moy case was limited to its facts.)

Our State statute follows a definite plan. Public Health Law section 422, quoted (supra), lists the eight prohibited acts. Unless authorized in the article [art. 22], they are unlawful. Provisions therein authorize the doing of each of the acts under certain circumstances. Thus, taking the prohibited acts in order, the following sections give authority: to manufacture, section 423; to possess, section 432; to sell, by manufacturers and wholesalers, sections 423 and 424; to sell by apothecaries, section 426; to prescribe, by physician, dentist or veterinarian, section 427; to administer, by physician, dentist, veterinarian, nurse or interne, section 427; to dispense, by physician, dentist or veterinarian, section 427; to compound, sections 423 and 424. The unlawful issuance of a prescription by a physician is to “ prescribe ”, as indicated in sections 422 and 427. It is not to “ sell ”, as prohibited in section 422 and defined in section 421, subdi,vision 10. To hold otherwise would be to remove the word prescribe ” from section 422, despite the fact that the Legislature has written it in alongside the word sell.” It is one of the accepted canons of construction that statutes must be read so that each word will have a meaning, and not so read that one word will cancel out and render meaningless another; that each word used in an enumeration in a statute of several classes or things must be presumed to have been used to express a distinct and different idea; that every provision of a statute was intended to serve some useful purpose. (Palmer v. Van Santvoord, 153 N. Y. 612, 616, 617; Allen v. Stevens, 161 N. Y. 122, 145.)

People v. Gennaro (261 App. Div. 533, affd. 287 N. Y. 657) involved a true sale of heroin and not a transaction whereby a duly licensed physician illegally prescribed for an addict. It is not applicable here.

The order of the Appellate Division should be reversed, with costs, the determination of the Board of Regents annulled, and the matter remitted to the Board of Regents for further proceedings not inconsistent with this opinion.

Loughran, Oh. J., Lewis, Desmond, Thacheb, Dye and Medame, JJ., concur.

Ordered accordingly.


text:
    Josephine M. Burr, Respondent, v. Commercial Travelers Mutual Accident Association of America, Appellant.
    Argued February 26, 1946;
    decided April 18, 1946.

      Moses'G. Hubbard, Jr., for appellant.
    I. Death caused "olely or partially by o'verexertion is not a loss “ which is the direct and proximate result of and which is caused solely and exclusively by external violent and accidental means.” Defendant’s motion for a nonsuit and directed verdict should therefore have been granted. (Wilcox v. Mutual Life Ins. Co., 265 N. Y. 665; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; Allendorf v. Fidelity & Casualty Co., 250 N. Y. 529; Appel v. Aetna Life Ins. Co., 86 App. Div. 83, 180 N. Y. 514; Fane v. Nat. Assn. of Railway Postal Clerks, 197 App. Div. 145; Niskern v. United Brotherhood, 93 App. Div. 364; Shanberg v. Fidelity & Casualty Co., 158 F. 1; Hastings v. Travelers’ Ins. Co., 190 F. 258; Johnson v. Travelers Insurance Co., 269 N. Y. 401; Landress v. Phoenix Ins. Co., 291 U. S. 491; Gould v. Travelers Ins. Co., 244 App. Div. 274, 270 N. Y. 584.) II. The undisputed and unimpeached autopsy findings were conclusive in establishing advanced heart disease as the cause of death. Motions for nonsuit and a dismissal should have been granted. (Weber v. Third Ave. R. R. Co., 12 App. Div. 512; Ocean Accident & Guarantee Corporation v. Moore, 85 F. 2d 369; Naseef v. Metropolitan Life Ins. Co., 230 App. Div. 610; Buchanan v. Belsey, 65 App. Div. 58; Ensign v. Travelers Ins. Co., 193 App. Div. 369, 233 N. Y. 521; Lalor v. City of New York, 208 N. Y. 431; Trudnowski v. New York Central Railroad Co., 220 App. Div. 503.) III. Where pre-existing disease causes or contributes in causing death there can be no recovery. (Smith v. Massachusetts Bonding & Ins. Co., 207 App. Div. 682, 241 N. Y. 558; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; Blum v. Fresh Grown Preserves Corp., 292 N. Y. 241.) IV. Errors committed by the trial court in his charge to the jury and in passing upon the evidence require reversal. (Strohm v. The N. Y., L. E. & W. R. R. Go., 96 N. Y. 305; Tozer v. N. Y. G. R. R. Co., 105 N. Y. 617; Matter of McLaughlin v. Gurtis-Quillen Co., 223 App. Div. 208; Carolan v. Hoe & Co., 214 App. Div. 356.)

      G. G. Tennant and Robert G. Tennant for Metropolitan Life Insurance Company, amicus curiae, in support of appellant’s position.
    I. Plaintiff failed to establish that insured’s death was caused solely and exclusively by external, violent and accidental means. Death was caused primarily by pre-existing heart disease. (Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; McMartin v. Fidelity & Casualty Co., 264 N. Y. 220; Smith v. Massachusetts Bonding & Ins. Co., 207 App. Div. 682, 241 N. Y. 558; Reynell v. Indemnity Ins. Co., 258 N. Y. 572; Ohringer v. Mutual Life Ins. Co., 239 App. Div. 897, 264 N. Y. 633; Allendorf v. Fidelity & Casualty Co., 223 App. 809, 250 N. Y. 529; Wilcox v. Mutual Life Ins. Co., 265 N. Y. 665; Appel v. Aetna Life Ins. Co., 86 App. Div. 83.) II. There was error in the admission of evidence and in submitting the case to the jury. (Lewis v. Ocean Acc. & G. Corp., 224 N. Y. 18.)

      Joseph P. Leary and O. L. Van Horne for respondent.
    I. The evidence presented issues of fact for the jury and the verdict for the plaintiff is supported by the evidence. (Wiesner v. City of Albany, 224 App. Div. 239, 250 N. Y. 551; Matter of Altschuller v. Bressler, 289 N. Y. 463; Robison v. Lockridge, 230 App. Div. 389; Wolfson v. Metropolitan Life Ins. Co., 289 N. Y. 70; Gittelson v. Mutual Life Ins. Co. of N. Y., 266 App. Div. 141; Wellisch v. John Hancock Mut. Life Ins. Co., 293 N. Y. 178; McGrail v. Equitable Life Assurance Society, 292 N. Y. 419; Hannon v. Commercial Travelers Mut. Acc. Assn., 268 App. Div. 542.) II. Death was caused solely and exclusively by external, violent and accidental means. (Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83; Berkowitz v. New York Life Insurance Co., 256 App. Div. 324; Meyer v. New York Life Insurance Co., 249 App. Div. 243; Mansbacher v. Prudential Ins. Co., 273 N. Y. 140; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; Simson v. Commercial Travelers Mut. Acc. Assn., 263 App. Div. 297, 289 N. Y. 700; Matter of McCormack v. Wood Harmon Warranty Corp., 288 N. Y. 614; Matter of Daley v. Bd. of Estimate, of City of N. Y., 267 App. Div. 592; Cambareri v. Metropolitan Life Ins. Co., 185 Misc. 273; Mulvihill v. Commercial Casualty Ins. Co., 221 App. Div. 494, 248 N. Y. 524.) III. No errors were committed by the trial court in the charge. (Simson v. Commercial Travelers Mut. Acc. Assn., 263 App. Div. 297, 289 N. Y. 700.)
   Conway, J.

This is an action upon a policy which insured the decedent, Raymond L. Burr, “ against loss by accidental means, of life, limb, sight and time ”. It insured against losses which were the direct and proximate result of, and which were caused solely and exclusively by, external, violent and accidental means. The decedent became a member of the association on September 9, 1931, and the insurance contract continued until his death on March 6, 1943. On that day, and for some five years prior thereto, the decedent was employed in the United States Bureau of Internal Revenue at Syracuse, N. Y. His duties required him to cover Otsego County. This he did by automobile. His health appeared to be excellent. At the time of his death he had six weeks sick leave due him which he had never taken. In 1942 he had been placed under civil service following a medical examination, and in 1940 he had been examined for life insurance by one of the large New York State companies and had obtained a policy of insurance after a medical examination by a doctor other than the one who had examined him in 1942. He had had one day’s illness on the 23d or 24th of February prior to his death. He had never complained of any other sickness or illness.

At about eight o’clock on the morning of March 6th the deceased drove to Oneonta, a distance of fifteen miles, to the revenue office there, so as to arrange for someone to take his place while he went north to Malone for a day or two. He then drove back to Cooperstown, where he lived, and then left with his wife and thirteen-year-old son for Utica so as to take a train for Malone. It was then about 11:30 in the morning. When he left Cooperstown it was snowing lightly. By the time he reached South Columbia, the weather was very bad. By that time travel was possible only upon one half of the roadway. As Mrs. Burr described it: “It was just a one-way drive; the roadway over to Mohawk. We met the snowplow in South Columbia and it wasn’t able to go back and open the road. It was just one-way traffic.” It was then snowing heavily, it was bitter cold, visibility was poor, and the velocity of the wind was very high. The snow was piled on both sides of the road. After leaving South Columbia on the half of the road which was open, the Burrs met another car coming in the opposite direction at the top of a knoll. It could not be seen until it was upon them, and the deceased drew out a little to let it go by. The other automobile struck his rear left fender and threw his car into the ditch. The other driver went on, and the deceased attempted to rock his automobile back and forth to see if he could get it out either backwards or forwards. That was impossible. He sat there and waited for someone to drive by who might help him. One car went by without stopping. The deceased finally decided that he would have to go on to some farmhouse to get a. shovel. He was gone for some time and then he came back carrying the shovel and walking into the wind, which was so strong that he seemed to be staggering against it. When he entered the car he said that the wind had knocked him out. He sat in the car for fifteen or twenty minutes, again waiting to see if some car would come along so that help might be obtained. By that time the snow was seeping in the windows of the car and in the door. Mrs. Burr testified: “ There was almost as much in the car as there was outside,” When no one came, the deceased determined that it was necessary for him to get out and attempt to shovel the snow away despite the velocity of the wind. Mrs. Burr put her son’s wool scarf over his ears and then pulled his hat down, and he went out and began to use the shovel. The boy got out, too, and finally she opened the door of the car and saw the deceased hit himself or slip and fall against the shovel and then against the rear wheel or rear fender of the car. Mrs. Burr jumped out and the deceased came around to the left side of the car and she helped him in. He sat down, breathed heavily for a moment, and was dead.

The court divided his charge into two parts. The first dealt with accidental means, the second with the provision of the policy requiring that death must be the direct and proximate result of, and be caused solely and exclusively by, external, violent and accidental means. In so dividing his charge the court was quite correct, for the question of whether there was here an accident within the terms of the policy was the primary question to be decided.

The court charged as follows: “ Accidental means are those which produce effects which are not their natural and probable consequences. Consequently, if you find from the evidence that Mr. Burr met his death as the result of some unexpected and unforeseen consequences of his efforts to extricate his car from the snow bank on the day in question, you may find that it was the result of external, violent and accidental means. To be more explicit, if you find that Mr. Burr died as a result of overexposure or overexertion, or by slipping and falling against the shovel and against the car or by a combination "of all three and if you further find that he could not have been reasonably expected to anticipate such results from his actions on the day in question, then you may find that the essential accidental means exist.”

Defendant’s counsel excepted to that portion of the charge.

Legal scholars have spent much effort in attempts to evolve a sound theory of causation and to explain the nature of an “ accident ”. Philosophers and lexicographers have attempted definition with results which have been productive of immediate criticism. No doubt the average man would find himself at a loss if asked to formulate a written definition of the word. Certainly he would say that the term applied only to an unusual and extraordinary happening; that it must be the result of chance; that the cause must be unanticipated or, if known, the result must be unexpected. We have indicated the “ means ” which a jury could have found caused the bodily injuries resulting in the death of plaintiff’s husband, and have pointed out the incidents occurring on that morning which in our opinion would cause the average man to include such means in the term accidental ” as used in the policy. Here it was not only the result of such incidents which was unexpected, but a jury could find that the catastrophe was brought about by the intervention of unintended and unexpected means, such as the automobile collision, the blizzard and wind storm, a slip or a twist of the body, resulting in a fall and trauma, placing a strain upon the body which the body could not withstand.

Our guide must be the reasonable expectation and purpose of the ordinary business man when making an insurance contract such as we have here.

“ It is his intention, expressed or fairly to be inferred, that counts. There are times when the law permits us to go far back in tracing events to causes. The inquiry for us is how far the parties to this contract intended us to go. The causes within their contemplation are the only causes that concern us.” (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 51.)

In Leyland Shipping Co. v. Norwich Union Fire Ins. Society (118 L. T. 120, 125; [1918] App. Cas. 350) cited with approval in the Bird case, it was pointed out that “ causation is not a chain, but a net. At each point, influences, forces, events, precedent and simultaneous, meet, and the radiation from each point extends infinitely.” Returning to Bird v. St. Paul F. & M. Ins. Co. (supra), we quote further: “ The same cause producing the same-effect may be proximate or remote as the contract of the parties seems to place it in light or shadow’. That cause is to be held predominant which they would think of as predominant. A common-sense appraisement of everyday forms of speech and modes of thought must tell us when to stop. It is an act of ‘ judgment as upon a matter of fact ’ (Leyland Shipping Co. v. Norwich Fire Ins. Society, supra).See. also, Lewis v. Ocean Acc. & G. Corp. (224 N. Y. 18, 20, 21); Silverstein v. Metropolitan Life Ins. Co. (254 N. Y. 81, 86); Schwartz v. Commercial Travelers Mutual Association (132 Misc. 200, affd. 227 App. Div. 711, affd. 254 N. Y. 523); Meyer v. New York Life Insurance Co. (249 App. Div. 243).

In this State there is no longer any distinction made between accidental death and death by accidental means, nor between accidental means and accidental results. As was said by Chief Judge Crane in Mansbacher v. Prudential Ins. Co. (273 N. Y. 140,143,144): “ Accidental death means death by accident, and excludes suicide; death occurring through ‘ accidental means ’ in this ease and under these circumstances is the same as death occurring ‘ by means of an accident ’.” We cited with approval, Richards on the Law of Insurance (3d ed., § 385) to the effect that accidental means are those which produce effects which are not their natural and probable consequences. There we held that, when the clause of coverage was headed accidental death benefit ” and it was provided that Such benefit would be paid if death occurred “ as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means ”, one who died from taking an overdose of veronal was within the policy terms. The trier of the fact had found that self-destruction was not intended by the deceased. We pointed out that insurance policies upon which the public relies for security in case of accident should be plaintly written in understandable English “ free from fine distinctions which few can understand until pointed out by lawyers and judges.” A distinction between “ accidental means ” and accidental results ” is certainly not understood by the average man and he is the one for whom the policy is written. We had already decided in Gallagher v. Fidelity & Casualty Co. (163 App. Div. 556, affd. 221 N. Y. 664), that sunstroke was a peril insured against under a similar type of policy. It had been urged in that case that since the deceased had voluntarily submitted himself to the heat of the sun, he did not sustain his injury by “ accidental means.” We declined to adopt that interpretation. The Supreme Court in Landress v. Phoenix Ins. Co. (291 U. S. 491), reached a contrary conclusion, holding that sunstroke was an u accidental result ” which was not within the terms of a policy insuring against “ accidental means.” In the Mansbacher case the Landress case was cited in the appellant’s brief, but we followed our decision in the Gallagher case. Still later, in Adlerblum v. Metropolitan Life Ins. Co. (284 N. Y. 695) the deceased, following the discovery that he had pus in his tonsils, visited a specialist to have them removed. Novocaine was administered to him as a local anesthetic. Paralysis and death followed almost immediately, due to his hypersensitivity to novocaine. This was clearly a case of accidental result ” rather than one of ‘ accidental means ’ ’, yet we held it to be within the latter term. The Adlerblum case was followed by Simson v. Commercial Travelers Mutual Accident Assn. (263 App. Div. 297, affd. 289 N. Y. 700), where the insured suffered a hernia.as a result of opening a drawer in his desk by the unusual exertion of considerable force after it had become jammed.

As to the second point the court charged as follows: Such a finding on your part is not alone sufficient to justify a verdict for the plaintiff, however. You must go further than that and decide whether or not such death was the direct and proximate result of and caused solely and exclusively by such accidental means. Under the provisions of the policy, it must have been the accidental means and the accidental means alone which caused the death if the plaintiff is to recover. If the death was the result of a heart condition, even though that heart condition may have been aggravated by the accident, there can be no recovery. If at the time of the accident there was a pre-existing disease as the defendant claims which, cooperating with the accident, resulted in the death of Mr. Burr, the accident cannot he considered as the sole and exclusive cause of death and the defendant is not liable.

*******

“ Who is right and who is wrong is for you to determine from the evidence, submitted to you. I should tell you, however, that, if there was a pre-existing heart condition and if it had developed to such an extent that it was the cause or a contributing cause of death, then there can be.no recovery. If, on the other hand, this heart condition was so insignificant that it would not be characterized in the common speech of man as a serious .departure from normal health, then even though its existence resulted in a frailty of the heart, a predisposition to an occlusion or other mischief which resulted fatally when there was superimposed upon it a heart spasm induced by some violent means, then there still may be a recovery.”

Since the jury found a verdict in favor of the plaintiff and the Appellate Division has affirmed, all the facts and inferences therefrom necessary to sustain the verdict have.been found.in plaintiff’s favor. It was made clear to the jury by that charge that if the death was the result of a pre-existing disease, even though that may have been aggravated by the accident, there could be no recovery, because then the accident could not be considered as the sole and exclusive cause of death. It would appear, when the two portions of the charge are read together, that the jury must have found that there was no pre-existing disease and that the deceased died 61 as a result of overexposure or overexertion, or by slipping and falling against the shovel and against the car or by a combination'of all three ” without the existence of any pre-existing disease. It is not possible on this record for us to say that, as a matter of law, it was necessary for the jury to adopt the testimony as to the condition of the deceased upon autopsy following exhumation as against opinion evidence that those findings did not portray and could not correctly have portrayed the actual condition of the coronary arteries of the deceased when he was alive on the 6th day of March, 1943. There is testimony that the autopsy, performed two and one-half months after death, disclosed conditions then existing in the body of the deceased with reference to his heart and arteries. Upon those facts some opinion testimony was presented on behalf of defendant. On the other side, there were facts as to physical examinations of deceased during his life covering a period-of nearly two and one-half years immediately prior to his death, together with testimony as to. the nature and extent of the work done by him for a considerable period. Upon those facts opinion testimony on behalf of plaintiff was given. There was presented a question of fact which the jury resolved in favor of the plaintiff. That finding having been affirmed, we cannot say as a matter of law that there was no evidence to support it.

It is true that the trial court in the portion of its charge quoted {supra, p. 301) used the word over exertion.” In this State we have not permitted recovery under a policy insuring against a loss “ which is the direct and proximate result of and which is caused solely and exclusively by external, violent and accidental means ” when the act was the natural and customary act of á householder in or about his house, or of-a workman within the scope of his duties in his calling. (Allendorf v. Fidelity & Casualty Co., 250 N. Y. 529; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81, 85; Wilcox v. Mutual Life Ins. Co., 265 N. Y. 665; see, also, Fane v. National Assn. of Railway Postal Clerks, 197 App. Div. 145; Niskern v. United Brotherhood, 93 App. Div. 364; Appel v. Aetna Life Insurance Co., 86 App. Div. 83, affd. 180 N. Y. 514.)

It seems quite clear here, hoAvever, that on the facts presented, a chain of causation was set in motion beginning with the auto-, mobile accident in the course of and brought about by travel in a very heavy snow and wind storm, followed in turn by what may be termed an emergency resulting from the fact that the deceased had his wife and thirteen-year-old son with him at a time Avhen the cold was bitter and the automobile was being filled with sifting snow, and it was necessary for the deceased to act to protect his family. The court referred in conclusory terms and in the disjunctive to possible causes of death after correctly stating the applicable law as quoted {supra, p. 301), but neither the court nor the jury on this record could have understood the word “ overexertion ” in the sense in which it might have been used in the Allendorf and Wilcox cases. This case is no more comparable to the conventional overexertian case than if the deceased had, by an accident, been thrown into a pit and in endeavoring to clamber out in order to save his life had died by reason of overexertion in climbing, or had been thrown by an accident into the water and had died from overexertion in attempting to swim ashore.

The judgment should be affirmed, with costs.

Loughran, Ch. J., Lewis, Desmond, Thacher and Dye, JJ., concur; Medalie, J., deceased.

Judgment affirmed.


text:
    John P. Sweezey, Appellant, v. Arc Electrical Construction Co., Inc., Respondent.
    Argued January 22, 1946;
    decided April 18, 1946.

      Paul Koch, Morris Zweibel and Robert X. Kuzmier for appellant.
    I. The second affirmative defense contained in the answer is insufficient, in law. (Clark v. Monarch Engineering Co., 248 N. Y. 107; Matter of Passarelli v. Columbia E. & C. Co., 270 N. Y. 68; Matter of Curtin v. City of New York, 287 N. Y. 338; Taylor v. New York Central R. R. Co., 294 N. Y. 397; McCue v. Shea Co., 175 Misc. 557, 260 App. Div. 946; O’Brien v. Lodi, 246 N. Y. 46; Hession v. Sari Corporation, 283 N. Y. 262; Matter of Parchefsky v. Kroll Bros., Inc., 267 N. Y. 410.) II. The second affirmative defense contained in the answer does not state sufficient facts to constitute a valid defense. (Clark v. Monarch Engineering Co., 248 N. Y. 107; Ramsey v. New York Central R. R. Co., 269 N. Y. 219; Bartolomeo v. Bennett Contracting Co., 245 N. Y. 66; Wawrzonek v. Central Hudson G. & E. Corp., 276 N. Y. 412.)

      Patrick E. Gibbons and E. C. Sherwood for respondent.
    I. The second affirmative defense is sufficient in law. (Ives v. South Buffalo Ry. Co., 201 N. Y. 271; Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514; White v. New York Central R. R. Co., 243 U. S. 188; Matter of Anttonen v. Laakso Builders, Inc., 236 App. Div. 771, 261 N. Y. 545; Casey v. Shane, 221 App. Div. 660; DeLee v. Pardy Construction Co., 222 App. Div. 374; Barrencotto v. Cocker Saw Co., 266 N. Y. 139; Matter of Cassaretakis, 289 N. Y. 119; Shanahan v. Monarch Engineering Co., 219 N. Y. 469; Cudahy Co. v. Parramore, 263 U. S. 418; State v. Bennett Realty Co., 154 Md. 159; Clark v. Leahy, 300 Mass. 565; Matter of Doey v. Howland Co., 224 N. Y. 30; Matter of Post v. Burger and Gohlke, 216 N. Y. 544.)
   Conway, J.

This is an appeal by permission of the Appellate Division from an order of that court affirming an order of the Special Term denying plaintiff’s motion to strike out the second, separate and complete defense ” contained in defendant’s amended answer. The Appellate Division certified the following question: “ Is the second affirmative defense sufficient in law? ” „

It appears from the complaint that defendant was engaged as a general contractor in connection with certain electrical work, including work in tunnels, manholes and service connections, being performed at the new State hospital near Deer Park, New York in December, 1941. The plaintiff, employed as a carpenter by Capasso Construction Co., Inc., a subcontractor of defendant, was injured in the course of his employment through the alleged negligence of the general contractor on December 8, 1941, by the collapse of an excavation in which he was working, the shoring of which was allegedly within the scope of the general contractor’s duties. The pleadings put in issue the scope of each contractor’s duties, and the negligence of the defendant. The “ second, separate and complete defense ” contained in defendant’s amended answer asserts that under section 56 of the Workmen’s Compensation Law the plaintiff is given a statutory remedy against the general contractor which is exclusive of any common-law action for negligence. Section 56, so far as material, read at that time as follows: “ § 56. Subcontractors. A contractor, the subject of whose contract is, involves or includes a hazardous employment, who subcontracts all or any part of such contract shall be liable for and shall pay compensation to any employee injured whose injury arises out of and in the course of such hazardous employment, unless the subcontractor primarily liable therefor has secured compensation for injuries to all employees employed to perform work under the subcontract as provided in this chapter.

“ Any-contractor, or his insurance carrier, who shall become liable for the payment of compensation to any employee or the dependents of a deceased employee of his subcontractor, pursuant to provisions of this section, may recover the amount of such compensation paid or for which liability is incurred from the subcontractor primarily liable for such compensation to the injured employee or his dependents. The claim for such recovery shall constitute a lien against any moneys due or to become due to the subcontractor from such general contractor. Such claim for recovery, however, shall not affect the right of the injured employee, or the dependents of a deceased employee, from recovering compensation due from the general contractor or his insurance carrier.” „

Defendant contends that since the general contractor here is obligated to pay compensation to the injured employee of the subcontractor, the latter having failed to secure compensation insurance, the general contractor must be deemed to be an employer of the subcontractor’s employees; that liability for payment of compensation could not constitutionally be imposed upon one n'ot an employer, in the light of article I, section 18, of the State Constitution; and that the constitutionality of the Workmen’s Compensation Law as a whole depends upon the substitution of one exclusive remedy against the employer for the old common-law negligence action. It is urged that Workmen’s Compensation Law, section 56, must be read in pari materia with sections 10 and 11:

“ § 10. Liability for compensation. Every employer subject to this chapter shall in accordance with this chapter * * * secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault as a cause of the injury * * #.

§ 11. Alternative remedy. The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee

# # * 99

Section 56 was enacted in 1922. It was amended in 1929 (L. 1929, ch. 302), in 1939 (L. 1939, ch. 541), and in 1942 (L. 1942, ch. 617). The first paragraph has remained substantially the same, so far as the issue here is concerned.

It is clear that “ employers ” and employees ” affected by the enactment of the Workmen’s Compensation Law came within the common-law definition of the employer-employee relationship. Employees of a subcontractor have been held not to be employees of another subcontractor to whom a part of the subcontract was let: The word employee ’ denotes contractual relationship. Consequently it cannot be held that the employees of Baker & Yettman are also employees of Eklund and, therefore, entitled to compensation under a policy covering only the employees of Eklund. The liability of the contractor to employees of his subcontractor is a secondary one imposed upon him by law. That this does not cause the relationship of employer-employee to spring up has been recognized by this court in Clark v. Monarch Engineering Co. (248 N. Y. 107) * * * ” (Matter of Passarelli v. Columbia E. & C. Co., 270 N. Y. 68, 75 [1936]). Judge Lehmae' in Clark v. Monarch Engineering Co. (supra), in discussing sections 10 and 11 of the Workmen’s Compensation Law, said at p. 109: “ There can be no doubt that when these sections were enacted 1 an employer subject to this chapter ’ included only a general or special employer ’ as that term is generally understood and defined in our law. A contractual relation with the employee is involved. Here the workman who sustained injury resulting in his death was employed by a subcontractor. It is not claimed that the general contractor either hired or had the right to direct him. Concededly section 10 of the Workmen’s Compensation Law imposed no obligation or liability upon a general contractor in favor of the employees of a subcontractor.”

Since the general contractor has always been deemed to be a third party with respect to the subcontractor’s employee, it follows that the latter can bring an action for negligence against the general contractor under Workmen’s Compensation Law, section 29,- subdivision 1. As in an action against any other stranger, the injured employee must show freedom from contributory negligence on his own part, and actionable negligence on the part of the contractor.

It is difficult to find in section 56 any expression of legislative intent to destroy this common-law negligence action. The same ■ argument was advanced in Clark v. Monarch Engineering Co. (supra) but the point was not decided. Since there was no showing there that the subcontractor had not secured compensation, the statutory liability of the general contractor was not shown to exist. The general contractor’s liability as a negligent third party, therefore, was held to remain. In Casey v. Shane (248 N. Y. 625), an order of the Special Term granting plaintiff’s motion to strike out the same defense in an action of this kind was affirmed on the authority of the Clark case, since it was shown that the subcontractor had secured compensation. In view of the established concept of a general contractor as a third party so far as his subcontractor’s employee is concerned, and in view of the fact that the relevant portion of section 56 has remained virtually unchanged since 1922, although other provisions of the section have been amended, we do not feel that an intent to make the statutory liability imposed by section 56 exclusive can be read into that section.

The defendant argues that plaintiff’s interpretation is inconsistent, in that general contractors would be -regarded as strangers to their subcontractors’ employees in defending the negligence action, and as “ constructive employers ” of these workmen in a compensation proceeding. The inconsistency arises, however, only because of the defendant’s conception of the basis of the liability imposed by section 56. The contractor is conditionally liable, as a guarantor is conditionally liable. He is not bound to secure compensation as an employer (Workmen’s Compensation Law, §§ 10, 11, 50). He is liable to pay compensation if the subcontractor does not secure it. Nor need this liability be based on a fictional relationship between him and the.injured workman. It may be said more reasonably, in the light of the spirit of the act, to be based upon the contractor’s relationship to the subcontractor. He is in a better position than the workman to select a responsible subcontractor, and to see to it that the ■ subcontractor secures compensation. He need not select a subcontractor who will refuse .to obey the law requiring him to obtain workmen’s compensation insurance. His contract with the subcontractor may be drawn to cover this requirement. Any recovery of compensation from him by the subcontractor’s employee constitutes a lien against moneys due the subcontractor from him. Section 56 is merely a device to secure enforcement of the act with relation to the real employer. — the subcontractor.

The constitutionality of the section has been sustained in Matter of Anttonen v. Laakso Builders, Inc. (261 N. Y. 545), as being within the State’s police power over the health and safety of employees. The argument on the question of constitutionality here is that, as a constitutional prerequisite to liability under section 56,- the relationship of employer and employee must exist and such liability be deemed exclusive. That is accurate, we think, but not applicable here. The plaintiff compares the general contractor’s liability with the situation of a third party who holds property belonging to a judgment debtor which is attached by a judgment creditor. The attachment is .not based upon any relationship between the creditor and the third party, but upon the relationship between the third party and the debtor.

The orders should be reversed and' the motion granted, with costs in all courts. The question certified should be answered in the negative.

Loughban, Oh. J., Lewis, Desmond, Thacheb and Dye, JJ., concur; Medalie, J., deceased.

Orders reversed, etc.


text:
    The People of the State of New York ex rel. Ruth Patterson, Appellant, against Board of Education of the City of Syracuse et al., Respondents.
    Argued March 4, 1946;

    decided April 18, 1946.

      Ruth Patterson, appellant in person.
    I. Petitioner has been arbitrarily, involuntarily, and unlawfully removed from her teaching employment and deprived of a substantial part of her rightful income since the expiration of a year’s leave of absence on May 9,1943. (Education Law, § 872, subds. 3, 3-c.) II. Rule 83 of the Rules of the Board of Education of the City of Syracuse requires the passing of one physical examination only, before reappointment, and no given time is specified. III. The requirement of a discriminatory physical examination provides an unlawful method of dismissal. (Education Law, § 872.) IV. An unlawful method of dismissal is a grave injustice to a teacher and a detriment to the schools.

      Lyle W. Hornhech, Corporation Counsel (George T. Driscoll of counsel), for respondents.
    I. The Board of Education should not be compelled to reinstate or reappoint petitioner under a contract she has abandoned. (Steinson v. Bd. of Educa

      tion of N. Y., 165 N. Y. 431; Cooke v. Dodge, 164 Misc. 78; Miller v. Warner, 42 App. Div. 208; Matter of Stevens, N. Y. St. Dept. Rep. 207.) II. Petitioner has not complied with the rules of the Board of Education in order to justify reappointment as a teacher. III. Under rule 83 any physical examination as may be prescribed by the health officer, taken after the expiration of the leave of absence, must be successfully passed' before petitioner can be reinstated. IV. This proceeding was prematurely begun, and should be dismissed. (Matter of Healy, 34 N. Y. St. Dept. Rep. 449; Cooke v. Dodge, 164 Misc. 78.)
   Conway, J.

Petitioner was appointed a teacher in the public schools of the city of Syracuse in 1925 after beginning her teaching service in 1918 in the town of Cambridge, New York. In 1929 she received her permanent appointment as teacher from the Board of Education of the City of Syracuse. On March 31, 1942, she was granted a leave of absence, effective May 9, 1942, for one year without pay because of illness. Rule 83 of the Rules of the Syracuse Board of Education thereupon became .applicable to her case. That rule reads as follows: “83 No person shall be appointed a teacher or reappointed after a leave of absence obtained for reasons affecting his health, without first passing such physical examination as may be prescribed by the health officer.”

On May 26, 1942, petitioner presented herself to the school health officer for physical examination, and he made a report which he delivered to her, certifying that she was in good physical condition. Thereupon, on June 1, 1942, she made application to the board for reappointment not later than January, 1943, quoting the report of the health officer. The board acknowledged her letter on June 10th, stating that her application had been placed on file. In September, 1942, petitioner requested her reappointment for the fall term, rather than for the January, 1943 term. To that application the board made no reply. On April 9, 1943, not having been reappointed and her year of leave of absence not having expired, she applied for an extension of it to January, 1944. The Board of Education again made no reply. On May 3, 1943, still within the year of her leave of absence, petitioner wrote again asking that, if the extended leave were not granted, that letter might be considered as an application for reappointment as of May 9, 1943. To her request for reappointment the board made no reply, but wrote to her on May 7, 1943, that her request for extension of leave of absence had been denied. On May 9. 1943, petitioner, who had been compelled to obtain employment in a defense plant, telegraphed'to the board from Rochester, where she was employed, that she was available for immediate service and called attention to the fact that she had received no reply to her previous application for reappointment as of May 9, 1943. To that telegraphic communication the board made no reply. Finally, after telephoning to the president of the board, she received a letter under date of July 30, 1943, signed by the Superintendent of Schools, advising her in his opinion that she no longer had tenure of position in the Syracuse school system. On August 2, 1943, she wrote to the Superintendent of Schools and to the president of the Board of Education, asking that she be notified where and when to report for teaching assignment. To those letters no replies were made. No explanation is made or even offered in the record or brief submitted by respondents for their extraordinary conduct. No reference was ever made by them to the fact that the school health officer had found petitioner in good physical condition as far back as May 26,1942. No request by the Board of Education was ever made that petitioner submit to a physical examination. The rules do not direct that the board order a physical examination, so long as “ such physical examination as may be prescribed by the health officer ” has been taken and passed. Such examination had been made and notification thereof given to the boárd.

In the following month petitioner instituted this proceeding to compel the Board of Education to reinstate her to the position in which, concededly, she had had tenure of office. At Special Term petitioner was ordered to submit to such mental and physical examination as the board might require, with the further direction to the board to reappoint her to the first vacancy for which she was qualified in the event that she passed such examination. Upon appeal, the Appellate Division struck out the provision as to a mental examination, but ordered that petitioner submit to such physical examination as the health officer of the board might prescribe, and that the petitioner’s right to reinstatement and reappointment by the board should be governed by the result of such examination. Both Special Term and the Appellate Division extended petitioner’s leave without pay until such time as she should be reappointed or this proceeding dismissed. Petitioner has appealed by our leave upon the ground that there was a waiver by the board of any physical examination as of May 9, 1943, and that she is entitled to be reinstated and reappointed unconditionally as of that date.

Two arguments are advanced by respondents. The first is that petitioner abandoned her contract by not presenting herself personally on May 9, 1943, to perform any teaching duties to which she might have been assigned. On the argument it was urged that her telegram was unavailing to aid her, because it was sent to Syracuse from Rochester, where she was supporting herself awaiting action by the board on her several requests for relief. There is, of course, no merit on these facts in such a contention. As the learned Appellate Division Justice said in his opinion, speaking of the board: “ It had been furnished with reports of her physical and mental condition, the result of examinations made after the commencement of the leave. One such report was from the very officer specified in rule 83. Knowing then on May 5, 1943, that petitioner wished reinstatement, a fair construction of rule 83, if the Board was to decline to act on her application without further examination, required it to say so to petitioner and not leave her in the dark as to its intention to declare a forfeiture. By its conduct the Board estopped itself to claim on the hearing herein that petitioner had been absent without leave or without its consent.,, (269 App. Div. 39, 43.) Certainly the unanswered letters which petitioner wrote to the board during her leave disclose no evidence of an abandonment of her position, nor can her actual presence before the board on'May 9th be deemed necessary. Her letter of May 3d requested reappointment- as of May 9th, but the board failed to reply to it. Her telegram of May 9th announced her immediate availability, but since the board had not advised her in reply to her letter of May 3d where or when to present herself, it was clearly no breach of contract or abandonment of position that she failed to appear personally.

The second argument advanced by respondents is that petitioner has not complied with the rules of the board requiring the passing of ‘ ‘ such physical examination as may be prescribed by the health officer ” after her leave of absence expired, and that the passing of such examination is a condition precedent to reappointment. There is no requirement in rule 83 as to the time when such physical examination must be taken, and petitioner points to the medical report of the health officer of the board of May 28, 1942. Respondents urge that that examination was not in compliance with rule 83, since it was not made at the request of the board or the health officer. It seems to us that that argument of the board reveals the weakness of its position and confirms the fact that it failed to prescribe any examination. The board never at any time requested petitioner to submit to an examination by its health officer prior to the institution of this proceeding. The phrase “ as may be prescribed by the health officer ” indicates clearly that at least the extent of such examination is discretionary. The board did nothing from the time it granted petitioner’s leave of absence for one year to the date on which it refused to extend that leave. It was advised on May 3d and on May 9th that petitioner requested reappointment on May 9th and was available for service. Having failed to inform her that it required that she pass a physical examination, either before or after her leave expired, the board may not now assert that she was not entitled to be reappointed on May 9, 1943. It may not now, nearly three years after its claim of abandonment, when the health of the petitioner may not be as it was on May 9, 1943, demand a physical examination as a condition of reappointment. The petitioner, after such reappointment, may of course be examined just as any other teacher in service if a charge be made that she is physically unfitted to teach. (See Education Law, § 872, subd. 3;)

The orders should be modified so as to provide for the unconditional reappointment of petitioner to the first vacancy for which she is qualified, the appointment to be effective as of May 9, 1943, with the credited teaching service and compensation which she would have had, had she been reappointed to the first vacancy for which she was qualified on or after May 9, 1943, less any compensation earned by her since that date and the ruatter remitted to the. Special Term for proceedings not inconsistent with this opinion, with costs to the appellant in all courts.

Desmond, Thacheb and Dye, JJ., concur; Loughean, Oh. J., dissents and votes to affirm the order of the Appellate Division; Lewis, J., taking no part; Medalie, J., deceased.

Ordered accordingly.