author: Froessel, J. Desmond, J. (dissenting).

text:
    In the Matter of Harry C. Brenner, District Attorney of the County of Suffolk, Respondent, against Great Cove Realty Co., Inc., et al., Appellants, et al., Respondents.
    Argued March 5, 1959;
    decided July 8, 1959.

      Arthur Karger and Morris Permut for appellants.
    I. Since it did not appear that appellants intruded upon indisputably Indian lands, the County Court had no jurisdiction in this proceeding, under section 8 of the Indian Law, to make the final order directing removal therefrom. As applied in this proceeding, the statute violated appellants’ constitutional right of trial by jury, and divested them of their property rights without due process of law. (People ex rel. Cutler v. Dibble, 16 N. Y. 203, 21 How. [62 U. S.] 366; Blacksmith v. Fellows, 7 N. Y. 401, 19 How. [60 U. S.] 366; City of Syracuse v. Hogan, 234 N. Y. 457; Bryan v. McGurk, 200 N. Y. 332; Shea v. Export S. S. Corp., 253 N. Y. 17; Meyers v. American Locomotive Co., 201 N. Y. 163; Buckles v. State of New York, 221 N. Y. 418; Seneca Nation of Indians v. Appleby, 196 N. Y. 318; Johnson v. Long Is. R. R. Co., 162 N. Y. 462; Seneca Nation v. Christy, 126 N. Y. 122, 162 U. S. 283; Strong v. Waterman, 11 Paige Ch. 607; United States v. Seneca Nation of N. Y. Indians, 274 F. 946.) II. Appellants cannot be regarded as “ intruders ” within the meaning of section 8 of the Indian Law. (Miller v. McCullough, 104 Pa. 624; Wright v. Wright, 188 Misc. 268; Frazier v. Cropsey, 124 Misc. 367.) III. The order of removal cannot stand since it is no longer supported by any finding that title or right of possession is in the Shinnecock Tribe and not in appellants, and since there is no legally sufficient evidence to support a finding of occupancy by the tribe. IV. The finding made by the County Court as to the location of the old Indian ditch does not, in any event, support the order of removal. (Murray Co. v. Lidgerwood Mfg. Co., 241 N. Y. 455.)

      John P. Gohalan, Jr., District Attorney (David DuVivier of counsel), for respondents.
    I. The lands upon which appellants entered and were erecting houses were in fact Indian lands. II. Under the statute (Indian Law, § 8), the County Court was under a duty to determine whether or not the lands entered upon were Indian lands. (People ex rel. Cutler v. Dibble, 16 N. Y. 203.) III. The County Court’s finding that the lands in question were a part of the Shinnecock Indian Reservation is fully supported by the evidence. IV. Appellants were not entitled as of right to a trial by jury of the issues here presented. Appellants’ alleged constitutional right to a jury trial must be measured by the law as it existed in 1846. (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Moot v. Moot, 214 N. Y. 204; Matter of Gurland v. Beckenstein, 286 App. Div. 704, 309 N. Y. 969.) V. The reason underlying this court’s decision in the Dibble case is that the Indians’ “ rights of property in their lands rise no higher than the right of occupancy ”. (Seneca Nation of Indians v. Appleby, 196 N. Y. 318; People ex rel. Cutler v. Dibble, 16 N. Y. 203; Strong v. Waterman, 11 Paige Ch. 607; Trustees of East Hampton v. Vail, 151 N. Y. 463; Trustees of Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1; Fellows v. Lee, 5 Denio 628; Ogden v. Lee, 6 Hill 546.) VI. Since appellants failed to request a trial by jury or the removal of the case into a court where such a trial could have been had, they are now foreclosed from raising this question. (Matter of Sisson [Gleason Certificate], 179 App. Div. 236; Matter of Podell, 138 Misc. 6; Security Discount Associates v. Weissbaum, 283 App. Div. 920; Lally v. Cronen, 220 App. Div. 253, 247 N. Y. 58; Alfred Univ. v. Frace, 193 App. Div. 279.) VII. Appellants were accorded due process of law. (Brinkerhoff Faris Co. v. Hill, 281 U. S. 673; Baldwin v. Traveling Men’s Assn., 283 U. S. 522.)
   Froessel, J.

In a proceeding instituted by the District Attorney of Suffolk County pursuant to section 8 of the Indian Law, the County Court of Suffolk County adjudged that appellants were intruders upon lands comprising part of the Shinnecock Indian Reservation in Southampton, Long Island. The court directed the issuance of a warrant for their removal and delineated the boundaries of the 11 lands owned and occupied by the Shinnecock Tribe of Indians and affected by this determination ’

The proceeding involved a 9-acre triangular parcel fronting on the southerly side of Montauk Highway. Appellants claimed title to this land and were in the process of erecting houses for the purpose of settling and residing thereon. In order to determine whether or not appellants were intruding upon Indian land, it was necessary for the County Court to consider chapter 46 of the Laws of 1859, and two deeds executed in accordance with that enactment.

Pursuant to the statute and deeds, all land north of an established and well defined” line running along an Indian ditch was granted by the Trustees of the Shinnecock Tribe to the Trustees of the Town of Southampton, and all land south of that line was granted by the latter to the former. The dividing boundary line was described as “ commencing at the head of the creek on the east side of said [Shinnecock] Neck, and running along the Indian ditch, where the fence now stands, to the Stephen Post meadow, so called; thence along the old ditch on the south side of the said meadow to old Fort Pond, where the water fence formerly stood.” (L. 1859, ch. 46, § 1; emphasis supplied.)

Appellants’ claimed source of title to the disputed parcel stemmed from a deed to a large tract, recorded in 1861, from the town trustees to appellants’ predecessors in title. The parties stipulated that that deed conveyed 3,200 acres and included the land lying immediately to the north of the Indian Ditch”. The issue, as framed by the County Court, was: 1 ‘ Where was the old Indian Ditch mentioned in the legislation of 1859 located when the above conveyances were exchanged? ” Petitioner sought to prove that the ditch ran completely along the southerly shoulder of an old sand road that is now Mon-i auk Highway. Appellants, on the other hand, contended that the old Indian ditch started at an easterly point along Montauk Highway and then veered off at an angle in a southwesterly direction until it reached a point some 340 feet south of the highway. A total of 24 witnesses testified, and a mass of documentary evidence was introduced.

The trial court resolved the disputed issue of fact in favor of petitioner. It found that the Indian ditch referred to in the 1859 statute and deeds ran along the southerly line of the old sand road and had been obliterated by the modernizing of Montauk Highway. The ditch which appellants claimed was the “ Indian ditch ” was found 11 to be just another ditch with which the reservation is lined in several places ”. After a lengthy colloquy, the court also denied appellants’ motion made at the very end of the case to dismiss the complaint on the ground that the court lacked jurisdiction of the subject matter of the proceeding.

Appellants urge on this appeal that “ Section 8 confers a limited jurisdiction upon the County Court to award summary relief in certain special circumstances; i.e., where there is no dispute as to the Indian Tribe’s ownership or right of possession as respects the particular land ’ ’. Appellants contend further that where alleged intruders enter upon lands under color of title, and the evidence discloses a substantial dispute on the issue of ownership, the remedy provided by section 8 may not be invoked without violating their constitutional right to a trial by jury.

The constitutionality of the predecessor of section 8 (L. 1821, ch. 204) was upheld by this court and by the Supreme Court of the United States in People ex rel. Cutler v. Dibble (16 N. Y. 203, affd. 62 U. S. 366). The Dibble case involved two treaties entered into in 1838 and 1842 between the United States Government and the Seneca Indian Nation. In these treaties, as outlined by the Supreme Court in Fellows v. Blacksmith (60 U. S. 366), the Seneca Nation conveyed four reservations in western New York to two white persons named Ogden and Fellows, pursuant to certain terms and conditions — which included a determination by arbitrators of the amount to be paid, the apportionment thereof, and the filing of the arbitrators’ report with the Department of War. The Seneca Nation agreed to remove to a new residence in the West within five years, with the financial aid of the United States Government. Neither treaty, however, made any provision as to the manner in which the Indians were to surrender possession.

The Fellows case involved an action of trespass against the grantees, who had forcibly taken possession of the Tonawanda Reservation, one of the four conveyed. The Supreme Court held (60 U. S., supra, p. 372) that “ the grantees derived no power, under the treaty, to dispossess by force these Indians, or right of entry, so as to sustain an ejectment in a court of law; that no private remedy of this nature was contemplated by the treaty, and that a forcible removal must be made, if made at all, under the direction of the United States ”.

In the Dibble case (supra), the defendants, who claimed title through Ogden and Fellows, entered into possession of the Tonawanda Reservation, and a proceeding was brought by the District Attorney, under the predecessor of section 8, to remove them as intruders. Although the statute, by its terms, did not then require it, defendants were notified of the institution of the proceeding. They appeared before the County Judge and challenged his jurisdiction “ on the ground that they had entered and occupied the lands, claiming title under a written instrument adversely to the Seneca nation of Indians, and therefore, by the Constitution and laws of the State, they were entitled to a trial by jury, according to the course of the common law, and could not thus be removed by summary proceedings under this act.” (62 U. S., p. 369.) This plea, which is identical to the one now being pressed by appellants, was overruled by the County Judge. The defendants then pleaded, on the merits, that title to the land and hence the right of possession was in them through the treaty conveyance to Ogden and Fellows.

This court held (16 N. Y., supra, p. 216): “ The case of Blacksmith v. Fellows is decisive * * # against the claim of [defendants] to enter upon and occupy the lands at present ” (emphasis supplied), and emphasized (pp. 215-216) that “ it .aowhere appears, nor was it pretended ’ ’ that the conditions precedent to defendants’ right of entry — the making and filing of the arbitration award—had occurred. Judge Bbowjst, writing for the majority, made it clear at the outset of his opinion (16 N. Y., p. 211)—“ I decline to consider whether Ogden and Fellows obtained a good title to the lands known as the Tonawanda reservation, under the grant to them, and the treaties of January 15, 1838, and of May 20, 1842; because I think the rights of the relators to occupy the lands in controversy may be disposed of upon other grounds.” (Emphasis supplied.) Since only the United States Government had the right, under the treaties, to remove the Indians from their reservation, the defendants were ordered removed as intruders, regardless of the fact that they may have had good title to the lands.

In upholding the constitutionality of the statute, this court wrote, in part (16 N. Y., supra, pp. 213-214): “ This right of summary removal is indispensably necessary to the protection of its [the State’s] own property, and to enable the state to fulfill its duties and obligations to the remnants of the Indian tribes within its borders, who are too feeble and helpless to protect themselves. It is under no constitutional or other obligation to wait the judicial determination of the courts to remove intruders from what are indisputably the ungranted lands of the state, or the reservations of the Indian tribes. The moment the intrusion is made out, and the nature of the territory intruded upon appears, there is nothing to be tried, and nothing for the courts to determine, in respect to the right of occupancy and possession. Besides, the order of removal adjudicates upon no claim, and determines no right or title, but leaves the party removed to the usual remedies to assert and establish any title to the locus in quo which he may deem himself to possess.” It will be noted that the last sentence referred to the order of adjudication in that case, which determined no title only because the court did not find it necessary to pass upon title.

Unlike the 1821 statute involved in the Dibble case (supra), present section 8 requires the County Court to “ issue a notice directed to the person against whom complaint is made ” to appear and answer, and it is only after ‘1 proof of the personal service of such notice ” that it is authorized to “ take proof of the facts alleged in the complaint ” (see, in this connection, Chief Judge Denio’s discussion in the Dibble case, 16 N. Y., pp. 218-220). Section 8 then commands the court to ‘ ‘ determine whether such person is an intruder upon the lands of such reservation ”, and in order to do so it obviously must determine whether the land is in fact part of an Indian reservation. The court’s jurisdiction to issue the warrant in the instant case depended upon whether the disputed parcel was Indian land, and it is settled beyond cavil that a court has jurisdiction to determine the facts upon which its jurisdiction depends (Matter of United States of Mexico v. Schmuck, 294 N. Y. 265, 271-273; Consumers Lbr. Co. v. Lincoln, 225 App. Div. 484, 485; Stoll v. Gottlieb, 305 U. S. 165, 171-172; United States v. Mine Workers, 330 U. S. 258, 289-295; 21 C. J. S., Courts, § 113). Furthermore, where a County Court is vested by statute with jurisdiction over a special proceeding, it has the same power in and over the proceeding as the Supreme Court (Civ. Prac. Act, § 69), including the jurisdiction to decide questions of title to real property (Matter of Yaras [City of Albany], 283 App. Div. 214, 218, affd. 308 N. Y. 864).

This court declined to pass upon the issue of title in the Dibble case (supra), not because it felt powerless to decide the issue but because it was not dispositive of the controversy. The court did in fact construe the far more solemn documents, the treaties, to determine whether defendants were intruders, just as the court here construed the description in the 1859 statute and deeds to determine the same issue. Appellants had a full dress trial on the issue of ownership, and their contention that the court was obliged to dismiss the proceeding as soon as the evidence showed a genuine dispute as to title to the parcel is untenable.

As to the alleged constitutional right to a jury trial on the issue of title, we do not reach the merits of this claim, as appellants are estopped by their conduct from asserting it. At the very outset of the trial, it clearly appeared — by stipulation — that the principal issue in the case was a dispute as to ownership. Thereafter, upon the court’s own inquiry, the defense attorney assured the court that his clients had no objection to the procedure pursued by the District Attorney. The court pointed out that it did not ‘ ‘ want to waste a lot of time and money taking proof, and then have a question of jurisdiction or a procedural question raised ”, and the defense attorney replied: “ There is no question on that score on behalf of my defendants.”

While it is well settled that parties may not by their consent confer jurisdiction over the subject matter on a court (Meyers v. American Locomotive Co., 201 N. Y. 163, 166; Shea v. Export S. S. Corp., 253 N. Y. 17, 21), the right to a trial by jury is a personal right which must be timely asserted. Since appellants consented to have the issue of ownership tried by a court of competent jurisdiction and participated actively on the merits, they cannot now be heard to complain (Baird v. Mayor, 74 N. Y. 382; Security Discount Associates v. Weissbaum, 283 App. Div. 920).

The error in the proceedings below, which requires a reversal, lies in the decision of the Appellate Division. The court specified in its order that it was affirming the order of the County Court ‘1 upon the opinion and decision slip of the court herein ’ ’. In its opinion, the Appellate Division, relying upon the Dibble case (supra), held: “ The order [removing appellants as intruders] does not determine right or title in the land. It leaves the parties who are removed from the land in question to the usual remedies to assert and establish any title to the land which they deem themselves to possess ”.

The order of the trial court, however, from each and every part of which appellants appealed, not only squarely adjudged that the disputed parcel was part of the Shinnecock Indian Reservation, but went so far as to describe, by degrees, minutes and seconds, the boundaries of the lands “ owned and occupied by the Shinnecock Tribe of Indians and affected by this determination ” (emphasis supplied). By isolating the language used in the Dibble case (supra) from the context of the peculiar facts there involved, the Appellate Division erroneously assumed that it could divest appellants of possession without passing on their claim of ownership.

As previously noted, the judgment of this court in the Dibble case (supra) literally did not “ determine right or title in the land ”, since there was no dispute that the Seneca Indian Nation had conveyed the lands in question to defendants’ predecessors in title. All that case decided was that under the treaties of conveyance the defendants had no right of entry onto the reservation lands until certain conditions precedent occurred. Under the peculiar circumstances of the Dibble case, the right to occupy the lands had not yet vested in the record owners of the fee. Since the Indians were not obliged to surrender possession until directed to do so by the United States Government, it was possible to evict defendants as intruders, notwithstanding their alleged title to the premises.

In the instant case, however, title and the right to possession were inseparable, and the trial court lacked jurisdiction to oust appellants as intruders without a finding that the disputed parcel was, in fact, Indian land. The court made the requisite finding that the lands in question were part of the Shinnecock Reservation, thereby sustaining its jurisdiction, and its order most decidedly determined right or title in the land ”. By holding to the contrary, without passing on the factual issue of ownership, the Appellate Division ruled, in effect, that appellants could be removed as intruders, notwithstanding the fact that they might own the land in question. Since this ruling is erroneous as a matter of law, section 606 of the Civil Practice Act requires us to remit the case to the Appellate Division for its determination upon the questions of fact raised in that court.

In short, the County Court, having jurisdiction of the parties and the proceeding, had power under section 8 to decide the issue of ownership. The Appellate Division, however, could not affirm the order divesting appellants of possession without deciding who had title to the land and hence the right to possession.

The order appealed from should be reversed, without costs, and the matter remitted to the Appellate Division for further proceedings not inconsistent with this opinion.

Desmond, J. (dissenting).

First enacted as chapter 204 of the Laws of 1821, the statute which is now section 8 of the New York Indian Law prescribes a summary procedure for ousting from ‘ ‘ lands owned or occupied by any nation, tribe or band of Indians ” in this State any intruders, that is, any persons attempting to settle or reside on such lands ‘1 except the members of such nation, tribe or band.” In People ex rel. Cutler v. Dibble (16 N. Y. 203, affd. 62 U. S. 366) the purpose of such a proceeding was authoritatively stated as being “ to remove intruders from what are indisputably the ungranted lands of the state, or the reservations of the Indian tribes ” (16 N. Y., p. 214). The holding of this court in the Dibble case, never since questioned, was that “ the order of removal adjudicates upon no claim, and determines no right or title, but leaves the party removed to the usual remedies to assert and establish any title to the locus in quo which he may deem himself to possess ” (same page). The lower court Dibble decision (18 Barb. 412) which this court affirmed had said (pp. 415-416) that, in order to give a County Judge jurisdiction of such a removal proceeding, “ it must appear, undoubtedly, that the intrusion was upon indian lands, that is, lands belonging to or occupied by a nation or tribe of indians The United States Supreme Court, affirming this court in Dibble, declared that The statute in question is a police regulation for the protection of the Indians from intrusion of the white people, and to preserve the peace ” (62 U. S., p. 370). Every other authority, early or late, construes the Dibble case as holding that a section 8 proceeding is purely a summary one whereby the State exercises its police power to keep the peace on Indian lands (see “ Federal Indian Law”, U. S. Dept. Interior, 1958, p. 514, n.; 27 Am. Jur., Indians, § 48, pp. 572-573; 42 C. J. S., Indians, § 72, p. 784; Judge Pound in 22 Col. L. Rev. 97-99; People ex rel. Ray v. Martin, 294 N. Y. 61, 72, 73; Matter of Stakel [Blueye], 281 App. Div. 183, affd. 306 N. Y. 679; Matter of Fischer [Checkman], 283 App. Div. 518; Matter of Herne, 133 Misc. 286).

Despite all this, the County Court in the proceeding here under review undertook to decide a question of title as between the Shinnecock Indians and the defendant corporations which had built houses on the lands in dispute. The dispute which made its appearance at the trial of this section 8 proceeding was as to the boundary line of premises to which these defendants held title. When it thus became apparent that this was no matter of removing squatters from undisputed Indian lands but an actual dispute as to ownership, the County Judge should have dismissed the proceeding as being unavailable for such a purpose. Instead, the court denied defendants’ motion on this jurisdictional ground for dismissal, and undertook to settle the contest as to boundary and title by making an order describing the land in litigation as being owned and occupied ” by the Shinnecock Tribe on whose behalf the District Attorney of Suffolk County (see § 8) had brought the proceeding. The Appellate Division affirmed, adopting from the Dibble opinion in this court the statement that the order “ does not determine right or title in the land [but] leaves the parties * * * to the usual remedies to assert and establish * * * title ”.

We agree with the Appellate Division that no section 8 order can determine the ownership of land which is in dispute between an Indian Tribe and other persons. However, it follows from this that the Appellate Division, instead of affirming, should have reversed the County Court order and should have dismissed the proceeding, leaving the parties to the “usual remedies” to which the Appellate Division referred.

The Shinnecock Tribe of Indians, now numbering about 200 persons, has occupied lands on the easterly end of Long Island since before the white settlers arrived (see Report of Special Indian Committee, N. Y. State Assembly, Document No. 51, 1889, p. 53; and “ The Indian Today in New York State ”, published by N. Y. State Joint Legislative Committee on Indian Affairs and Interdepartmental Committee on Indian Affairs, rev. April 1, 1959, p. 10). Just a century ago in 1859, by authority of chapter 46 of the Laws of that year, various land transactions and disputes between the tribe and the Town of Southampton, Suffolk County, were settled (see People ex rel. Howell v. Jessup, 160 N. Y. 249) by an exchange of deeds which partitioned lands including the parcel here in dispute by conveying to the trustees of the Shinnecock Tribe a parcel known as Shinnecock Neck, south of an “Indian ditch” and by conveying to the town the lands lying north of that ditch (see reference in “ Federal Indian Law ”, supra, p. 984). Defendants in this proceeding derive their title through mesne conveyances from the Town of Southampton as such 1859 grantee. Whether the plot of land here in litigation was on the north or south side of the old “ Indian ditch ” in 1859 determines whether it belongs to the Shinnecock Tribe or to defendants, but the actual ditch has long since disappeared. The issue, therefore, which took form during the course of this trial, was as to a boundary line. For such an adjudication a section 8 proceeding could not validly be used.

Section 8 of our Indian Law is of the same character and meaning as the Federal “ intruder ” statutes passed by Congress from time to time (see U. S. Code, tit. 25, § 180, former §§ 220, 222; Cook v. Hudson, 110 Mont. 263, 285 et seq.; Murdock v. Farrell, 49 Utah 314, 319; Eells v. Ross, 64 F. 417; United States v. Flournoy Live-Stock & Real Estate Co., 71 F. 576; United States ex rel. Gordon v. Crook, 179 F. 391; Morris v. Hitchcock, 194 U. S. 384, 389; and see other Federal statutes cited in “Federal Indian Law”, supra, p. 632, n.) An assertion is made here that our present section 8 is somehow different in meaning from its prototype construed in the Dibble case (supra). The difference is said to be that the statute now calls specifically for notice to the defendant and requires the County Judge to take proof of the facts, whereas neither of those requirements was expressed in the law at the time that Dibble was decided. However, this difference proves nothing since the Dibble case record shows that notice was given and that the facts were fully tried out before the court (and see People ex rel. Waldron v. Soper, 7 N. Y., p. 430 [1852]).'

Petitioner says that all questions as to the jurisdiction of the County Judge to decide the title dispute are out of the case because defendants waived this jurisdictional point. At the opening of the hearing, the County Judge asked defense counsel whether there was any objection to the procedure being pursued by the District Attorney, that is, any objection to the use of section 8. The defense attorneys answered that they had no objection and that there was no question of jurisdiction. Of course there was at that moment no question of jurisdiction since the District Attorney under the statute and as representing the tribe was before the court on a complaint that defendants were intruders on the tribal lands. That complaint required the Judge to issue a notice to the defendants and to hold a hearing, take proof of the facts and determine whether defendants were intruders “upon the lands of such reservation.” But a true jurisdictional question did come into the case when the proofs showed that this was actually an issue as to ownership of land. At that stage of the trial defense counsel made a timely motion to dismiss the proceeding on the ground that the court had no jurisdiction since it appeared that the land was not indisputably within the bounds of ah Indian reservation. The County Judge held that the jurisdictional point had been waived by defendants. We do not agree. Subject matter jurisdiction cannot be waived (see Meyers v. American Locomotive Co., 201 N. Y. 163, 166; Buckles v. State of New York, 221 N. Y. 418; Shea v. Export S. S. Corp., 253 N. Y. 17, 21) and, furthermore, the record here shows that there was in fact no intent to waive. Thus, although full proof was taken as to boundary and title, there was no jurisdiction in the County Court to make a determination thereon.

There is other historical data which would make it highly inappropriate to use a ‘ ‘ reservation intruder ’ ’ statute like section 8 to decide this boundary line quarrel. The Shinnecocks have never had treaty relations or any other relations with the United States Government, they have lost such tribal customs and language as they may have used in times long past, their lands are not listed as ‘ ‘ reservations ’ ’ by the United States Indian Service and for generations they have been considered to be under New York State’s control, protection and government (see 1934 Atty.-Gen. 285; informal opinion of Attorney-General of New York, June 11,1941).

It is suggested that this determination should be allowed to stand and that the Shinnecock Tribe should have the benefit of it because it may be impossible, on account of the status of the Indian Tribe, to get a determination in any other form of litigation. That question is not before us now. However, we point out that sections 5, 11-a, 120 and 121 of the Indian Law make available to the Shinnecock Tribe and its members, as well as to those suing them, full access to our State courts (see St. Regis Tribe v. State of New York, 5 N Y 2d 24). Sections 5 and 11-a give full jurisdiction to the State courts as to Indian reservations like that of the Shinnecocks where there is no Peacemaker’s Court and make broad provision for actions and special proceedings in the State courts between Indians or between one or more Indians and any other person (see, as to Federal authorization for § 5 amdt., U. S. Code, tit. 25, § 233, and U. S. House Reports Nos. 2720, 3040, 81st Cong., 2d Sess. [1950]). More specifically as to the Shinnecock Tribe, sections 11-a and 121 authorize the trustees of that tribe to deal with the lands of the tribe including the maintenance of actions or proceedings to recover the possession of such lands of the tribe unlawfully occupied by others and for damages for such occupation.

The order should be reversed, without costs, and the proceeding dismissed.

Chief Judge Conway and Judges Dye and Bxjbke concur with Judge Fboessel; Judge Desmond dissents and votes to reverse and to dismiss the proceeding in an opinion in which Judge Van Voobhis concurs; Judge Fuld taking no part.

Order reversed, etc.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    In the Matter of the Claim of Leonard Engle, Appellant, against Niagara Mohawk Power Corporation et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued May 12, 1959;
    decided July 8, 1959.

      William J. Roberts for appellant.
    I. The reduction of a compensation award by weighing the effect of a pre-existingcondition or of other nonindustrial accidents is beyond the power and authority of the Workmen’s Compensation Board. (Matter of Schurick v. Bayer Co., 272 N. Y. 217; Matter of Conway v. Aluminum & Brass Co., 279 App. Div. 82, 304 N. Y. 571; Matter of Meszaros v. Goldman, 307 N. Y. 296; National Homeopathic Hosp. Assn. v. Britton, 147 F. 2d 561, 325 U. S. 857; Matter of Miller v. Workmen’s Compensation Bd., 284 App. Div. 1071; Matter, of Gioia v. Courtmel Co., 283 App. Div. 40; Matter of Mastrodonato v. Pfaudler Co., 307 N. Y. 592.) II. The record contains no evidence of the percentage of effect of the industrial accident. (Riehl v. Town of Amherst, 308 N. Y. 212; Matter of Kopec v. Buffalo Brahe Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65.) III. The employer and carrier cannot be permitted to profit from their failure promptly to provide the claimant with the required surgical treatment.

      W. D. Coleman for Niagara Mohawk Power Corporation and another, respondents.
    I. The questions of the causal relationship of appellant’s operation and accompanying surgical disability to his industrial accident and of the extent of that relationship, if any, were solely ones of medical fact upon which the Workmen’s Compensation Board’s decision and award were final under section 20 of the law. (Matter of Meszaros v. Goldman, 307 N. Y. 296; Matter of Anderson v. Babcock (& Wilcox Co., 256 N. Y. 146; Matter of Fichtner v. Bloomingdale Bros., 4 A D 2d 897, 4 N Y 2d 914; Matter of Conklin v. Arden Farms Dairy Co., 2 A D 2d 910, 3 N Y 2d 860; Matter of Zoller v. Barnard, 1 A D 2d 721; Matter of Halperin v. Salzstein & Co., 6 A D 2d 942; Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Sullivan v. B & A Constr., 307 N. Y. 161; Matter of Schurick v. Bayer Co., 272 N. Y. 217; Matter of Mastrodonato v. Pfaudler Co., 307 N. Y. 592; Matter of Conway v. Aluminum & Brass Co., 279 App. Div. 82; Matter of Bervilacqua v. Clark, 225 App. Div. 190, 250 N. Y. 589; Matter of Worden v. General Drop Forge Corp., 285 App. Div. 910.) II. Assuming, arguendo, that the questions of the relationship, etc., of appellant’s operation and surgical disability to his industrial accident were not solely ones of fact, the record then presents no substantial evidence, even considering only that offered on his part, by which to charge any liability whatsoever to said industrial accident. (Matter of Du Cennois v. Daisy Dairy, 286 App. Div. 923; Raynor v. Metropolitan St. Ry. Co., 106 App. Div. 449; Matter of McCormack v. National City Bank, 303 N. Y. 5; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65.)
    No appearance for Workmen’s Compensation Board, respondent.
   Desmond, J.

Claimant’s objection tó this workmen’s compensation award is that it charges to the employer and carrier 1/6 only of the surgical, disability and medical expenses” in respect to an operation performed on claimant on September 19, 1955 to stabilize his arm or shoulder. Claimant suffered six separate dislocations of his right shoulder, the first one on October 19, 1953, in a high school football game, and the last one on August 31,1955 when he was sitting in a chair stretching his arms. Of that series of six dislocations of the same shoulder one only was industrially related, that being the dislocation of November 8, 1954 (there were two later dislocations) while claimant was working for this employer. Claimant lost no time from work after or as a result of that industrial accident and the medical expense of the treatment immediately related thereto was paid by this employer or its carrier. He continued to work for the employer for about two months and then, being a temporary employee, was laid off and remained unemployed. Then came the fifth dislocation on May 30, 1955 while claimant was swimming and the sixth incident (August 31, 1955) while he was sitting in a chair stretching his arms. It was not until after this sixth such dislocation that claimant was operated upon.

The workmen’s compensation referee gave him an award against this employer and insurer for 10-3/5 weeks’ disability plus the surgeon’s bill and the hospital bills on a finding that the industrial accident of November 8, 1954 aggravated a pre-existing condition and left the shoulder in a weakened condition which required surgery for correction.” The Workmen’s Compensation Board, however, modified the decision of its referee by charging the employer-carrier with II6 only of the disability period following the operation and 1/6 only of the surgical and hospital expense of the operation. There was a board finding that the surgical repair of September, 1955 and the subsequent disablement were ascribable to all six accidents (the industrial accident, the three preceding ones and the two subsequent ones) and that the industrial accident contributed proportionately 1/6 to claimant’s need for shoulder repair and consequential disability.

The theory of claimant, simply stated, is that this employer hired him with a known history of prior shoulder injuries and took him as he found him, that the 1955 surgery and disability were precipitated by the industrial accident and that the Workmen’s Compensation Law requires that an employer pay the full consequences of an industrial accident. The theory of the employer-carrier is that apportionment' of an award against several accidents is customary and valid when justified by proof and that this employer-carrier should not pay the whole cost simply because the other five accidents were nonindustrial. Essentially, we have here an affirmed determination of fact and since it is reasonably supported by the record besides being fair and just it should be upheld unless there is some controlling rule of law to the contrary. We find no such rule.

There seems no reported decision directly in point. However, subdivision 7 of section 15 of the Workmen’s Compensation Law which in the same or similar language has been in the statute for many years seems in its last proviso to justify this result: “ 7. Previous disability. The fact that an employee has suffered previous disability or received compensation therefor shall not preclude him from compensation for a later injury nor preclude compensation for death resulting therefrom; but in determining compensation for the later injury or death his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury, provided, however, that an employee who is suffering from a previous disability shall not receive compensation for a later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability except as hereinafter provided in subdivision eight of this section.”

Claimant does not deny that when there is a series of compensable accidents there can be an apportionment (see Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146, and many other cases, one of the most recent being Matter of Fichtner v. Bloomingdale Bros., 4 N Y 2d 914). He argues, however, that subdivision 7 of section 15 (supra) is applicable only when the previous accidental injuries are compensable, citing Matter of Conway v. Aluminum & Brass Co. (304 N. Y. 571).

In some instances there might be a difficulty of reconciliation between the command of subdivision 7 of section 15 that compensation for a later injury shall not exceed compensation allowable for such injury considered by itself and the settled rule of the cases that when a subsequent industrial accident aggravates a previous disability the employer is liable for the full consequences (see Matter of Schwab v. Emporium Forestry Co., 216 N. Y. 712 [1915], apparently the oldest case). However, we see in the present case no conflict between these two rules. The employer paid all the immediate costs of the industrially caused fourth accident. The fourth dislocation of this man’s shoulder did not aggravate a previous disability and result in a new and greater disability. For all that appears in this record, no one of these dislocations created a new and worse condition. It was the propensity to such injuries after the first or football accident which finally, after the sixth mishap, convinced the surgeon that permanent repair was necessary. The dissenting Justices in the Appellate Division in the present case said that the industrial accident did aggravate and worsen the previous condition but this actually would be a new finding, seemingly based on the testimony of one of the physician-witnesses. However, that physician’s own testimony can be read to mean not that the industrial accident “ aggravated ” in the sense that it made any pre-existing condition worse, but that the industrial accident plus the others confirmed the idea that eventually claimant would have to have some permanent repair of his shoulder. The physician refused to testify that the likelihood of future dislocations was increased by the industrial accident dislocation. The whole medical testimony justifies the conclusion in the majority Appellate Division opinion that the picture was one of a “ recurrent dislocating shoulder ” and that the principal indication for surgery was the fact that there were so many dislocations, rather than that any one dislocation had been a particularly aggravating factor in the man’s condition.

In the appellant’s brief there is some discussion of subdivision 8 of section 15 which is construed in Matter of Mastrodonato v. Pfaudler Co. (307 N. Y. 592) and which subdivision provides that, if an employee who has a permanent physical impairment and is hired as a disabled person incurs a subsequent disability in a work accident resulting in a new permanent and substantially greater disability than before, the current employer must pay the compensation but is reimbursed in part from a Special Disability Fund. But subdivision 8 does not apply to the present situation and neither of the Appellate Division opinions in the present case relies on subdivision 8. There is no showing here that this claimant was hired as a previously permanently disabled person or, in fact, that he was a permanently disabled person.

The final argument of appellant is that there was no evidentiary basis in this record for the finding that the industrial accident’s contribution to the necessity for surgery was approximately 1/6 of the whole causation. Of course, such a finding could never have mathematical or exact demonstration. But the physician on whose testimony claimant relies here said that this was a common condition of a recurrent dislocating shoulder ’ ’ and that it ‘1 constituted a proportional aggravation of any subsequent condition in that shoulder ’ ’. Surely it was not irrational to conclude that each of the six accidents contributed in equal part to the final necessity for surgery. There is support in our decisions for the theory that in the absence of special circumstances equal apportionment is the best rule to apply (see Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146, supra; Matter of Fichtner v. Bloomingdale Bros., 4 N Y 2d 914, supra; Matter of Conklin v. Arden Farms Dairy Co., 3 N Y 2d 860).

The order should be affirmed, with costs.

Chief Judge Conway and Judges Dye, Fuld, Froessel, Van Voorhis and Burke concur.

Order affirmed.


text:
    Southwestern Shipping Corporation, Appellant, v. National City Bank of New York, Respondent.
    Argued April 10, 1959;
    decided July 8, 1959.

      Lloyd I. Isler for appellant.
    I. Respondent as a mere depository or transmittal agent has no status to assert the defense of illegality of the Garmoja-Corti agreement. (Stone v. Freeman, 298 N. Y. 268; Murray v. Vanderbilt, 39 Barb. 140; Merritt
      v. Millard, 4 Keyes 208; Woodworth v. Bennett, 43 N. Y. 273; Leonard v. Poole, 114 N. Y. 371.) II. The defense of illegality has no application since appellant was not required to and did not rely on the Garmoja-Corti agreement as the basis of its rights in the present action. (De Persia v. Merchants Mut. Cas. Co., 268 App. Div. 176, 294 N. Y. 708.) III. The trial court erred in ruling that respondent was the agent of Garmoja. IV. The trial court erred in taking judicial notice of the Italian decrees, advisory opinions and court decisions and deciding the issue of Italian law on the basis of private discoveries and translations thereof. (Walton v. Arabian Amer. Oil Co., 233 F. 2d 541.) V. The trial court’s determination, as a matter of law, that the Garmoja-Corti agreement and the assignment are illegal, void and unenforcible under Italian law is erroneous. (Rosasco Creameries v. Cohen, 276 N. Y. 274; Sajor v. Ampol, 275 N. Y. 125.) VI. The evidence adduced by respondent of the Garmoja-Corti agreement establishes that such agreement was approved by the Italian exchange authorities and, therefore, cannot be held to be illegal by a New York court. VII. The Bretton Woods Agreement does not operate to deprive appellant of its right to recover herein. (Loucks v. Standard Oil Co., 224 N. Y. 99; State of Colorado v. Harbeck, 232 N. Y. 71; Moore v. Mitchell, 30 F. 2d 600, 281 U. S. 18; Beadall v. Moore, 199 App. Div. 531.)

      Charles C. Parlin, Jr., and Chauncey B. Garner for respondent.
    I. The trial court did not abuse its discretion by taking judicial notice of Italian law or by accepting the testimony of defendant’s expert witness rather than plaintiff’s expert witness. II. The record supports the conclusion of the trial court that plaintiff was acting merely as agent for Garmoja in the transaction. III. Appellant took no exception to the trial court’s reserving to itself questions under the affirmative defense and may not urge this as reversible error. . (Dudar v. Milef Realty Corp., 258 N. Y. 415; Brown v. Du Frey, 1 N Y 2d 190.) IV. There was no agreement between the parties independent of the illegal Anlyan assignment. (Woodworth v. Bennett, 43 N. Y. 273; Gray v. Hook, 4 N. Y. 449.) V. The trial court correctly refused to help plaintiff consummate an executory illegal transaction. (Murray v. Vanderbilt, 39 Barb; 140; Merritt v. Millard, 4 Keyes 208; Singer v. Yokohama Specie

      Bank, 267 App. Div. 980, 293 N. Y. 542; Stone v. Freeman, 298 N. Y. 268; Wood v. Hill, 214 App. Div. 417; Adler v. Zimmerman, 233 N. Y. 431; Goodrich v. Houghton, 134 N. Y. 115; Dewitt v. Brisbane, 16 N. Y. 508.) VI. The Bretton Woods Agreement also precludes enforcement of the Garmoja-Corti exchange transaction. (Perutz v. Bohemian Discount Bank in Liquidation, 304 N. Y. 533; Kraus v. Zivnostenska Banka, 187 Misc. 681.)
   Froessel, J.

Plaintiff, a New York corporation, was an export brokerage firm which acted as purchasing agent for several foreign importers, chiefly in Italy. In September, 1951 one of plaintiff’s principal Italian customers, a business entity named Garmoja, placed an order with it for 300 tons of fatty acid at a price of 37,222 American dollars. At this time the Italian foreign exchange regulations required that an importer have a permit license to pay dollars for the particular product it desired to purchase in the United States, but Garmoja had never obtained such a license. In order, therefore, to make dollars available to plaintiff in New York to enable it to purchase the fatty acids, Garmoja entered into a contract with Sicca Danti Corti (hereinafter called Corti), another Italian concern, which had obtained a permit license to pay dollars to an American named Anlyan for rags to be imported from the United States.

The contract provided that Garmoja would pay lire to an Italian bank, Crédito Lombardo, for the account of Corti, and the Italian bank would transmit a credit for the dollar equivalent, $37,222, to defendant National City Bank of New York “ in favor of ” Anlyan; Anlyan, in advance of this transfer of credit, would execute an assignment of the dollars to plaintiff, which had an account with defendant at its 26 Broadway branch. Anlyan never had an account with defendant in his own name. The transaction, in substance, contemplated the purchase of American dollars in Italy and the transfer from Corti to Garmoja of the license granted to Corti to transmit dollars to the United States for a specific import.

To carry out this arrangement, Corti obtained from Anlyan a letter addressed to defendant, instructing it to pay plaintiff the $37,222 it was to receive from Crédito Lombardo for Anlyan’s account ”. The letter stated defendant should treat the instruction to pay plaintiff “ as irrevocable and without recourse whatsoever from my part ” (emphasis iu original). Corti delivered this letter of assignment to Garmoja, which in turn forwarded it to plaintiff to have Anlyan’s signature verified and to obtain assurance from defendant that it would pay the amount to plaintiff.

Plaintiff thereupon Avrote a letter to defendant—“ Confirming the call made by our representative at your Foreign Teller’s Office ”—with Avhich it enclosed a copy of Anlyan’s letter of assignment. Plaintiff’s letter requested defendant to authenticate Anlyan’s signature and transfer the money to its account. A memorandum was then dispatched by defendant to the Signature Control Department ’ ’ of its Canal Street branch stating that ‘ ‘ It is extremely important to our customer, Southwestern Shipping Corporation * * * that you inform us immediately if Mr. Armand Anlyan’s signature on the attached letter is authentic.” By reply letter, defendant confirmed the authenticity of Anlyan’s signature and, according to the uncontradicted testimony of one of plaintiff’s officers, promised to credit plaintiff’s account Avhen the money arrived.

Plaintiff then advised Garmoja that defendant had authenticated the signature and ‘ ‘ further notified us that it Avill credit our account with the total amount of the remittance and, therefore, it is understood that Ave are indebted to you for the amount of $37,222.00.” Garmoja paid 23,310,000 lire (the equivalent of $37,222) to Crédito Lombardo for Corti’s account, and the latter requested Banca d’ltalia (the official bank of Italy which must pass upon all transfers of money) to transfer $37,222 by cable to defendant to be paid to Anlyan.

On October 16, 1951 defendant received a cable in Italian from the Bank of Italy instructing it to pay Anlyan $37,222. In translating the payment instructions in this cable, however, defendant’s officials did not understand it to be the credit ” referred to in Anlyan’s assignment to plaintiff. Accordingly, defendant, though admittedly aware that the cable presented a problem and that the funds referred to might be those to which the assignment related, nevertheless paid the money to Anlyan, and informed him that if these Avere the funds he had assigned to plaintiff, he could indorse the check and turn it over. Anlyan then absconded and, after defendant refused to pay plaintiff upon demand, plaintiff instituted this action to recover the sum.

The complaint alleged nine causes of action, sounding in money had and received, contract, and tort. The answer consisted of specific denials plus an affirmative defense alleging that each of the causes of action “ arose out of or is based upon ’ ’ a transaction which was illegal under the laws of Italy and hence 11 contrary to the public policy of the United States of America and the State of New York and unenforceable in the Courts of either.” In its charge, the trial court instructed the jury to completely disregard the affirmative defense, since it was “ purely a matter of law ”, and to consider only whether defendant had expressly or impliedly contracted with plaintiff to pay it the $37,222, and whether defendant negligently paid to a third party money which was due plaintiff.

The jury returned a verdict for plaintiff “ on the charge of breach of contract in the first instance and negligence on the part of the bank in the second ’ \ The trial court, in later setting asido the verdict on the basis of the affirmative defense, found: (1) that the agreement between G-armoja and Corti, as well as the Anlyan assignment, was illegal under Italian law, since the purchase, sale and transfer of foreign exchange was prohibited unless duly licensed by the Foreign Exchange Control Authorities of Italy; and (2) that plaintiff “was acting as agent for Garmoja in this transaction” and — by virtue of substantially common stock ownership and control—“was nothing more than an alter ego subsidiary for Garmoja ”, Accordingly, the court held that the suit was barred both by our common law and by article VIII (§ 2, subd. [b]) of the Bretton Woods International. Monetary Agreement (60 U. S. Stat. 1411; U. S. Code, tit. 22, § 286h). The Appellate Division unanimously affirmed, without opinion.

It is well settled in this State 1 £ that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose (Stone v. Freeman, 298 N. Y. 268, 271.) To this well-established principle of law, however, there is an equally well-established exception. If a party to an illegal transaction turns over money or property to a third person for the use of the other party to the transaction, the latter can enforce the express or implied promise or trust of the third party to turn over the money or property, notwithstanding the fact that he could not have enforced payment or delivery by the party who voluntarily made the payment or deposit. A mere agent or depository of the proceeds of an illegal transaction will not be permitted to assert the defense of illegality in an action to recover the proceeds by a party to the illegal transaction (Murray v. Vanderbilt, 39 Barb. 140, 152-153; Merritt v. Millard, 4 Keyes 208, 213-214; Woodworth v. Bennett, 43 N. Y. 273, 276; Leonard v. Poole, 114 N. Y. 371, 379; Sheary v. O’Brien, 75 App. Div. 121, affd. 184 N. Y. 544; Stone v. Freeman, 298 N. Y. 268, 271, supra; 1 Clark, New York Law of Contracts [1922], § 654; 6 Corbin, Contracts [1951], § 1531).

Assuming, then, the illegality of the Garmoja-Corti agreement and the Anlyan assignment under Italian law, and hence under article VIII (§ 2, subd. [b]) of the Bretton Woods International Monetary Agreement, and assuming further that plaintiff was the alter ego of Garmoja, the defendant, as a mere depository or transmittal agent of the proceeds of the arrangement, had no status to assert the illegality of those transactions.

The case of Stone v. Freeman (supra), relied upon by the trial court, is not authority to the contrary. There, a clothing jobber advanced money to a broker to be illegally used to bribe purchasing agents. Although we reversed a judgment for the jobber against the broker for the amount advanced, we were careful to note: we are passing on the precise question here involved, and no other. This is not a case where a mere agent or depository, receiving money for his principal, refuses to pay it over, on the ground that it was the fruit of an illegal contract between his principal and another (see Murray v. Vanderbilt, 39 Barb. 140, 152; Merritt v. Millard, 4 Keyes 208; Woodworth v. Bennett, 43 N. Y. 273, 276; and the reference to such a situation, by way of dictum, in Leonard v. Poole, supra, 114 N. Y. at p. 379).” (Page 271; emphasis supplied.)

In the instant case, defendant was merely a conduit through which dollars were to pass from one principal, C'orti, to plaintiff, as alter ego of the other principal, Garmoja. It had no beneficial interest in or claim to the $37,222, and its position was that of a depository into whose hands moneys were delivered for payment to another (see Sayer v. Wynkoop, 248 N. Y. 54, 57-60). Had Corti, after receiving lire from Garmoja, refused to transfer the dollar equivalent as agreed, it could not have been compelled by law to do so. Corti, however, elected to waive any defense of illegality by having the money transferred to defendant, and its agent, Anlyan, irrevocably assigned the sum to plaintiff.

Thereupon, as found by the jury, defendant promised to pay the money to plaintiff in accordance with the assignment, but by reason of its own negligence, and in breach of its agreement, paid to the wrong party. The law seems clear that defendant may not escape from its contractual liability and the consequences of its own negligence, by asserting the illegality of the antecedent agreement by reason of which it received the proceeds.

Defendant seeks to distinguish the controlling New York cases on three grounds: (1) the agent in those cases refused to pay the proceeds of the illegal transaction to its own principal; (2) the illegal transaction was completed, and (3) to have sustained the defense would have left the agent with a windfall. None of these alleged distinctions will withstand analysis. In all the relevant cases, the third party, who received the proceeds from one principal to the illegal transaction, was obligated to the other principal by virtue of a contract or trust, express or implied, to pay over the proceeds. The triers of the facts here found that defendant, after verifying the authenticity of the assignment, promised to transfer the proceeds to the account of its own depositor, plaintiff. This clearly bound defendant to transmit the funds to plaintiff and created a legally enf orcible obligation on its part to make such payment (Sayer v. Wynkoop, supra; see, also, Singer v. Yokohama Specie Bank, 293 N. Y. 542; Ehag Eisen. Holding AG. v. Banca Nat. a Romaniei, 306 N. Y. 242, 252).

As to the second claimed basis of distinction, the illegal transaction in the relevant cases was completed only in the sense that both principals had performed their part of the illegal bargain—as Garmoja did here by paying the lire and as Corti did by transmitting the dollar equivalent—and the fruits were in the hands of an agent or depository. In all the cases, as here, one of the principals was seeking to recover the proceeds from the agent or depository; however, this was regarded not as a suit to consummate the illegal bargain, but to enforce an independent promise or trust to pay over the proceeds.

The situation was quite different in Dewitt v. Brisbane (16 N. Y. 508) where one of the principals had defaulted and the assignee of the other principal was seeking to recover back funds advanced under the illegal contract. The Dewitt case, which was carefully distinguished the year following in Merritt v. Millard (5 Bosworth 645, 651-652 [N. Y. Superior Ct.], affd. by this court in 4 Keyes 208, supra) and also in Kellogg v. Adams (39 N. Y. 28, 32), was in the same category as Stone v. Freeman (supra).

Finally, by being permitted to successfully maintain the affirmative defense of illegality, defendant was enabled to avoid liability for the stated sum, which the jury verdict had fastened on it. Having been found liable for breach of contract and for negligence in the sum of $37,222, defendant, solely by virtue of the illegality of the antecedent agreement, to which it was not a party, has been allowed to escape the consequences of its own wrongdoing. This constitutes a windfall as surely as if defendant had kept the proceeds and refused to turn them over.

So far as the Bretton Woods Agreement is concerned, we are unable to see how it affects plaintiff’s right to maintain this action. The pertinent provision (art. VIII, § 2, subd. [b]; 60 U. S. Stat. 1411) recites: ‘ ‘ Exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member. ’ ’ While there is evidence that the applicable Italian foreign exchange regulations were ‘ ‘ maintained or imposed consistently with ’ ’ the Agreement, and while the quoted provision unquestionably prevents the courts of this State from enforcing illegal transactions in the field of international currency exchange, we do not see how this affects the New York common-law rule prohibiting an agent or depository from asserting a defense of illegality which the principals have elected to waive.

Plaintiff here is seeking to enforce a lawful promise of payment by a party unconnected with the antecedent illegal exchange agreement. This promise was made in New York, to be performed in New York, and its enforcibility is governed by New York law. The same is true of defendant’s negligence, which was committed in New York.

The Bretton Woods Agreement adds nothing to the already settled law of this State that a party to an illegal agreement cannot enforce it against the other party. By forbidding any court in the United States from enforcing a foreign exchange contract which violates the exchange regulations of a foreign signatory to the agreement, it prevents a local court from refusing to give effect to the foreign law of a member on the ground that it is contrary to the public policy of the forum (see Perutz v. Bohemian Discount Bank in Liquidation, 304 N. Y. 533, 537), or because the foreign law provides only penal sanctions for its violation — as was the case with the Italian exchange regulations involved here — and hence should not be given extraterritorial effect (see Loucks v. Standard Oil Co., 224 N. Y. 99,102-103). In our opinion, it in no way affects the common-law rule of this State that a depository of the proceeds of an illegal transaction cannot plead the illegality of the transaction as a bar to suit against it for breach of contract and negligence.

Accordingly, the judgment appealed from should be reversed and the verdict of the jury reinstated, with costs in this court and in the Appellate Division.

Desmond, J. (dissenting).

I would affirm. We are agreed that the Garmoja-Corti-Anlyan-Southwestern transaction was illegal. It has been settled in this State for more than a century, beginning with Gray v. Hook (4 N. Y. 449) and the other old cases cited in Dewitt v. Brisbane (16 N. Y. 508) and continuing down through Stone v. Freeman (298 N. Y. 268) and Carr v. Hoy (2 N Y 2d 185), that our courts will under no circumstances lend their aid to the enforcement of an illegal deal. “Nor is the right to take this objection confined to the parties to the illegal transaction. A third person, whose obligation, valid in its inception, and against which, in the hands of a legal holder, he could have no available defence, may defend himself on the ground of the illegality of the transaction through which the plaintiff derives title ” (Dewitt v. Brisbane, 16 N. Y. 508, 513, supra). An exception to or nonapplicability of this rule has been declared in decisions like Murray v. Vanderbilt (39 Barb. 140), Merritt v. Millard (4 Keyes 208) and Leonard v. Poole (114 N. Y. 371, 378, 379) where the illegal transactions had been fully completed but one who was a mere repository for one of the parties had then refused to turn over the money or property. The present is not such a case since judgment for the plaintiff here would in effect compel the taking of the final step in the transaction itself — a step without which the transaction would be meaningless — that is, the assignment to plaintiff. There is, therefore, no ground for bringing this present case within the narrow Murray-Vanderbilt exception and so the decision below was right. It has been so often repeated in the cases that it need not be said again that this defense of illegality “ ‘ is allowed not as a protection to a defendant, but as a disability to the plaintiff ’ ” (Carr v. Hoy, 2 N Y 2d 185, 188, supra, and cases therein cited). There are plenty of controlling cases which say that the “repository” exception does not apply when the whole thing is one single transaction (see, for instance, Sayres v. Decker Automobile Co., 239 N. Y. 73, 77). Surely, we should not be quick to extend such an exception and defeat a good old rule.

Although the point is not made in these terms, it would seem that this defendant, had it learned the purpose for which this assignment was made, could have refused to recognize that document and could have stood on its right not to aid in carrying out an essentially illegal transaction. That being so, its position is not made worse by the fact that by error or negligence it paid out the money to the assignor instead of holding it for the assignee and thus rounding out the whole forbidden transaction.

Chief Judge Conway and Judges Fuld, Van Voobhis and Burke concur with Judge Fboessel ; Judge Desmond dissents in an opinion in which Judge Dye concurs.

Judgment reversed and verdict of the jury reinstated, with costs in all courts.


author: Chief Judge Conway.

text:
    Aronette Manufacturing Co., Inc., Respondent, v. Capitol Piece Dye Works, Inc., Appellant, et al., Defendant.
    Argued April 6, 1959;
    decided July 8, 1959.

      Maurice Leffert for appellant.
    I. A judgment for plaintiff must be supported by evidence establishing the material allegations of the complaint and cannot be based on speculation or surmise. (Baulec v. New York & H. R. R. Co., 59 N. Y. 356; Pollock v. Pollock, 71 N. Y. 137; Bond v. Smith, 113 N. Y. 378.) II. Inferences drawn must be based on proven facts and may not be based on speculation, conjecture and surmise. (Meagley v. Hoyt, 125 N. Y. 771.)

      Charles Feit and Frederick E. M. Ballon for respondent.
    I. The judgment is amply supported by the evidence. (Dowling v. Hastings, 211 N. Y. 199; Fidelity & Guar. Ins. Corp. v. Ballon, 280 App. Div. 373; Markel v. Spencer, 2 A D 2d 400; Vallee v. Vallee, 154 Misc. 620, 247 App. Div. 874; Potomac Ins. Co. v. Donovan, 274 App. Div. 666; Gerdau Co. v. Bowne-Morton Stores, 1 A D 2d 581, 2 N Y 2d 905.) II. Appellant by its repeated representations that the odor Avould disappear became liable to respondent for damages under the doctrine of negligent words. (Glanzer v. Shepard, 233 N. Y. 236; International Prods. Co. v. Erie R. R. Co., 244 N. Y. 331; Doyle v. Chatham & Phenix Nat. Bank, 253 N. Y. 369.)
   Chief Judge Conway.

Aronette Manufacturing Company, the plaintiff-respondent, is a manufacturer of raincoats. In December, 1950 Aronette agreed to purchase textiles from Burlington Mills Avhich textiles were already treated to be “ crease resistant ” but not made water repellant. Burlington Mills agreed to send the goods for plaintiff to appellant Capitol Piece Dye Works, a waterproofer of textiles, to make the goods Avater repellant Avith a 1 £ Zelan ’ ’ process and then ship them to Aronette. The president of Aronette, who was apprehensive of purchasing “ crease resistant” goods and then having them made water repellant at a separate factory, insisted on having sample pieces sent through before he would confirm the order. Accordingly, three pieces were so treated by Capitol, who sent them to Aronette where they were tested and found odor free and satisfactory. These pieces were cut and made into sample raincoats which were employed for sales purposes. Then, Aronette confirmed the whole order which was sent to Capitol to be processed. It was then forwarded to Aronette. Shortly after arrival, while the goods were being fabricated into raincoats, a strong fishy odor arose in Aronette’s plant. It was quickly traced to the goods. Aronette wrote Capitol complaining that “ this odor is so bad that we cannot continue cutting any of these goods.” Capitol replied, through its president, that there was an odor present in the goods even before they were processed but that “ when air and cold moisture hits them, the smell disappears ’ ’, and that £ £ Every piece of goods having Zelan applied has a certain amount of odor which eventually disappears.” But the odor continued and even increased. Plaintiff advised Capitol of this fact by letter only to receive more assurances that the odor would pass and that if you pick out the above pieces [11 of them] and put them aside, you won’t have any trouble when the garments are made up.” More complaints only resulted in more assurances until Capitol suggested a firm which was in the business of removing odors from garments and, then, finally denied responsibility in a letter addressed to plaintiff’s attorney. In the meantime, raincoats made out of the goods were being refused and sent back by plaintiff’s customers because of the odor. Burlington Mills also denied responsibility and suggested that Aronette resolve the matter with Capitol.

Aronette commenced an action against Capitol in January, 1952 charging that Capitol breached its responsibility to render the goods properly water repellant by imparting to them a strong fishy odor to plaintiff’s damage. Subsequently, plaintiff joined Burlington Mills as a party defendant alleging a breach of warranties of fitness and of merchantable quality. The trial was held before the court sitting without a jury. Both defendants moved to dismiss at the end of the plaintiff’s case on the ground that plaintiff had failed to establish a prima facie case. The court reserved decision, whereupon both defendants rested without putting in any proof and renewed their motions to dismiss.

It is apparent from the record that plaintiff, burdened with odoriferous, inferior merchandise but not knowing with particularity what had occurred in either of defendants’ factories, could not be certain as to which of the defendants was responsible. Furthermore, both defendants’ declination to put in any proof maintained this uncertainty. The trial court resolved the dilemma by finding that the evidence was sufficient to show that the fishy smell was caused by improper processing in the application of the Zelan finish, in that there was no claim that the fabric, outside of 12 pieces, had any odor when sent to Capitol for processing. In addition, the court found that plaintiff had not sustained its burden against Burlington. The Appellate Division affirmed without opinion, with one of the Justices dissenting without opinion.

Defendant Capitol argues in our court that the judgment is based on speculation, conjecture and surmise. It points out further that plaintiff’s expert witness was unable to point unequivocally to appellant’s waterproofing process as the cause of the odor. Respondent, in turn, argues that it did make out a prima facie case to prove that there was an improper application of the Zelan process.

There is no question that the goods belonged to Aronette and were sent to Capitol to have work performed upon them for a consideration. That constituted, at common law, a bailment locatio operis faciendi — a form of bailment for mutual benefit. (See Foster v. Pettibone, 7 N. Y. 433; Mallory v. Willis, 4 N. Y. 76; Douglass v. Hart, 103 Conn. 685; Ann. 44 A. L. R. 824; Bouvier’s Law Dictionary [Rowle’s 3d Rev.], Vol. 1, pp. 313, 316.) Since it was a bailment for mutual benefit, the bailee was obliged, in the absence of an express agreement to the contrary, to exercise ordinary care in relation to the article bailed (Klar v. H & M Parcel Room, 270 App. Div. 538, 541, affd. 296 N. Y. 1044). In our case, the duty becomes a responsibility to perform ordinarily skillful work on the goods and to render the goods, insofar as they áre capable, reasonably fit for the purpose intended (Douglass v. Hart, supra). Thus, -there is no question that Capitol, on the basis of the record, was obliged to do a workmanlike job. There is also no question but that the goods were damaged by poor, unworkmanlike processing by Capitol and/or Burlington Mills. It is also a well-settled rule in the law of bailments, in which the bailee is to perform services upon the goods, that if the bailor can prove the condition of the goods when delivered, the nature of the subsequent injuries and that they were not the result of ordinary wear and tear, the burden of going forward with the evidence is shifted to the bailee who had the goods exclusively under his control and who should be able to show the manner in which he discharged his contract obligations (Wintringham v. Hayes, 144 N. Y. 1, 5-6; see, also, Stewart v. Stone, 127 N. Y. 500; Collins v. Bennett, 46 N. Y. 490, 493, 494; Richardson, Evidence [3d ed., 1955], § 109). It is cases such as the present one which demonstrate the need for such a rule. The goods were in the exclusive possession of Capitol who put in no evidence to explain its services, precautions and methods of processing. However, before any such presumption may be indulged in, it must be shown that the material was in good condition when it arrived at Capitol’s place of business. (See, e.g., Gerdau Co. v. Browne-Morton Stores, 1 A D 2d 581, affd. 2 N Y 2d 905.)

The record discloses that Capitol’s president admitted that those samples of the goods which he claimed had an odor on arrival at his place of business, had a not-fishy ” odor. In one of its letters to Aronette, Capitol implied that those pieces which it did not set forth as having an odor on arrival at Capitol were in good condition. In addition, the test pieces which plaintiff sent through before confirming the order did not develop the “ fishy ” odor. Thus it was established that a workmanlike job would not result in such an odor and also that the goods when crease resistant ” were amenable to successful waterproofing. Furthermore, the expert for plaintiff, though he would not specify which of the two processes had caused the odor, did testify that it was caused by the improper application of one of them. Hence, there was sufficient evidence to support the inference (particularly from the fact that no “ fishy ” odor was present on arrival of the goods at Capitol’s plant) that the damage occurred during the period of the bailment locatio operis faciendi and that appellant did not discharge properly the obligations of the bailment. ■ Moreover, appellant has declined to rebut this inference, which has survived, in order to pose a valid question of fact for the trial court. Therefore, we cannot say, as a matter of law, that the evidence was insufficient to support the decision and judgment for the plaintiff. There is no need to pass upon the other questions argued in this court as to alternate theories of liability.

Accordingly, the judgment of the Appellate Division should be affirmed, with costs.

Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke concur.

Judgment affirmed.


author: Desmond, J. Chief Judge Conway (dissenting).

text:
    Anthony Lo Casto, Individually and as Guardian ad Litem of Vincent Lo Casto, an Infant, Appellants, v. Long Island Rail Road Company, Respondent.
    Argued May 19, 1959;
    decided July 8, 1959.

      Peter J. Reilly, Marvin N. Rosen and Michael R. Di Tomasso for appellants.
    I. Defendant committed an act of affirmative negligence. (Ansteth v. Buffalo Ry. Co., 145 N. Y. 210; Ralff v. Long Is. R. R. Co., 266 App. Div. 794, 292 N. Y. 656; Van Houten v. New York, N. H. & H. R. R. Co., 286 App. Div. 875, 2 N Y 2d 739.) II. The tender age and dangerous position of the infant required greater care on the part of defendant and imposed a greater duty upon it. (O’Mara v. Hudson Riv. R. R. Co., 38 N. Y. 445; Byrne v. New York Cent. & H. R. R. R. Co., 83 N. Y. 620; Neuberger v. Long Is. R. R. Co., 131 App. Div. 885.) III. The Appellate Division’s opinion cites cases which are clearly distinguishable. (Nilsen v. Long Is. R. R. Co., 268 App. Div. 782, 295 N. Y. 721; Carbone v. Mackchil Realty Corp., 296 N. Y. 154; Scholl v. New York Cent. R. R. Co., 2 A D 2d 989, 3 N Y 2d 989.) IV. The trial court erred in refusing to charge the last clear chance doctrine. (Feldman v. New York Cent. & H. R. R. R. Co., 142 App. Div. 339, 205 N. Y. 533; Johnson v. Interborough R. T. Co., 192 App. Div. 639.)

      William F. McNulty and William J: O’Brien for respondent.
    I. The complaint herein was properly dismissed by the Appellate Division. (Ralff v. Long Is. R. R. Co., 266 App. Div. 794, 292 N. Y. 656; Van Houten v. New York, N. H. & H. R. R. Co., 286 App. Div. 875, 2 N Y 2d 739; Carbone v. Mackchil Realty Corp., 296 N. Y. 154; Ansteth v. Buffalo Ry. Co., 145 N. Y. 210; Prenderville v. Coney Is. & B. R. R. Co., 131 App. Div. 303; Luter v. Union Ry. Co., 84 Misc. 46; Osalek v. Baltimore & O. R. R. Co., 295 Penn. St. 553; Morse v. Buffalo Tank Corp., 280 N. Y. 110; Mendelowitz v. Neisner, 258 N. Y. 181; Walsh v. Fitchburg R. R. Co., 145 N. Y. 301; Caldwell v. Village of Island-Park, 304 N. Y. 268; Nilsen v. Long Is. R. R. Co., 268 App. Div. 782, 295 M. Y. 721; Van Houten v. Long Is. R. R. Co., 279 App. Div. 1099, 304 N. Y. 990; Scholl v. New York Cent. R. R. Co., 2 A D 2d 989, 3 N Y 2d 989.) II. The Trial Justice properly declined to charge the jury with respect to the doctrine of the last clear chance, which clearly has no application in the case at bar. (Woloszynowski v. New York Cent. R. R. Co., 254 N. Y. 206; Keller v. Erie R. R. Co., 183 N. Y. 67; Gleason v. Central New England Ry. Co., 261 N. Y. 333; Carbone v. Mackchil Realty Corp., 296 N. Y. 154; Ward v. F. R. A. Operating Corp., 265 N. Y. 303; Meyer v. Whisnant, 307 N. Y. 369; Rowlands v.
      Parks, 2 N Y 2d 64; Feldman v. New York Cent. & H. R. R. R. Co., 142 App. Div. 339, 205 N. Y. 533; Johnson v. Interborough R. T. Co., 192 App. Div. 639.)
   Desmond, J.

This negligence action was brought because of the injuries suffered by the infant plaintiff Vincent Lo Casto, who at the time of the accident was six years old. The trial resulted in jury verdicts for Vincent and his father. However, the Appellate Division unanimously reversed the judgment for plaintiffs on the law although affirming the facts. The Appellate Division’s memo, after stating that the findings of fact were affirmed, went on to say: ‘1 The infant was a trespasser who was injured when he slipped and fell from a moving freight car. There was no affirmative act of negligence on the part of the appellant which caused the injury ”. The rest of the brief Appellate Division statement consisted of citations to several decisions to which we will refer later in this opinion. One of them was Ralff v. Long Is. R. R. Co. (266 App. Div. 794, affd. 292 N. Y. 656). In the Ralff case, as here, the Appellate Division, after a verdict for the infant plaintiff, reversed on the law alone and dismissed the complaint. The Ralff facts were almost identical with" the present ones. The only difference suggested by plaintiffs’ counsel is that in the present case the infant plaintiff heard and saw defendant’s employee shouting to plaintiff to 1‘ get off ’ ’ the car while in the Ralff case the plaintiff testified that he did not see the flagman but merely heard him shouting to ‘1 get off ’ ’. That could not make any difference in the result. The theory of the Ralff dismissal as expressed in the Appellate Division opinion in that case was: 11 The infant was a trespasser to whom the defendant owed no duty other than to refrain from affirmative acts of negligence, or from willfully and intentionally injuring him. The mere calling to a trespassing boy to get off, unaccompanied by violence or any overt act showing an intention to use force, does not constitute affirmative or willful negligence ” (266 App. Div. 794, supra). The Appellate Division opinion in Ralff cited Ansteth v. Buffalo Ry. Co. (145 N. Y. 210) where the same rule was stated by this court but a judgment for plaintiff Ansteth was affirmed on the ground that the act of the conductor in coming on to the car platform with the boy and reaching for the boy “ was of such a nature as to justify the plaintiff in believing that he was about to receive punishment or bodily injury.” That element was not in the present case since testimony for the plaintiff was that the man who shouted to him was ‘ far back ’ ’ on the train. Other evidence hereafter referred to leaves it undisputed that the man who shouted to our plaintiff was several cars away from the latter.

This accident occurred on the afternoon of July 30,1951 in the large (two or three blocks long) Johnson Avenue Team Yard of defendant Long Island Rail Road Company in Brooklyn. Through an open gateway this infant plaintiff Vincent Lo Casto and his seven-year-old brother Salvatore and another boy came into the yard from Bushwick Place. The boys lived nearby and had played in this railroad yard on a few other occasions. After walking into the yard for a distance that Vincent estimated as two blocks, and being stopped by no one, the boys came to a long train consisting of about eight cars and an engine. The three, children' then climbed onto ladders which were on the end and side of one of the boxcars in the middle of the train. The train then started to move in the direction of the Bushwick Place entrance. Plaintiff heard a man yell ‘ Get off, get off the train ’ and saw the man running toward him from another point on the train. It is clear from the record that the railroad employee who shouted to the boys was hanging onto the end car of the train three or four cars away from where the boys were. The sequence of events as testified to by both plaintiff Vincent Lo Casto and his brother Salvatore Lo Casto was: they climbed on the ladder, the train began to move, a man three or four cars away yelled “ Get off, get off the train ” and began to run toward them, and Vincent got scared ” and fell or slipped off the ladder and his foot went under a car wheel causing severe injuries. Plaintiffs put into evidence the deposition of a railroad employee named Parrott who was working that day on the head car next to the engine of this train and who said that he had seen children in the yard that day and every day. He testified that the first time he saw plaintiff Vincent Lo Casto the latter was crawling under cars but that he (Parrott) said nothing at that time to the boy and did not see the boy again until after the accident. This witness said that he saw no policemen around the yard that day and that there were no watchmen at the Bushwick Place entrance except one man who covered that and another nearby location. Another railroad employee (Crockett) testified in a deposition put in by plaintiff that he had seen children playing around these cars for 5 or 10 minutes before the accident and that he chased some of them. Crockett’s testimony left it unclear as to whether he was the man who shouted at the child.

Defendant put in some proof, which is not material to the question of the propriety of the dismissal of the complaint, as to a number of railroad policemen operating in this and another yard, as to this infant plaintiff having been warned two months before this accident to keep away from the yard because of the danger, and of this plaintiff having been taken home by railroad policemen and warned in the presence of his parents. The young plaintiff was asked about this warning and said that he did not remember it. Neither his father nor his mother was called to the stand to deny it.

The controlling law was restated in Carbone v. Mackchil Realty Corp. (296 N. Y. 154, 158) as follows: “ ‘ Toward mere trespassers or bare licensees the rule is well settled that the only duty owing to them by the owner or occupier of land is to abstain from inflicting intentional, wanton or wilful injuries unless he maintains some hidden engine of destruction ’ ’ ’. The Carbone opinion cites many other holdings and the existence of the rule is not really disputed.

A more recent case applying identical facts was Van Houten v. New York, N. H. & H. R. R. Co. (2 N Y 2d 739). The testimony there was that the boy and another companion were atop a freight car; two men on the ground yelled 1 Get off ’ ’ and one waved a hand or fist; the boys ran along the top of two or three cars, then crawled along the top of one car under a bridge; then the train began to move and one of the boys was caused to fall and to come into contact with a high-voltage wire. The holding of that case was that, even assuming that the men who shouted were railroad employees, their actions could not be said to violate the duty owed to a trespasser under these circumstances so as to make their employer respond in damages. Their acts could be viewed as the reasonable and proper action to be taken by them under these circumstances. The Van Houten boy had brought an earlier action against the Long Island Rail Road Company on the same facts. A trial court dismissal of that earlier suit was affirmed by the Appellate Division (279 App. Div. 1099) and we denied leave to appeal (304 N. Y. 990). In Scholl v. New York Cent. R. R. Co. (3 N Y 2d 989) the same rule was again applied on somewhat different facts.

Plaintiffs’ counsel asked the court to charge that these plaintiffs might recover under the theory or doctrine of ‘1 last clear chance ’ ’. The court declined and there was marked in evidence and handed up to us on the argument a handwritten copy of what plaintiffs wished the court to charge in this connection. That rule had no application to these facts since the finding below was, and the law of the cases is, that defendant’s employees did what was reasonably necessary to avoid injury to plaintiff.

The judgment appealed from should be affirmed, without costs.

Chief Judge Conway (dissenting).

We agree that the infant plaintiff having entered upon the defendant’s premises without invitation was a trespasser and that the defendant had no affirmative duty to make the place safe for him. However, there is also the rule enunciated in Ansteth v. Buffalo Ry. Co. (145 N. Y. 210) that the defendant railway’s servants upon discovering the trespasser may not willfully, improperly and unnecessarily act toward him so as to cause him injury. Thus, despite this child’s status as a trespasser, it is apparent that defendant had no privilege to commit affirmative wrongful acts toward him as an individual.

The accident occurred in the large (two or three blocks long) Johnson Avenue Yard of defendant. Through an open gateway, with no one in attendance, the infant plaintiff, six years of age, his seven-year-old brother Salvatore, and a third boy came into the yard from Bushwick Place. The boys lived nearby. After walking into the yard for a distance of two blocks and being stopped by no one, these three children reached a long train with an engine and about eight cars. They climbed upon ladders on one of the boxcars in the middle of the train. One of the employees of the defendant had been working that day on the head car next to the engine. He said he had seen children in the yard earlier that same day and had seen children playing in the yard every day. He said that the first time he saw the plaintiff Vincent, the latter was crawling under cars but that he said nothing at that time to this six-year-old boy. That employee said that he saw no company policeman around the yard that day and that there was no watchman at the Bushwick Place entrance, except that there was a watchman who covered that and another nearby location.

In our evaluation of the facts, we must remember that each case in this area of the law depends upon its peculiar circumstances and that negligence is relative to time, place and circumstance. Our court said in Sadowski v. Long Is. R. R. Co. (292 N. Y. 448, 455): “ Essentially, what is negligence in a given case is a question of fact. Each case depends upon its own peculiar circumstances. Decisions in other actions in which damages are sought for personal injuries furnish no criterion or guide for determination of what is or is not negligence in a particular case involving its own peculiar facts and circumstances. Under circumstances existing in one case the ordinary care required might not be the same as that required under other circumstances. Negligence arises from breach of duty and is relative to time, place and circumstance ’ ’. The circumstances of this case disclose a six-year-old child clinging for dear life to a ladder on the side of a moving freight car. Defendant’s employee yelled an order to the child to get off, a feat which would be dangerous to an inexperienced adult let alone a six-year-old child. In addition, the plaintiff testified that he saw the man who shouted the order running toward him, apparently to implement his directive that the child perform the dangerous operation. The infant got scared” and fell or slipped off the ladder with his foot going under the wheel. If the employee, a grown man possessing the air of authority which adults generally have over small children particularly when they are discovered in danger, had made the child climb upon a dangerous obstacle, or walk a dangerous path without assistance, no one would dispute that such acts would constitute willful, affirmative negligence. Here is essentially the same wrong—a terse, shouted command to leave a moving freight car with emphasis supplied by running toward the subject of the order. Part of the functions of the railroad men involved was to signal the engineer to stop and start the train in their occupation of switching and forming lines of freight cars. They could easily have signalled a halt rather than frightening the child into falling from a moving freight train. This is to be distinguished from Van Houten v. New York, N. H. & H. R. R. Co. (286 App. Div. 875, affd. 2 N Y 2d 739) where the men shouted at the boys to get off the freight car while it was standing still and the boys persisted in running along the top of the train. Nor is this a case like Ralff v. Long Is. R. R. Co. (266 App. Div. 794, affd. 292 N. Y. 656) where the flagman who was two or three cars away merely shouted at the injured boy and where the boy did not even see the flagman. Instead the instant case is one where the defendant’s employee, by word and deed, affirmatively frightened a six-year-old child into falling or slipping from a moving freight train, thus causing grave injury to the child. After giving the plaintiff, as we must, the benefit of every reasonable inference which may be drawn from the evidence (see Stein v. Palisi, 308 N. Y. 293; Sagorsky v. Malyon, 307 N. Y. 584), we are of the view that there was sufficient evidence to make out a case of willful negligence against the defendant. Accordingly, the judgment of the Appellate Division should be reversed and the judgment of the Supreme Court, Trial Term, should be reinstated, with costs.

Judges Dye, Fuld, Van Voorhis and Burke concur with Judge Desmond; Chief Judge Conway dissents in an opinion in which Judge Froessel concurs.

Judgment affirmed.