author: Chief Judge Desmond. Dye, J. (dissenting). Van Voorhis, J. (dissenting).

text:
    W. R. Grace & Co., Respondent, v. Railway Express Agency, Inc., Appellant.
    Argued April 26, 1960;
    decided June 9, 1960.

      James V. Lione for appellant.
    I. Plaintiff is bound by the terms and conditions of the express receipt. (Adams Express Co. v. Croninger, 226 U. S. 491; Peyton v. Railway Express

      Agency, 316 U. S. 350; American Ry. Express Co. v. Lindenburg, 260 U. S. 584; Cincinnati & Tex. Pac. Ry. v. Rankin, 241 U. S. 319; American Ry. Express Co. v. Daniel, 269 U. S. 40; Southeastern Express Co. v. Pastime Co., 299 U. S. 28; Missouri, Kans. & Tex. Ry. v. Harriman, 227 U. S. 657; Greenwald v. Barrett, 199 N. Y. 170; Burke v. Union Pacific R. R. Co., 226 N. Y. 534, 255 U. S. 317; D’Utassy v. Barrett, 219 N. Y. 420). II. Plaintiff is estopped from recovering a greater sum than $50. (American Ry. Express Co. v. Daniel, 269 U. S. 40; Kansas Southern Ry. v. Carl, 227 U. S. 639; American Ry. Express Co. v. American Trust Co., 47 F. 2d 16; New York & Honduras Rosario Min. Co. v. Riddle Airlines, 3 A D 2d 457, 4 N Y 2d 755.) III. The uniform express receipt issued was the lawful and proper receipt. (Pennsylvania R. R. Co. v. International Coal Co., 230 U. S. 184; Great Northern Ry. Co. v. O’Connor, 232 U. S. 508.) IV. Defendant had no knowledge of the actual value and contents of the shipment. (Siebert v. Erie R. R. Co., 189 App. Div. 586, 232 N. Y. 517,)

      Emmet L. Holbrook and Joseph Haskell for respondent.
    I. Defendant is liable for $56,117.72, with interest, under its applicable official money classification and rates. (Hoye v. Pennsylvania R. R. Co., 191 N. Y. 101; Park v. Preston, 108 N. Y. 434; New York & Honduras Rosario Min. Co. v. Riddle Airlines, 3 A D 2d 457, 4 N Y 2d 755; Rentways v. O’Neill Milk & Cream Co., 308 N. Y. 342; American Ry. Express Co. v. Lindenhurg, 260 U. S. 584; Burke v. Union Pacific R. R. Co., 226 N. Y. 534, 255 U. S. 317; Missouri, Kans. & Tex. Ry. v. Harriman, 227 U. S. 657; Kansas Southern Ry. v. Carl, 227 U. S. 639; Adams Express Co. v. Croninger, 226 U. S. 491; Barstow v. New York, N. H. & H. R. R. Co., 158 App. Div. 665; United Lead Co. v. Lehigh Val. R. R. Co., 156 App. Div. 525, 215 N. Y. 751; Feynman v. American Ry. Express Co., 134 Misc. 223; Perkel v. Pennsylvania R. R. Co., 148 Misc. 284.) II. Defendant did not establish a valid contractual limitation of liability to $50. (Perkel v. Pennsylvania R. R. Co., 148 Misc. 284; Railway Express Agency v. Atlantic & Pacific Wire & Cable Co., 11 Misc 2d 511; Pennsylvania R. R. Co. v. Titus, 216 N. Y. 17; Kansas Southern Ry. v. Carl, 227 U. S. 639; Elgart & Sons v. Peoples Express Co., 11 Misc 2d 499; American Ry. Express Co. v. Lindenhurg, 260 U. S. 584.)
   Chief Judge Desmond.

The suit is against Railway Express Agency, Inc., for the value of a quantity of platinum which disappeared after being entrusted to the Express Agency for interstate transportation. Plaintiff’s recovery was limited by the trial court to $50 because plaintiff’s agent had declared a $50 value to defendant at the time of shipment and had not paid the much higher express rate that would have been due pursuant to defendant’s tariffs had the value of the platinum (about $56,000) been correctly declared to defendant. The Appelate Division modified and ordered judgment for plaintiff for the full value less the balance of transportation charges due at the higher rate for higher value. We affirm that judgment. Although the shipper had .declared a $50 value only, the carrier’s agent was at the time of acceptance of the shipment told that the package contained platinum and wrote platinum ” on the receipt. Defendant’s tariffs required that precious metals such as platinum be received and carried under what is called the money classification ’’and not under the “ merchandise classification All shipments of merchandise subject to the money classification ” were, according to the tariff, required to be charged for at the so-called " gold coin rates ’ ’ without any choice of rates dependent on value. The Appellate Division opinion cited the settled rules that unless a shipper be given a choice of rates an interstate carrier cannot limit its liability to less than the true value, that a carrier cannot charge or receive a rate different from that specified in its currently effective tariff, and that it is the regulatory scheme of the Interstate Commerce Act (U. S. Code, tit. 49, § 1 et seq.) which governs, not the common law. It is undisputed that the carrier here knew that it was accepting a shipment of platinum. From that fact it followed that defendant was bound to charge the shipper the full tariff rate for a precious metal and that the statement of a lower value wias ineffective for limiting liability (New York & Honduras Rosario Min. Co. v. Riddle Airlines, 3 A D 2d 457, affd. 4 N Y 2d 755).

Defendant’s tariff quite clearly says and means that platinum is to be shipped only under the “ money classification ” and at the rate charged for shipments of gold coin. Thus, this shipper had no choice between a lower rate for lower declared value, and a high rate for full value. Two years ago we passed on these identical questions of law in New York & Honduras Rosario Min. Co. v. Riddle Airlines (4 N Y 2d 755, supra). In Rosario, plaintiff mining company had shipped gold and silver bullion on two airlines called TAN and Biddle Airlines, from Honduras to the United States. TAN carried the package to Miami, then Biddle picked it up and took it to New Jersey. The original airway bill of lading issued by TAN provided that the shipper was required to accept the tariffs, classifications and rates of both carriers. TAN’s tariffs permitted the carriage of bullion at reduced rates at a nominal declared valuation of $100 but there was no such reduced rate or limitation of liability available in Biddle’s tariffs. Some of the bullion was lost while in the custody of Biddle. The courts held Biddle liable on the ground that while Biddle’s tariffs allowed it to limit liability with respect to cargo generally, there was an entirely different provision as to this bullion as to which actual value was required to be declared and as to which freight charges had to be paid on weight and actual value. In Rosario, as here, the shipper declared a nominal value and paid freight thereon instead of declaring actual value and paying rates based thereon. There was no enforcible limitation of liability and the carriage agreement was treated as if the bullion had been declared at actual value. The facts of the present case bring it directly within the Rosario decision and of many older State and Federal holdings’ (see, for instance, Burke v. Union Pacific R. R. Co., 226 N. Y. 534, 543, affd. 255 U. S. 317; Emily Shops v. Inter-State Truck Line, 2 N Y 2d 405).

The facts here are undisputed and nothing in them absolves defendant from full liability. This platinum weighing about 50 pounds and 'belonging to plaintiff was received by defendant’s driver at a safe deposit vault of a New York City bank from two men representing a company known as Colamer, acting for plaintiff in the transaction. When defendant’s driver received it, the platinum was in a box completely wrapped, covered with sealing tape, bound with wire strappings, all sealed up. On the package there were shipping tags showing that it was destined for a consignee in Pennsylvania. There was nothing on the package to show the nature of the contents or their value and the driver was not at any time told the actual value. However, he was told on receipt of the package that it contained platinum and he wrote “ platinum ” on the receipt which he gave to the Colamer representatives. This receipt was in the ordinary merchandise form and was not the form of receipt which defendant used on acceptance of gold coin and precious metals. The driver did not have in his possession any of the latter type of receipt. He asked the Colamer representatives whether they wished to declare a value and they replied ‘ $50 ’ whereupon the driver collected $2.90, the ordinary freight rate for ordinary merchandise of a declared value of $50. The Colamer representatives knew that the actual value was some $56,000.

The rate for precious metals for the distance here travelled was $130.93 instead of the $2.90 actually charged. Although the only value declared to the driver was $50, he entered the shipment in a so-called value book ” carried by him in which there are entered records of shipments with declared value of $50 or more per pound. When he arrived at defendant’s freight depot in Long Island City he turned the package over to another representative of defendant who told the driver that this was not a ‘ ‘ value shipment ’ ’ because only $50 was declared. But the other man was then told by the driver that the box contained platinum and the package was put into the so-called “ value room ” where precious metals, etc., are kept. The express company’s rules required that a shipment of precious metals not only be put into the value room” but that it be handled under armed guard. The latter precaution was not carried out as to this shipment. However, as it seems to us, the question is not whether the express company treated this as a valued shipment of precious metals. The applicable law plainly states that neither the character of service nor the rates could validly be changed from those expressed in the tariffs.

The arguments of defendants are based on the express receipt’s stated limitation to $50, on defendant’s lack of knowledge of the actual value, and on the statement of plaintiff’s agent at the time of shipment that plaintiff had its own “ outside insurance ’ ’. All these arguments are answered by the Rosario decision (supra).

The judgment appealed from should be affirmed, with costs.

Dye, J. (dissenting).

I dissent and vote to reverse and to grant a new trial upon the ground that the shipper was bound by the terms and conditions of the uniform express receipt which it had accepted. The shipper, ‘ ‘ because it had its own insurance ”, had declared the shipment was valued at $50,

The Interstate Commerce Act condemns discrimination in rates and the giving of preferences to any shipper (U. S. Code, tit. 49, §§ 2, 3, snhd. [1]). Subdivision (11) of section 20, enacted as a part of the statutory scheme to curb such sharp practices, makes carriers liable for actual losses sustained, subject to exceptions authorized in writing by the Interstate Commerce Commission. Because the currently effective tariff schedules did not allow a choice of rates to be given with respect to shipments of crude platinum, the majority are now holding that the carrier must bear liability for the full value of the shipment.

Railway Express Agency, Inc., had no knowledge of the actual value of this shipment; it had knowledge only of the value stated by the shipper’s agent. Mistakenly, it relied upon the value declared. Indeed, for all it knew, the value did not exceed $50. For the delivery of crude platinum, the shipper was thus able to obtain a rate based on a merchandise classification, thereby realizing a saving of $128.03.

No one would contend that the statute creates responsibility for the actual value of loss where the carrier has been deceived as to the contents of a shipment. The entire act opposes any such concept of liability. In the present ease, which essentially is not very different, there is no doubt of the carrier’s obvious good faith in receiving the package and in charging a rate commensurate with the value as represented. There was no intent to circumvent the clear requirements of the Interstate Commerce Act. The case of New York & Honduras Rosario Min. Co. v. Riddle Airlines (3 A D 2d 457, affd. 4 N Y 2d 755) is, therefore, not persuasive, for there the shipment was knowingly and willfully made in violation of the published tariff rate; the carrier knew the actual value of the shipment," yet deliberately undertook to carry it for less than the applicable rate.

Holding a carrier strictly accountable for the actual loss, on such a showing as this, opens wide the door to unconscionable practices, and does nothing to serve the useful and sound public policy expressed by the Interstate Commerce Act.

Van Voorhis, J. (dissenting).

I concur in the dissent of Judge Dye. This shipment was required to be rejected under the filed tariffs ‘ unless the actual or market value is declared by shipper and marked by him' upon the package. ’ ’ Fifty dollars was marked on the package.. Oral notice to the truckman that it might be worth more than this was not effective notice to the carrier, the truckman was not charged with that amount of responsibility, he would not normally have been expected to report such knowledge to the general officers or agents of the company before receiving the package nor is defendant chargeable with knowing what he knew when he received the parcel (Corrigan v. Bobbs-Merrill Co., 228 N. Y. 58). Once this shipment had been delivered to defendant and accepted by it under the false statement of value made by plaintiff, what was defendant to do? Plaintiff cannot take advantage of its own wrong.

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

Judgment affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Rose M. Commisso, Respondent, v. Allen E. Meeker et al., Appellants.
    Argued March 28, 1960;
    decided June 9, 1960.

      Robert R. Cafarell and Martin F. Kendrick for County of Oneida and Joseph Zambon, appellants.
    I. The judgment, insofar as it directs recovery against the County of Oneida, contravenes section 5 of article IX of the Constitution of the State of New York for the county “ shall never he made responsible for the acts of the sheriff.” (Matter of Doey v. Howland Co., 224 N. Y. 30; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315; Marony v. Applegate, 266 App. Div. 412; City of Oswego v. Montcalm Dock Co., 245 App. Div. 555; Chamberlin v. City of Yonkers, 253 App. Div. 917; Williams v. Hartshorn, 296 N. Y. 49; Young v. International Paper Co., 282 App. Div. 750; Isereau v. Stone, 3 A D 2d 243; Hawkins v. Dominy, 18 Misc 2d 221: Thomas v. County of Ontario, 187 Misc. 711; Lacock v. City of Schenectady, 224 App. Div, 512, 251 N. Y. 575.) II. As a matter of law, no act of the Deputy Sheriff was the proximate cause of the Mastrangelo-Meelcer collision and plaintiff’s resulting injury, and the trial court erred in submitting the issue of the negligence of these appellants to the jury. III. The presence of the Sheriff’s vehicle at the place where it was standing “ did nothing more than to furnish a condition or give rise to the occasion by which the injury was made possible and which was brought about by the intervention of a new, independent and efficient cause.'’ (Gralton v. Oliver, 277 App. Div. 449, 302 N. Y. 864; Bracy v. Lund, 197 Wash. 188; Geisen v. Luce, 185 Minn. 479; Mullane v. Steiner, 275 App. Div. 744; Kralik v. LeClair, 315 Mass. 323; Goldblatt v. Tabacco, 299 N. Y. 663; Slusarz v. Marshall, 282 N. Y. 694; Falk v. Finkelman, 268 Mass. 524; Keyser v. State of New York, 305 N. Y. 661; Nezbeda v. Port of New York Auth., 292 N. Y. 548; Ellsworth v. Couture, 308 N. Y. 969.) IV. The emergency red light demanded caution and was no invitation to drive in the middle of the street. V. The negligence of the colliding drivers was the proximate cause of plaintiff’s injuries. (Hicks v. State of New York, 4 N Y 2d 1; Mullane v. Steiner, 275 App. Div. 744; Ellsworth v. Couture, 308 N. Y. 969; Slusarz v. Marshall, 282 N. Y. 694.) VI. No act of the Deputy Sheriff was “ an efficient cause, without the operation of which the accident would not have happened.” (Leeds v. New York Tel. Co., 178 N. Y. 118.) VII. The Deputy Sheriff was not required to foresee that the stopping of his well-lighted vehicle with its revolving, flashing, red light in operation, on a clear night on a straightaway section of a well-lighted city street would be a source of danger to travelers upon the street. (Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339.) VIII. Even if the Sheriff’s patrol car was obstructing the street or traffic thereon, in the slightest degree, adequate warning of the presence of the patrol car, the men around it, and an emergent situation was given. (Axelrod v. Krupinski, 302 N. Y. 367; Killen v. New York Cent. R. R. Co., 225 App. Div. 8; Scott v. Delaware, L. & W. R. R. Co,, 222 App. Div. 409; Pascal v. New York Cent. R. R, Co., 254 App. Div. 807.) IX. The judgment appealed from imposes liability upon a governmental unit simply because its well-lighted patrol car with a large, revolving, flashing, red light in operation happened to be present where it was being used in the performance of essential police work in the vicinity where a head-on collision occurred between irresponsible motorists, both of whom observed but ignored the warning given by the flashing red light. It imposes an impossible burden upon the performance of essential police work, is contrary to law and should be reversed. (Wrubel v. State of New York, 11 Misc 2d 878; United States v. Hutchins, 268 F. 2d 69.) X. The court below erred in excluding from the record and keeping from the jury portions of the Utica State Hospital record and in particular plaintiff’s statement made to a doctor on the staff of the hospital that her “ depression and nervousness started when my lawyer forbid me to go out and told me to stay in the house for one year, all the time, and not have regular outdoor exercise.” (Williams v. Alexander, 309 N. Y. 283; People v. Samuels, 302 N. Y. 163; People v. Strait, 148 N. Y. 566.) XI. The court erred in refusing to permit appellants’ attorney to cross-examine plaintiff’s brother regarding the arrest, of plaintiff upon the complaint of her mother. (Baird v. Daly, 68 N. Y. 547; Jacobson v. Silberstein, 192 App. Div. 42; Levant American Commercial Co. v. Wells & Co., 186 App. Div. 497.) XII. No proper foundation was laid for the admission of Exhibits 8 and 8A in evidence. Their admission was erroneous and prejudicial to these appellants. XIII. The court below erred in refusing to instruct the jury upon pertinent provisions of the Traffic Ordinance of the City of Utica which pertained to the parking or standing of vehicles on the city streets as requested by these appellants.

      Kenneth W. Puller for Allen E. Meeker, appellant.
    I. Plaintiff has failed as a matter of law to make out a case of negligence as against defendant Allen E. Meeker. II. The court made reversible error in failing to admit in evidence the copy of the Utica police report. III. The trial court committed prejudicial error in refusing to admit certain portions of Exhibit 29 which is the State hospital record. IV. The trial court erred in excluding evidence of the arrest of plaintiff prior to the accident as a wayward minor. V. The charge of the trial court was prejudicial to defendant in the manner in which it went into detail regarding plaintiff’s injuries.

      Richard J. Darsey and John P. Gualtieri for Fradino S. Mastrangelo, appellant.
    I. Plaintiff failed to make out a case of negligence as against defendant Fradino S. Mastrangelo. (Smith v. Levison, 222 App. Div. 310.) II. There was reversible error in failing to admit Exhibit 19 in evidence. III. There was error in excluding testimony regarding defendant Mastrangelo’s medical condition at the time of trial. IV. Defendants were prejudiced by the emphasis on plaintiff’s medical case in the charge.

      Ferdinand D. Tomaino and Harold H. Hymes for respondent.
    I. The judgment recovered against the County of Oneida should not be set aside because of section 5 of article IX of the Constitution of the State of New York, which was raised for the first time by appellant county in its brief to the Appellate Division. An appellate court will not pass upon issues which were not raised in the court below and which are mentioned for the first time upon appeal. (Flagg v. Nichols, 307 N. Y. 96; Maloney v. Hearst Hotels Corp., 274 N. Y. 106; Muck v. Hitchcock, 212 N. Y. 283; McCann v. City of Albany, 158 N. Y. 634; Lindlots Realty Corp. v. County of Suffolk, 278 N. Y. 45; Eddy, Inc., v. Fidelity & Deposit Co., 265 N. Y. 276; Persky v. Bank of America Nat. Assn., 261 N. Y. 212; Matter of Yeannelis v. Menides, 259 N. Y. 513; Nod-Away Co. v. Carroll, 240 N. Y. 252; Paul v. Delaware, L. & W. R. R. Co., 175 N. Y. 478; Dodge v. Cornelius, 168 N. Y. 242; Corcoran v. New York Cent. & H. R. R. Co., 164 N. Y. 587; Purdy v. Erie R. R. Co., 162 N. Y. 42; Matter of Cooper, 93 N. Y. 507; Matter of Kipp, 70 App. Div. 567.) II. By appearing generally in this case, appellant county has waived the " constitutional immunity” it is now seeking. (39th-40th Corp. v. Port of New York Auth., 188 Misc. 657; De Simone v. Transportes Marítimos Do Estado, 200 App. Div. 82.) III. Under section 50-b of the General Municipal Law or section 59 of the Vehicle and Traffic Law or both, appellant county is liable for the injuries and damages sustained by plaintiff herein. (Bernardine v. City of New York, 294 N. Y. 361; Matter of Evans v. Berry, 262 N. Y. 61; Augustine v. Town of Brant, 249 N. Y. 198; Van Tassell v. Hill, 285 App. Div. 584; Miller v. City of New York, 266 App. Div. 565, 292 N. Y. 571; Kelly v. City of Niagara Falls, 131 Misc. 934.) IV. Appellant county is bound by the judgment in favor of respondent herein, because this judgment conforms with the "law of the case” and the ‘ ‘ theory ’ ’ upon which it was tried. (Brown v. Du Frey,
      1 N Y 2d 190; Owen v. Rochester-Penfield Bus Co., 304 N. Y. 457; Antonsen v. Bay Ridge Sav. Bank, 292 N. Y. 143; Berner v. Board of Educ., 286 N. Y. 174; Buckin v. Long Is. R. R. Co., 286 N. Y. 146; Persky v. Bank of America Nat. Assn., 261 N. Y. 212; Gaines v. City of New York, 215 N. Y. 533; Reilley v. City of New York, 273 App. Div. 1014, 298 N. Y. 710; Walldorf v. Central Greyhound Lines, 256 App. Div. 854, 280 N. Y. 725; Sanderson v. Epstein, 262 App. Div. 1028; Ringwood v. George & Son, 261 App. Div. 869.) V. Any claim for immunity which appellant county now seeks for itself as a governmental agency has been waived by the Court of Claims Act. (Holmes v. County of Erie, 266 App. Div. 220, 291 N. Y. 798; Miller v. City of New York, 266 App, Div. 565, 292 N. Y. 571; Lacock v. City of Schenectady, 224 App. Div. 512, 251 N. Y. 575.) YI. The ease at bar is not within the purview of the immunity provision of section 5 of article IX of the State Constitution. (Sawyer v. Town of Southport, 6 A D 2d 553; Oswego & Syracuse R. R. Co. v. State of New York, 226 N. Y. 351; Kelly v. City of Niagara Falls, 131 Misc. 934.) YII. This question of constitutional immunity is evidentiary and not jurisdictional, (Sawyer v. Town of Southport, 6 A D 2d 553; Matter of Evans v. Berry, 262 N. Y. 61; Augustine v. Town of Brant, 249 N. Y. 198; City of Oswego v. Montcalm Dock Co., 245 App, Div. 555.) VIII. The trial court properly exercised discretion in deleting certain portions of the Utica State Hospital record which went to the jury as Exhibit 29. (Williams v. Alexander, 309 N. Y. 283; Roberto v. Nielson, 262 App. Div. 1035, 288 N. Y. 581; Wolf v. Kaufmann, 227 App. Div. 281, 254 N. Y. 598; Vanderhule v. Berinstein, 285 App. Div. 290; Constantinides v. Manhattan Tr. Co., 264 App. Div. 147; Matter of O’Grady, 254 App. Div. 691; Geroeami v. Fancy Fruit & Produce Corp., 249 App. Div. 221; Roden v. State of New York, 208 Misc. 1076.) IX. The trial court properly refused to permit counsel for appellants county and Zambón to cross-examine plaintiff’s brother regarding an alleged arrest of plaintiff. (Gandolfo v. Appleton, 40 N. Y. 533; Manufacturers & Traders’ Bank of Buffalo v. Koch, 105 N. Y. 630; Carpenter v. Ward, 30 N. Y. 243; People v. Brooks, 131 N. Y. 321; Schultz v. Third Ave. R. R. Co., 89 N. Y. 242.) X. Since no police records were produced or properly offered into evidence, and none is part of this record, the question concerning any ruling of the trial court in regard to the police records is not properly before this appellate court. (People v. Sutherland, 154 N. Y. 345; People v. Parker, 137 N. Y. 535; Hathaway v. Addison, 48 Me. 440.) XI. Whether the manner in which the automobile of defendant county was parked on the highway was negligent and a proximate cause of the injuries and damages sustained by plaintiff were questions of fact properly submitted by the trial court to the jury for their determination, and should not be reviewed by the Court of Appeals. Whether or not a vehicle parked partly on the paved portion and partly on the shoulder of a public highway constitutes an obstruction and an unreasonable interference with the lawful use of the highway is a question of fact for a jury. (Luce v. Hartman, 6 N Y 2d 786; De Wald v. Seidenberg, 297 N. Y. 335; Cowley v. Fabien, 204 N. Y. 566; McCaffrey v. Baltimore & Ohio R. R. Co., 201 N. Y. 115; Mullen v. Fayette, 274 App. Div. 527, 300 N. Y. 501; Golja v. Davis, 257 App. Div. 1055, 282 N. Y. 735; Peck v. Independent Auto. Forwarding Corp., 256 App. Div. 859, 280 N. Y. 728; Olsen v. Jacklowitz, 256 App. Div. 1107, 280 N. Y. 853; Sargent v. Wass, 279 N. Y. 747; Diener v. Carmen Cab Corp., 264 N. Y. 407; Overbaugh v. Emory Transp. Co., 1 A D 2d 729; Rosen v. Leibowitz Pickle Works, 257 App. Div. 855; Hornshuh v. Alldredge, 149 Ore. 419.) XII. With the very wide shoulder available to him for parking, defendant Zambón was negligent in failing to park the county car completely off the paved portion and farther over on the shoulder. (Bacon v. Rochester Tr. Corp., 1 A D 2d 759; Keller v. Brennaman, 153 Wash. 208; Merback v. Blanchard, 56 Wyo. 152; Peckinpaugh v. Engelke, 215 Iowa 1248.) XIII. Having found defendants county and Zambón negligent, it was for the jury to determine whether such negligence was a proximate cause of the accident herein. (Sweet v. Perkins, 196 N. Y. 482 ; Ring v. City of Cohoes, 77 N. Y. 83; Leeds v. New York Tel. Co., 178 N. Y. 118; Hancock v. Steber, 208 App. Div. 455; Gibson v. State of New York, 173 Misc. 893, 259 App. Div. 1104; Overbaugh v. Emory Transp. Co., 1 A D 2d 729.) XIV. The evidence of plaintiff was substantial and sufficient for the jury to find negligence on the part of all defendants and that such negligence was the proximate cause of the accident. (McDonald v. Metropolitan St. Ry. Co„ 167 N. Y. 66; Hart v. Ruduk, 233 App. Div. 453; De Wald v. Seidenberg, 297 N. Y. 335; Cowley v. Fabien, 204 N. Y. 566; McCaffrey v. Baltimore & Ohio R. R. Co., 201 N. Y. 115.) XV. The evidence of plaintiff was sufficient to sustain the verdict of the jury in her favor against appellants county and Zambón. (Sweet v. Perkins, 196 1ST. Y. 482.)
   Froessel, J.

On December 22, 1957, at about 2:15 a.m., plaintiff, a 22-year-old unmarried young woman, was severely injured when an automobile operated by defendant Mastrangelo, in Which she was riding as a passenger, collided with an automobile operated by defendant Meeker, on Oriskany Street in the City of Utica. Parked partly on the south shoulder of Oriskany Street—its exact position is in dispute — at the time of the accident was the patrol car of the Deputy Sheriff of Oneida County, defendant Zambón, who shortly before had apprehended a speeding motorist. Following a conversation with the latter, Zambón returned to his patrol car to prepare a summons, whereupon the three passengers who had alighted from the vehicle of the apprehended motorist came alongside the patrol car to talk with Zambón. While thus engaged in conversation, the cars of Meeker and Mastrangelo approached from opposite directions.

Mastrangelo testified that, after he passed under the ‘ Halfway Bridge ” into Utica on Oriskany Street, he noticed a “ red flasher light ” ahead of him on the southerly side of the road. As he drew closer he noticed that the light came from a county car, which he stated was parked with the left rear portion on the road. He also noticed men standing alongside. Meeker, coming from the opposite direction, also noticed the flashing red light on the county car, and men standing alongside on the paved portion of the road. As Mastrangelo approached the county car and the men alongside it, he turned his car to the left. At about the same time, Meeker was allegedly attempting to pass another automobile proceeding westerly ahead of him. He saw a flash of lights come towards him (Mastrangelo’s ear) and both cars met in the center of the road head on. As a result of the impact, Mastrangelo’s automobile was pushed back and swung around, striking the left rear door of the patrol car.

Oriskany Street, where the accident occurred, is 78 feet wide. Its paved portion, consisting of three 10-foot lanes, is flanked on the north and south by wide shoulders of about 24 feet each. At the place of the accident the shoulder to the south was 26 feet wide.

It is contended on this appeal by the defendants Meeker, Mastrangelo and Zambón that none of them was negligent nor did any of them proximately cause plaintiff’s injuries. All of the members of this court agree that there is ample evidence in this record to sustain the jury’s contrary finding as to defendants Meeker and Mastrangelo. A majority of us similarly agree as to defendant Zambón.

The testimony of Mastrangelo that Zambón’s ear was parked partially on the paved portion of the street was supported by one Siemski who testified to similar effect. Siemski was traveling behind Mastrangelo’s car prior to the collision. Other witnesses stated at the trial that Zambón’s car was about 2 feet off the paved portion of the road. It is undisputed, however, that the 26-foot-wide shoulder on the south side, at the place where Zambón’is car stood, was level for a distance of up to 15 feet south of the paved roadway; and that the shoulder was wet but firm. It is also undisputed that traffic at about the time of the accident was exceptionally heavy—according to Zambón’s own testimony.

Certainly the jury had a right to find on the basis of the foregoing evidence that the Deputy Sheriff did not act reasonably under the circumstances, and that he negligently obstructed the highway. Taking the view of the evidence most favorable to plaintiff, as we must do in light of the verdict in her favor, it may be said that Zambón chose to obstruct the travelled part of the roadway on a night when traffic was exceptionally heavy, and failed to make full use of the 15-foot expanse of firm shoulder which was available to him. The, jury also had a right to find on the facts when thus viewed that Zambón’s negligence was a proximate cause of the accident and plaintiff’s resulting injuries — together, of course, with the negligent acts of Mastrangelo and Meeker (Peck v. Independent Auto Forwarding Corp., 280 N. Y. 728; Sargent v. Wass, 279 N. Y. 747; Lugert v. Cohen, 303 N. Y. 642; Overhaugh v. Emory Transp. Co., 1 A D 2d 729; see, also, Axelrod v. Krupinski, 302 N. Y. 367; Bacon v. Rochester Tr. Corp., 1 A D 2d 759; Rosen v. Leibowitz Pickle Works, 257 App. Div. 855, motion for leave to appeal denied 281 N. Y. 889).

The cases cited by Zambón in alleged support of his position are readily distinguishable. Most deal with instances where an automobile parked on the side of a highway had ceased to operate because of mechanical difficulties, and hence could not be moved onto a shoulder; or an available shoulder on which to pull over was lacking. Others are distinguishable in' that there was lacking a ‘ ' clear sequence ’ ’ or continuous stream of events culminating in injuries to plaintiff; or that" it clearly ‘ ‘ could [not] have been reasonably anticipated ’ ’ under the circumstances, as here, ‘ ' that the consequences complained of would result from the alleged wrongful act ” (Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425, 430).

As to the responsibility of the County of Oneida, it is true that ordinarily a governmental subdivision of the State would be liable upon the finding that its employee negligently caused injury to another in the course of performing his official duties (see County Law, § 53, subd. 1). The County of Oneida contends, however, that holding it vicariously liable in this case for the negligent acts of its Deputy Sheriff, as did the courts below, violates section 5 of article IX of the New York State Constitution, which provides in relevant part that “ Sheriffs * * * may be required by law to renew their security, from time to time; and in default of giving such new security, their offices shall be deemed vacant. But the county shall never be made responsible for the acts of the sheriff. ” (Emphasis supplied.)

This immunity provision was first added to our Constitution in 1821 as part of section 8 of article IV (see text in Lincoln, Constitutional History of New York, Vol. 1, pp. 205-206). The principal purpose of section 8 of article IV, apparent from its language and the debates at the 1821 constitutional convention, was to make the office of Sheriff an elective one (see Proceeding's and Debates, Constitutional Convention, 1821, at pp. 384-392 [Oct. 9, 1821]). Theretofore the office was an appointive one (N. Y. Const, of 1777, art. XXVI, at Lincoln, op. cit., supra, Vol. 1, p. 179).

The delegates to the 1821 constitutional convention vigorously debated the merits of electing Sheriffs to office. Immediately after the resolution proposing the change was carried, “ Mr. Munro offered an amendment as follows: ‘ But the county shall never be made surety for the sheriff, nor responsible for his acts.’ ” This proposed amendment was not debated by the convention. The minutes bear the simple notation that the amendment was “Carried”. Thus the immunity clause — in effect a rider to the provision for electing Sheriffs — became a part of our State Constitution.

At subsequent constitutional conventions, resolutions were offered to repeal the immunity provision, but they were never carried, with the result that this provision has endured to the present day as part of our Constitution. At the convention of 1867, Mr. Cooke proposed to repeal this provision, contending that the immunity provision ‘ is unnecessary, and deals • with matters that ought to be the subject of legislative action rather than of constitutional provision”. Debate followed, and the proposed amendment was defeated (Convention Proceedings and Debates, 1867-1868, Yol. II, pp. 924^926; see, also, id., Vol. V, p. 3653).

At the 1938 constitutional convention, a proposed amendment (Int. No. 470) introduced by Mr. Platt was referred to the Committee on Counties and Towns (Revised Record, N. Y. State Const. Convention, 1938, Vol. I, p. 237). The committee reported favorably (id., Vol. II, pp. 1016-1017), and when the amendment was reached on the General Order Calendar the following occurred:

1 ‘ Mr. Platt: I should like to move to recommit General Order No. 69, Int. No. 470, Pr. No. 799 to the Committee on Counties and Towns. That was a bill that was introduced at the instance of some of the sheriffs of the State, which would place the burden of responsibility on the county rather than the sheriffs. They feel now that it should not be done, and I therefore move to recommit.
‘ ‘ The President: Of course, you understand an order to recommit means to take it off of the calendar for good? Those in favor of the motion signify by saying Aye; contrary minded, No. The motion is carried. That disposes of it.” (Id., Yol. Ill, p. 2541.)

Another amendment eliminating the provision as to nonliability of counties for actions of Sheriffs was also proposed (Pr. No. 601, Int. No. 573; N. Y. State Const. Convention, 1938, Proposed Arndts., Yol. II). This too was not carried (see Revised Record, N. Y. State Const. Convention, 1938, Yol. I, p. 254; id., Yol. II, p. 745).

The immunity clause of section 5 of article IX has been construed by the courts on a number of occasions. The earliest reported case is that of Wolfe v. Supervisors of Richmond County (19 How. Prac. 370 [Sup. Cl, I860]). There involved was an action under the statute (L. 1855, ch. 428)—alluded to at the 1867 convention — providing that a city or county shall be liable in damages to a party whose property is destroyed by a mob or riot. The question presented was whether that statute violated the immunity provision of section 5 of article IX (then art. X, § 1). It was held that it did not. Justice Ingraham construed the immunity provision as follows (19 How. Prac. 373): “ The true construction of this clause is, that for anything done by the sheriff in the discharge of his official duties, the county shall not be liable. If it had been averred that the sheriff, while attempting to preserve the peace, illegally took possession of and destroyed the plaintiff’s property, this provision would apply and would protect the county from liability.’’ (Emphasis supplied.) He then reasoned that “ The statute of 1855 does not place the responsibility either on the act of the sheriff, nor as the defendant supposes, on the neglect of the sheriff to act. The only ground of liability is the existence of a mob or riot in the county, and the destruction of property by such mob.” {Id.)

The Wolfe case was followed in Moody v. Board of Supervisors of Niagara County (46 Barb. 659, affd. sub nom. Ely v. Supervisors of Niagara County, 36 N. Y. 297), where it was similarly contended that the statute of 1855 violated the immunity clause of the Constitution (see 46 Barb., at p. 662). Subsequent to these early cases, the lower courts have quite consistently applied the mandate of section 5 of article IX and have held the county immune from liability for the negligent acts of the Sheriff and his deputies, committed in the course of their official duties (Thomas v. Ontario County, 187 Misc. 711 [1946]; Mentillo v. County of Cayuga, 2 Misc 2d 820, 821 [1956]; Schnitzer v. County of Erie, 8 Misc 2d 989 [1957]; Isereau v. Stone, 3 A D 2d 243, 247 [1957]; see, also, Hawkins v. Dominy, 18 Misc 2d 221, 222).

It thus appears that the compelling mandate of the constitutional provision is crystal clear, stating in the plainest language that " the county shall never be made responsible for the acts of the sheriff.” (Emphasis supplied.) That provision has endured to the present day despite attempts at repeal in both the 1867 and 1938 constitutional conventions. The convention delegates in 1938 knew that in 1929 the Legislature had enacted former section 12-a of the Court of Claims Act; nevertheless it retained the constitutional provision, preserving the immunity of the county for the acts of the Sheriff. It was also known that the duties of the Sheriff have from ancient days embraced the same duties as those of police officers (see Proposed Code C’rim. Pro. [1850], § 154; County Law, § 650), in which capacity defendant Zambón acted when he proximately caused plaintiff’s injuries. It is therefore my opinion that defendant County of Oneida is immune from liability in this case for the negligent acts of its Deputy Sheriff.

Plaintiff argues on this appeal, in reliance on the case of Sawyer v. Town of Southport (6 A D 2d 553), that the meaning of the immunity provision is ambiguous and doubtful, and hence such legislative enactments as subdivision 1 of section 53 of the County Law override the constitutional mandate. Neither the Legislature nor the courts, because of equitable considerations or otherwise, have the right to override the constitutional mandate of section 5 of article IX. It cannot reasonably be said that because the immunity provision is found in a section which made the office of Sheriff an elective one, or because the provision became a part of the Constitution without the benefit of exposition or debate, its plain meaning is rendered obscure. Even if it were a necessary prerequisite, the debate lacking in 1821 was supplied in 1867; and section 8 of article IV (N. Y. Const., 1821; now art. IX, § 5), the section dealing with Sheriffs, was the only natural place to put the immunity provision. Moreover, the fact pattern in Sawyer is quite different. There a person had been lawfully commanded to aid ” the Sheriff, and the latter’s act was strictly in accord with law. The statute in that case created a liability without fault.

Several members of the court have taken the position that the immunity provision is inapplicable to the instant case, and hence the County of Oneida is liable for the negligent acts of Deputy Sheriff Zambón, committed in the course of his official duties. It is reasoned by them that the “ ancient” immunity ‘ ' provision protects comities from the consequences of wrongful performance by Sheriffs of the historic, conventional duties of the centuries-old office of Sheriff ”. Such interpretation of the constitutional provision is entirely correct, but it does not follow therefrom that the county is rendered liable in the instant case.

It is a matter of historical fact (see Problems Relating to Home Rule and Local Grovernment [N. Y. State Const. Convention Committee, 1938, Vol. XI], pp. 124-130), which has been recognized judicially (Coyles v. Hurtin, 10 Johns. 85, 87 [1813], opinion per Keut, Ch. J.; Pearce v. Stephens, 18 App. Div. 101, 104-105, affd. 153 N. Y. 673), and statutorily (see Proposed Code Crim. Pro. [1850], § 154; County Law, § 650), that the ‘ ' historic, conventional duties of the centuries-old office of Sheriff” have from time immemorial included police duties. As the court stated in the Pearce case (supra, pp, 104-106): “ It is the duty of a sheriff to act as a conservator of the peace within his county * * *. His duties are, in a large measure, in kind the same as are imposed upon police officers and he necessarily exercises police powers * * * duties devolved upon him by the common law ”. Defendant Zambón in this case was engaged in the performance of the present-day counterpart of the Sheriff’s traditional police duties when he negligently caused plaintiff’s injuries, and hence the county may not be held responsible.

In the Chief Judge’s opinion it is asserted that the immunity provision should be construed in the light of the provision dealing with the Sheriff’s official bond found in an earlier sentence of section 5 of article IX. It is reasoned therefrom that since the ‘ ‘ negligent handling of a county-owned automobile ” by a Deputy Sheriff does not constitute misfeasance or malfeasance ” of the sort for which recovery may be had under his official bond, such negligent acts are excluded from the ambit of the immunity provision.

In the first place, when the convention in 1821 added the immunity clause to section 8 of article IV (now art. IX, § 5) after the provision relating to the Sheriff’s security, it could only have meant by the word ‘ ‘ But ’ ’ that the county was immune regardless of that security. Secondly, I cannot agree with the basic assumption that the ‘ ' negligent handling of a county-owned automobile ” does not constitute misfeasance redressable against the surety. That issue does not appear to have been previously determined in this jurisdiction. However, the prevailing weight of authority in other jurisdictions which have passed upon the question holds that the surety would be liable under its bond for the negligent use of a vehicle by a Sheriff or peace officer in the course of performing his official duty (Duran v. Mission Mortuary, 174 Kan. 565, 578-580; Jones v. Buckelew, 247 Ala. 475; Rutledge v. Small, 192 S. C. 254, 260-261; United States Fid. & Guar. Co. v. Samuels, 116 Ohio St. 586; Curnyn v. Kinney, 119 Neb. 478; Fidelity & Cas. Co. v. Boehnlein, 202 Ky. 601). Thus in the last-cited case the court stated (p. 603): “By all the authorities, an official bond for the faithful performance of official duties covers misfeasance, malfeasance, and nonfeasance, as counsel for appellant concede, but their argument assumes negligence in the operation of a motorcycle by a policeman is none of these. Such an assumption has neither authority nor reason to support it.”

To hold the county liable in this case for the acts of the Sheriff would require us to cast aside the mandate of the Constitution and shift the liability from the surety to the county, which the Constitution directs shall never be made responsible. This may not be done without recourse to a constitutional amendment.

In addition to the substantive questions discussed above, the four defendants raise questions as to certain evidentiary rulings of the trial court which are not of sufficient consequence to merit comment. Accordingly, the judgment appealed from should be affirmed as to defendants Meeker, Mastrangelo and Zambón, with costs to the plaintiff, and reversed as to defendant County of Oneida, with costs to the county against the plaintiff.

Chief Judge Desmond (dissenting).

Judge Froessel’s able opinion speaks for the majority of this court as to the affirmed liability of defendants Meeker, Mastrangelo and Zambón.

However, as -to the alleged immunity of defendant County of Oneida, three of us (Judge Dye’s vote does not reach this question) take the position that there is no constitutional, statutory or other basis for exempting the county from liability for the negligent operation of the county-owned automobile by a Deputy Sheriff. Section 5 of article IX of our State Constitution cannot reasonably be read to produce so anomalous- and unreasonable a result. That ancient provision protects counties from the consequences of wrongful performance by Sheriffs of the historic, conventional duties of the centuries-old office of Sheriff. Of course, the Constitution does say literally that “ the county shall never be made responsible for the acts of the sheriff”. That sentence, however, connects itself with the one before it by the use of the word “But”. The Sheriff must give and keep in effect a surety bond to protect the county from his misfeasance or malfeasance, but, regardless of such security, the county is immunized from liability for his conduct of the office of Sheriff. Such a provision has nothing whatever to do with the negligent handling of a county-owned automobile which happens to be driven by a county employee paid by the county but carrying the title of ‘ ‘ deputy sheriff ’ ’. The delegates to the 1938 constitutional convention could not have intended to produce such a result by leaving section 5 of article IX in our State charter.

The judgment should be in all respects affirmed, with costs.

As to defendants Meeker and Mastrangelo: Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke and Foster concur with Judge Froessel.

As to defendant Zambón: Judges Dye, Van Voorhis and Foster dissent and vote to reverse and to dismiss the complaint as against him upon the ground that the evidence is insufficient to establish his negligence as a matter of law.

As to defendant County of Oneida: Judges Van Voorhis and Foster concur upon the ground stated in the opinion of Judge Froessel and upon the further ground that the evidence is insufficient to establish its negligence as a matter of law; Judge Dye concurs in result only upon the ground that the evidence is insufficient as a matter of law to establish its negligence; Chief Judge Desmond dissents and votes to affirm in an opinion in which Judges Fuld and Burke concur.

Judgment, insofar as appealed from by defendants Meeker, Mastrangelo and Zambón, affirmed, with costs to plaintiff; insofar as appealed from by defendant County of Oneida reversed, with costs to the county against plaintiff in all courts.


author:
Van Voorhis, J.
      Froessel, J. (dissenting).

text:
    Alice Hirsh, as Administratrix of the Estate of Irving S. Hirsh, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 32311.)
    Argued April 22, 1960;
    decided June 10, 1960.

      Louis J. Lefkowitz, Attorney-General (Jerome Lefkowitz and Paxton Blair of counsel), for appellant.
    I. The proof of the death by barbiturate poisoning of decedent, a known potential suicide, while in a State mental hospital does not justify a presumption of negligence on the part of the hospital. (Morris v. Lake Shore & M. S. Ry. Co., 148 N. Y. 182; Lahr v. Tirrill, 274 N. Y. 112; Digelormo v. Weil, 260 N. Y. 192; Noseworthy v. City of New York, 298 N. Y. 76; Garrow v. State of New York, 268 App. Div. 534, 294 N. Y. 741; Frate v. State of New York, 245 App. Div. 442.) II. The evidence introduced by the State is -sufficient to overcome any inferences of negligence by the State that may be deemed to have been justified by the circumstances. III. Claimant failed to sustain its burden of proving that the State did not provide reasonably adequate care for decedent. (Calabria v. State of New York, 289 N. Y. 613; Mobley v. State of New York, 1 A D 2d 731, 1 N Y 2d 643.)

      Nathan L. Levine, Harry H. Lipsig and Ernest L. Garb for respondent.
    I. The State owed a duty to claimant’s intestate to protect him from self-inflicted injury. (Shattuck v. State of New York, 166 Misc. 271, 254 App. Div. 926; Van Patter v. Towns Hosp., 246 N. Y. 646; Sporza v. German Sav. Bank, 192 N. Y. 8; Paige v. State of New York, 245 App. Div. 126; Martindale v. State of New York, 269 N. Y. 554; Curley v. State of New York, 148 Misc. 336; Luke v. State of New York, 253 App. Div. 783; Weihs v. State of New York, 267 App. Div. 233.) II. The State of New York was negligent in performing its duty to claimant’s intestate. (Gries v. Long Is. Home, 274 App. Div. 938.) III. The defense of procedure followed is not conclusive on the test of negligence. (Flagg v. Nichols, 307 N. Y. 97; Trembley v. Coca-Cola Bottling Co., 285 App. Div. 539; Saglimbeni v. West End Brewing Co., 274 App. Div. 201, 298 N. Y. 875.)
   Van Voorhis, J.

The State appeals from an affirmance of a judgment against it in the Court of Claims based on alleged negligence in failing to prevent plaintiff’s intestate from committing suicide while he was a patient at the Brooklyn State Hospital. He had a previous history of mental illness at other hospitals where he had made two suicidal attempts, one with phenobarbitol and the other by hanging. This time he succeeded in accomplishing his aim. He was pronounced dead on September 4, 1953 of barbiturate poisoning. Death was caused by swallowing about a dozen capsules of seconal at night.

Nobody knew where or how this drug was obtained by him nor where he had kept or accumulated the-se capsules in his room. It was not medicine that was ordinarily used at the Brooklyn State Hospital at this time. He had been assigned to a ward for suicidal patients. Eighty-five patients were in this ward. Decedent was given his meals in the ward where he was confined, which he left only for treatment or for interviews with a psychiatrist. On these occasions he was accompanied by an attendant or a nurse. When medication of any Mnd was required on this ward, the nurse would unlock and relock the door upon departure, relocking it after her return with the drugs. These medications — not seconal—would be brought to the ward in such amounts as were used immediately, even though this meant repeating the procedure every four hours. Visits from family or friends were supervised, and gifts brought into the ward were checked by an attendant. Patients were allowed a monetary allowance of less than $1 at a time, enough to send for cigarettes or gum but insufficient to bribe anyone to get drugs. Decedent had not recently drawn upon this small allowance. When this patient was admitted to the State Hospital, he was completely examined, his clothes removed and he was furnished with State clothing. The regular practice was for the night shift attendants to put the patient to bed after examining Ms clothing and bed. He had been put to bed wearing only a pair of shorts so as to prevent his secreting anything potentially dangerous. The regular routine included removal of the mattress and inspection under the bed by the attendants.

How he obtained the barbiturates which resulted in his death is a mystery in the record. The burden of proof to establish causal negligence is upon the plaintiff (Morris v. Lake Shore & Michigan Southern Ry. Co., 148 N. Y. 182). The State could not have provided an employee to watch every move made by this unfortunate man during 24 hours of the day. We are not persuaded that it is evidence of negligence that he was not repeatedly wakened and his bed searched during the night. If institutions for the mentally ill are required to take all of the precautions contended for in this case, and are to be held liable for such delicate mistakes in judgment, patients would be kept in strait jackets or some other form of strict confinement which would hardly be conducive to recovery. No reason is asserted that decedent was not given suitable electric shock treatments, tranquilizers or other treatment designed to mitigate mental depression and self-destructive tendencies. Reasonable care is required to protect such patients against themselves (Martindale v. State of New York, 269 N. Y. 554; Gries v. Long Is. Home, 274 App. Div. 938) but no evidence of lack of it has been shown in this case. An ingenious patient harboring a steady purpose to take his own life cannot always be thwarted.

The judgment appealed from should be reversed and the claim dismissed, without costs.

Froessel, J. (dissenting).

Upon the findings below, amply supported by the evidence in this record, and in light of the cases hereinafter cited, I am of the opinion that the judgment appealed from should be affirmed.

Irving Hirsh, claimant’s decedent, died by suicide on September 4, 1953, while a mental patient at Brooklyn State Hospital. Hirsh, when admitted to the hospital on August 21, 1953, had a record of mental illness dating back to 1933, which included numerous attempts at suicide. His suicidal propensities were known to the authorities at Brooklyn State. He had been there previously in 1938-1939. He was returned to Brooklyn State in 1953 as a direct result of two attempts at suicide which occurred during the immediately preceding three weeks. On August 2, 1953 Hirsh, then a patient at the High Point Hospital in Port Ohester, New York, attempted suicide “by taking an indeterminate number of phenobarbitol tablets which he had secluded in Ms room ” (emphasis supplied). His second attempt during that period was by hanging.

In view of his record, the examining physician at Brooklyn State noted in his report that Hirsh “ need[ed] * * * constant nursing attention ”. He was placed in the suicidal ward, known as Ward 5. That ward, consisting of several dormitories ranging in size from 2 to 12 beds — decedent’s dormitory had 12 beds—was directly supervised by attendants and nurses. There were three tours of duty, or shifts, among the attendants and nurses: the first from 8:00 a.m. to 4:00 p.m.; the second, known as the ‘ ' evening shift ’ ’, from 4:00 p.m. to 12:00 midnight ; and the third, known as the ‘ ‘ night shift ’ ’, from 12:00 midnight to 8:00 a.m. It was during the evening shift that the patients in Ward 5 were put to bed.

The duties — as generally described at the trial—of the members of the hospital staff who worked on the evening shift were “ To observe patients, to help them in their needs, feed, clothe them, to carry out the orders of the physician and the nurses in charge of the service ’ ’; and more particularly it was their responsibility to “ examine clothing and the beds of the suicidal patients ”. Those engaged on the night shift, at which time the patients would be sleeping, would “ make rounds at frequent intervals ” of the various dormitories in Ward 5. Their inspections were of a cursory nature, looking ‘ ‘ to see if the patient was all right and in good condition ’ \ At 6:00 a.m. the patients would be awakened, and the night shift attendants would see to it that they dressed and were taken to breakfast.

On the morning of Friday, September 4th, the night shift attendant attempted to awaken decedent Hirsh but he failed to respond. A physician was summoned who pronounced Hirsh dead. That physician, Dr. Cohen, testified that Hirsh appeared to be in a “ deep sleep. ”. He was clad only in shorts — the bed attire customarily worn by the patients in Ward 5. A search was made of the immediate surroundings, but no containers or boxes were discovered.

An autopsy performed subsequently disclosed that Hirsh died by barbituric poisoning, and claimant’s expert testified that the 19 grains found establish that decedent had ingested 12 to 15 seconal capsules of the gelatin covered type. When he was found dead at 6:00 a.m., his body was still warm and there was no sign of lividity, indicating that he had expired 1 to 2 hours previously. The quantity of seconal which he had taken was capable of producing death within from 1 to 6 hours. Hence Hirsh could have taken the seconal at any time 'after 10:00 p.m. on September 3d.

The record does not reveal the method used by decedent to acquire the seconal capsules. That is a subject of some speculation. There was conflicting testimony as to whether seconal was kept at Brooklyn State Hospital. In any event, since visiting days were on Wednesday and Saturday, decedent could not have had visitors on Thursday, the day before he died. None of decedent’s relatives remembered at the trial when they last visited him. The trial court, after seeing them and hearing them testify, expressly dismissed any speculation that they might have brought decedent the seconals.

It is obvious, moreover — and the trial court so found—that, regardless of the method used by Hirsh in acquiring the seconals, he managed to keep the 12 to 15 capsules secretly hidden from the hospital staff for whatever period he had them. The failure of the hospital staff to find the drugs before they could be used by Hirsh for self-destruction was negligence. It is my opinion that this finding of negligence by the Court of Claims, which was affirmed by the Appellate Division, is amply supported by the evidence in this record, and we are precluded from disturbing it.

As previously pointed out, the authorities at Brooklyn State Hospital had abundant knowledge of decedent’s suicidal propensities, and, in particular, knew that he had attempted suicide on a prior recent occasion by means of ingesting barbiturates which he had secluded m Ms room ’ ’. Previously decided cases make it clear that such knowledge on the part of the hospital authorities merits weighty consideration in determining whether they were negligent in preventing the self-infliction of harm by a mental patient committed to their charge (Martindale v. State of New York, 269 N. Y. 554; Shattuck v. State of New York, 166 Misc. 271, affd. 254 App. Div. 926; see, also, Weihs v. State of New York, 267 App. Div. 233; Gries v. Long Is. Home, 274 App. Div. 938; Curley v. State of New York, 148 Misc. 336, affd. sub nom. Luke v. State of New York, 253 App. Div. 783). “ The degree of care to be observed is measured by the patient's physical and mental ills and deficiencies as known to the officers and employees of the institution” (Zajacskowski v. State of New York, 189 Misc. 299, 302).

Thus, in the Martindale case (supra), for example, the decedent died after escaping the institution by removing a “lug ” from a window. The State had notice, in light of a previous attempt of decedent to escape by the same method—namely, removing a lug ” from a window. We affirmed a finding for the claimant on the ground that the State was liable for the negligence of its officers in failing to protect the window, and in failing to provide constant supervision of the patient after kowledge of her desire and propensity to escape. Similarly, the Shattuck case (supra) involved a mental patient with a known propensity to escape by climbing through an unlocked top portion of a window. The State was held liable for injuries sustained as a result of a second escape by^the same method. In the ease now before us, the authorities at Brooklyn State Hospital-—having knowledge of decedent’s past attempt at suicide by means of barbiturates “ secluded in his room "—failed to take the precautions reasonably necessary to prevent a recurrence of the act.

The standard of care, or procedures, commensurate with the risk to be perceived, which should have been followed by the hospital authorities in this case, were outlined by plaintiff’s expert witness at the trial. In view of decedent’s “ mental history ”, he stated that proper standards required a “ search of personal effects and the immediate surroundings ’ ’ frequently each day: “I would have instructed my attendants to search Irving from head to foot before they put him to sleep, and to search him several times during the day to examine him several times during the day and to examine Ms person and every part of his personal effects, and because of these suicidal tendencies I would have reminded and especially alerted the personnel and also the fact that he was a potentially barbiturate suicide, and if I may say so, counsel, I would have alerted them to the fact that they can’t be sure that they have checked carefully unless they had searched Mm repeatedly, and unless they did a thorough, and I mean a thorough searching by means of palpating every part of his body and all of his clothing and —- ”.

In accordance with the outlined statement of procedures, which are undisputed, the Court of Claims found that it was the “ responsibility ” of the “ Evening Shift ” (emphasis supplied) to “ examine the patient’s clothing and inspect his immediate environs to determine and discover any irregularities that would indicate a suicide attempt,” (Finding of Fact Ho. 11.) These “simple rules” the Court of Claims found were “violated.” by the State, particularly in that “ The employees of the Evening (4 P.M. to 12 Midnight) Shift failed to adequately inspect and examine Hirsh’s clothing' and bed on September 3rd, 1953” (Finding 12) and “ The State’s employees failed to adequately care for, supervise and have under surveillance Irving Hirsh on the Mght of September 3rd-4th, 1953.” (Finding 22; see, also, Findings 14, 23, 24,)

Such findings—-which the Appellate Division affirmed-—are' justified in light of the proof in this record that Hirsh consumed 12 to 15 gelatin covered capsules of seconal. Such a quantity of capsules comprises a substantial physical bulk. Had the staff properly palpated Ms body, checked Ms clothing, bed and environs as they were duty-bound to do, the seconal would have been uncovered. The situation would be far different if we were dealing in this case with a suicide committed by - means of ingestion of a few diminutive pills.

There is also evidence in this record that the staff were never alerted to the fact that decedent was a potential barbiturate suicide, and that he had once attempted such a suicide by means of barbiturates secluded in his room—notwithstanding the fact that the hospital authorities knew of this. The five attendants who served on the evening shift on September 3, 1953 did not testify at the trial. They had resigned since Hirsh’s death. However, the nurse in charge on that shift was present at the trial and testified as follows:

“ Q. Did you have anything to do with searching the environs of the patients to see if they were hiding medication? A. Not unless I had reason to be suspicious.
Q. Did you at that particular time in September or around September 3rd, 1953 know that Irving Hirsh had at one time attempted suicide by taking an indeterminate amount of phenobarbital? A. I don’t recall, I knew at the time —
“ Q. Nobody told you about that? A. No, sir.” (Emphasis supplied.)

One of the attendants on the night shift at the hospital during the time that Hirsh was there testified that he had not been given any special instructions with regard to Hirsh; and when asked if he knew that Hirsh “ had attempted "suicide by taking barbiturates on a prior date than his date of admission to Brooklyn State”, he replied: “No, I didn’t know that.” (Emphasis supplied.)

The majority of the Appellate Division in its opinion for affirmance in .this case took note of the fact that decedent Hirsh had consumed 12 to 15 capsules of seconal, and aptly observed that ‘ ‘ Each case must be decided on its own merits but the rule is clear (Van Patter v. Towns Hosp., 246 N. Y. 646; Paige v. State of New York, 245 App. Div. 126; Martindale v. State of New York, 269 N. Y. 554) ”—namely, that the State is liable for the failure of its hospital personnel to take reasonable and necessary precautions to protect mental patients from self-inflicted injuries.”

Such “ reasonable and necessary precautions ” were not taken by the hospital authorities or staff in this case. It is stated in the majority opinion of this court that it was the regular practice for the night shift attendants to put the patient to bed after examining his clothing and bed, which included the removal of the mattress and inspection under the bed by the attendant, although these attendants did not report for duty until midnight. However, the record in this case discloses only the duties of the hospital staff as outlined earlier in this opinion—not that they were in fact performed. Indeed, there is absolutely no evidence in this record that these duties were performed or any practice or custom carried out on the morning, afternoon, evening or night of September 3, 1953, the day immediately preceding the fatal early morning hours of September 4th when Hirsh expired from barbituric acid poisoning. The record does contain evidence that the mattress was removed and a search conducted underneath the bed of Hirsh and in that entire area, but that was done only after 6 o’clock on the morning of September 4, 1953, after the attendants bad found Hirsh dead in his bed.

Inasmuch as there is ample evidence here in support of the facts found by the Court of Claims, and these findings have been affirmed by the Appellate Division, we have no alternative but to affirm.

Chief Judge Desmond and Judges Dye and Burke concur with Judge Van Voorhis; Judge Froessel dissents in an opinion in which Judge Fuld concurs; Judge Foster taking no part.

Judgment reversed, etc.


author:
Chief Judge Desmond.
      Van Voorhis, J. (dissenting).

text:
    In the Matter of the Arbitration between Grayson-Robinson Stores, Inc., et al., Respondents, and Iris Construction Corp., Appellant.
    Argued April 29, 1960;
    decided June 10, 1960.

      Samuel Lawrence Brennglass and Lilburn S. Rogers for appellant.
    I. The arbitrators so imperfectly executed their powers and duties that a mutual, final and definite award upon the subject matter was not made. II. Under the circumstances, the arbitrators were without power to award specific performance and such futile and inequitable award should not receive judicial approbation. (Matter of Feuer Transp. [Local No. 445 ], 295 N. Y. 87; Finsilver, Still & Moss v. Goldberg, Maas & Co., 253 N. Y. 382; Matter of Lipschutz [Gutwirth], 304 N. Y. 58; Matter of Publishers’ Assn. [Newspaper Union], 280 App. Div. 500; Matter of Pocketbook Workers Union of N. Y., Local 1, AFL-CIO [Centra Leather Goods Corp.], 14 Misc 2d 268.) III. Courts of equity will decline to invoke the remedy of specific performance where, as in the instant ease, the enforcement of that remedy would be futile, inequitable, oppressive or impose hardship through changed circumstances or contingencies far beyond the contemplation of the parties. (Gotthelf v. Stranahan, 138 N. Y. 345; Trustees of Columbia Coll. v. Thacher, 87 N. Y. 311; Bradford, E. & C. R. R. Co. v. New York, L. E. & W. R. R. Co., 123 N. Y. 316; Saperstein v. Mechanics & Farmers Sav. Bank, 228 N. Y. 257; Baldo v. Ferrari, 223 App. Div. 494; Potter v. County of Essex, 272 App. Div. 969; Valley Associates Corp. v. Rogers, 4 Misc 2d 382; Levy v. Knepper, 117 App. Div. 163; Boyle Holding Corp. v. Medgreen Holding Corp., 154 Misc. 189.) IV. Courts of equity refuse specific performance of complex construction contracts or of contracts requiring the performance of continuous acts. (Beck v. Allison,
      56 N. Y. 366; Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60; Jones .v. Parker, 163 Mass. 564; Fiedler v. Coast Finance Co., 129 N. J. Eq. 161; Strauss v. Estates, of Long Beach, 187 App. Div. 876; McDonough v. Southern Oregon Min. Co., 177 Ore. 136; Matter of Heidemann v. American Dist. Tel. Co., 230 N. Y. 305; Matter of Staklinski [Pyramid Elec. Co.], 6 A D 2d 565, 6 N Y 2d 159; Matter of Ruppert [Egelhofer], 3 N Y 2d 576.)

      Samuel J. Silverman, H. Russell Winokur and Gerald D. Stern for respondents.
    I. The confirmation of the award directing-specific performance was proper. It should be affirmed even if it be assumed that a court would not have granted such relief if'the case had originated before it. (Matter of Ruppert [Egelhofer], 3 N Y 2d 576.) II. The parties having agreed to submit to arbitration, the court will give effect to the parties’ intention to have the arbitrators decide their dispute finally in accordance with the arbitrators’ sense of justice and equity. (Matter of Spectrum Fabrics Corp. [Main St. Fashions], 285 App. Div. 710, 309 N. Y. 709; Matter of Ruppert [Egelhofer], 3 N Y 2d 576; Matter of Staklinski [Pyramid Elec. Co.], 6 n Y 2d 159.) III. There is no public policy against giving effect to an arbitrator’s award of specific performance of building contracts except the one created by appellant to fit the necessities of this case. IV. The argument of difficulty of supervision has no application to an arbitration proceeding. (Kearns-Gorsuch Bottle Co. v. Hartford-Fairmont Co., 1 F. 2d 318.) V. The arbitrators’ findings on all questions of fact are final and conclusive. (Matter of Staklinski [Pyramid Elec. Co.], 6 N Y 2d 159.) VI. The arbitration award is final, definite and mutual and within the powers of the arbitrators to make, VII. The objection to the form of the award was not raised below. VEIL The objection as to the finality of the award is without merit. The award is clear and definite as to the performance directed. IX. The award is mutual. (Hiscock v. Harris, 74 N. Y. 108.) X. The arbitrators acted within their powers in granting the extension of time to erect the building. XI, Courts will grant specific performance of construction agreements where the nature of the construction or the work to be done has been sufficiently defined. (Jones v. Parker, 163 Mass, 564; Beck
      v. Allison, 56 N. Y. 366; Strauss v. Estates of Long Beach, 187 App. Div. 876.)
   Chief Judge Desmond.

Again, as in Matter of Staklinski (Pyramid Elec. Go.) (6 N Y 2d 159), the courts are called upon to confirm an arbitration award which, conformably to the express powers given by the parties to the arbitrators, directed specific performance of a contract. Appellant, defaulting in performance and losing its ease before the arbitrators, now argues to the courts, as -did the losing party in Staklinski and in Matter of Ruppert (Egelhofer) (3 N Y 2d 576), that enforcement of this award would be contrary to public policy. Specific performance of a contract to construct a building, argues appellant, is never ordered by courts.of equity because of the necessity of continuous judicial supervision and control of performance. Therefore, so the argument runs, the same courts will not confirm and enforce an arbitration award which decrees specific performance of the same kind of agreement. We disagree. There is no hard and fast rule against applying the remedy of specific performance to such contracts, especially when the parties have. by agreement provided for just that remedy.

In 1955 appellant Iris, owner of vacant land in Levitt-own, Nassau County, entered into a written agreement with respondent Grayson (later assigned by Grays'on to its subsidiary respondent Klein) whereby Iris undertook to erect on the Iris tract a building (part of a “ shopping center ”) to be rented by Iris to Grayson for use as a retail department store for a term of 25 years after completion with certain optional provisions for renewals of the term. Possession was to be turned over to Grayson “ on or before September 1,. 1957, time being of the essence ”. The agreement called for arbitration of all disputes and incorporated the rules of the American Arbitration Association which in terms empower the arbitrator in his award to grant any just or equitable remedy or relief including * * * specific performance ”.

There were -several amendments and extensions of the original contract, but none of these are relevant to our discussion. The plans and specifications for the building were completed or practically completed, a public ground-breaking ceremony was held and excavation commenced, then Iris notified GraysonKlein that, because of difficulties in getting mortgage money, Iris could not go further unless Orayson-Klein agreed to increase the agreed rent. The tenant declined to pay more. The building has never been- completed.

It was, apparently, always the intention of Iris to obtain by mortgage loan the money it needed for construction but there is nothing in the agreement relieving Iris of its obligation, in the event it should find such borrowing to be difficult or impossible. .At the arbitration and in the courts Iris has argued ‘ ‘ impossibility ” but the arbitrators disposed of that issue by ordering Iris to “ proceed forthwith with the improvements of the leased premises in accordance with the terms of the said lease, as amended.” There was no proof before the arbitrators of any physical or actual impossibility as distinguished from difficulty of financing or additional expense of construction.

It would be quite remarkable if, after these parties had agreed that arbitrators might award specific performance and after the arbitrators had so ordered, the courts would, contrary to the command of article 84 of the Civil Practice Act, frustrate the whole arbitration process by refusing to confirm the award. The only ground suggested for such a refusal is that confirmation would involve the court in supervision of a complex and extended construction contract. We hold that this apprehension or speculation is no deterrent to confirmation by the courts.

There is, of course, an old tradition or approach according to which courts have been reluctant to enforce “ Contracts which require the performance of varied and continuous acts, or the exercise of special skill, taste and judgment” because “the execution of the decree would require such constant superintendence as to make judicial control a matter of extreme difficulty ” (Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60, 66). In some instances courts of equity in other States have for some such reasons refused to order specific performance of building contracts (McCormick v. Proprietors of Cemetery of Mt. Auburn, 285 Mass. 548; see discussion in McDonough v. Southern Oregon Min. Co., 177 Ore. 136, 150). Other courts of equity have gone the other way (see Jones v. Parker, 163 Mass. 564, which also was a contract to build for a lessee). ‘ ' There is no universal rule that courts of equity never will enforce a contract which requires some building to be done. They have enforced such contracts from the earliest days to the present time ” (Jones v. Parker, supra, p. 567). On varying facts our New York decisions take one or the other position (Strauss v. Estates of Long Beach, 187 App. Div. 876; Post v. West Shore R. R. Co,, 123 N. Y. 580, 591; Jones v. Seligman, 81 N. Y. 190; Beck v. Allison, 56 N. Y. 366; Conger v. West Shore R. R. Co., 120 N. Y. 29, 32). Modern writers think that the " difficulty of enforcement” idea is exaggerated and that the trend is toward specific performance (5 Corbin, Contracts [1951 ed.], § 1172; 5 Williston, Contracts [rev. ed.], p. 3977; Restatement, Contracts, § 371, comment a). Clearly there is no binding rule that deprives equity of jurisdiction to order specific performance of a building contract. At most there is discretion in the court to refuse such a decree. And here we do not even have an equity suit but a motion made as of right to confirm a completely valid arbitration award conforming in all respects to the express conferral of authority on the arbitrators and meeting all statutory requirements for confirmation (see Civ. Prac. Act, §§ 1461,1462,1462-a).

Assuming that the equity court in an original suit would have discretion to refuse specific performance, and even making the very large assumption that the court would have similar discretionary power to refuse to confirm this award, it remains that such discretion, if any, was exercised the other way in this ease, and unanimously affirmed by the Appellate Division. That exercise of discretion-was justified on the facts. There is nothing extraordinary about this ordinary building contract. Appellant is simply being required to fulfill its promise. If it fails or refuses to obey the judgment, the remedy is in section 773 of the Judiciary Law.

Arbitration is by consent and those who agree to arbitrate should be made to keep their solemn, written promises. Such is New York State’s public policy, plainly written in article 84 of the Civil Practice Act. The courts should follow a ‘ ‘ liberal policy of promoting arbitration both to accord with the original intention of the parties and to ease the current congestion of court calendars ” (Lawrence Co. v. Devonshire Fabrics, 271 F. 2d 402, 410).

The judgment should be affirmed, with costs.

Van Voorhis, J. (dissenting).

If “ Arbitration is not merely a step in judicial enforcement of a claim nor auxiliary to a main proceeding, but the full relief sought” (Goodall-Sanford v. Textile Workers, 353 U. S. 550, 551), it would relieve the courts if the arbitrators enforced their own awards in specific performance instead of delegating that essential function to the courts after they have been discharged from further duty. Only recently was it settled that an arbitration award will be enforced by the courts which grants, under an appropriate arbitration clause, equitable relief by injunction (Matter of Ruppert [.Egelhofer], 3 N Y 2d 576). More recently it was held that our courts would enforce specific performance of an employment contract on an arbitration award (Matter of Stahlinski [Pyramid Elec. Co.], 6 N Y 2d 159) even though a court of equity would not compel a man to work for another or to continue another in his employment (see dissenting opinion by Judge Burke in Matter of Stahlinski [Pyramid Elec. Co.], supra, p. 165). The decision in the present case lends the enforcement machinery of the courts, to implement specific performance directed by arbitration that extends beyond any equitable relief which the courts have heretofore granted either on arbitrations or after trial.

The mechanism for enforcement of this award of specific performance of a complicated construction contract for the erection of a building estimated to cost $5,000,000, is a judgment to be entered following confirmation of the award under section 1466 of the Civil Practice Act which provides that “ The judgment so entered has the same force and effect, in all respects as, and is subject to all the provisions of law relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action in the court in which it is entered.” This signifies not that the arbitrators but that the court is the agency which will be called upon to supervise the construction of this elaborate and expensive building, and which will be required to do so by the very inappropriate remedy of punishment as for contempt of court. The plans and specifications, whether they have been finally approved by the parties or not, are not before the court and have been materially changed since the contract was made. They have been the subject of long and acrimonious disputes between the parties which are not likely to end with the entry of a judgment on this award for specific performance.

Respondents’ brief admits that the enforcement of this building contract will be the responsibility of the court and not that of the arbitrators (pp. 17-18). In a case of this kind, that circumstance closes the gap between what courts and boards of arbitration can do in specific performance where the objection to that form of court relief is impossibility of adequate enforcement. That is the basis on which courts have traditionally declined to grant specific performance of elaborate and time-consuming building construction contracts (Beck v. Allison, 56 N. Y. 366, 370; Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60; McCormick v. Proprietors of Cemetery of Mt. Auburn, 285 Mass. 548; Jones v. Parker, 163 Mass. 564; Restatement, Contracts, § 371). This section of the Restatement says: “ Specific enforcement will not be decreed if the performance is of such a character as to make effective enforcement unreasonably difficult or to require such long-continued supervision by the court as is disproportionate to the advantages to be gained from such a decree and to the harm to be suffered in case it is denied.”

"Where difficulty of enforcement is the reason for nonintervention by courts of equity, it is equally a reason on account of which restraint should be exercised in confirming and entering judgment upon arbitration awards where the difficulty of enforcement is precisely the same whether the judgment has been entered on the decision of a court or on an award in arbitration. This objection to the confirmation of this award is not based upon any threatened usurpation by the court of the jurisdiction of the arbitrators. This objection does not arise out of anything which the arbitrators did or omitted in the performance of their functions, but springs from difficulty in enforcement problems which devolve upon the court under the arbitration article of the Civil Practice Act which is invoked by respondents in moving to confirm the award. It was well said by Frank E. Johnson, J., in Queens Plaza Amusements v. Queens Bridge Realty Corp. (22 Misc 2d 315, revd. on other grounds 265 App. Div. 1057): “It is a fundamental limitation upon the jurisdiction of any equity court that it will not entertain demands that are inherently unenforcible by it. A decree in personam is enforced by contempt and whether or not there had been default would involve the trial of a question of fact as to plans, specifications, construction details, etc.; the enormous detail indicated by this contract would put the court in a position of a building superintendent and an architect, passing upon an incredible number of problems arising on a building construction large enough to warrant the mortgage of $140,000. This is so plainly outside of the power and function of a Justice of this court that supervision of the performance of such agreements cannot be entertained; they are outside of the practicable limits of equity jurisdiction.”

These problems are neither solved nor diminished by the circumstance that this responsibility of supervision of the construction of this building has to be undertaken by the court as the result of an arbitration. If the arbitrators were to remain upon the scene and supervise and enforce the building operations which courts are not created to handle, the result might be different. Once the award has been confirmed and judgment of specific performance entered, the arbitrators depart and the court has to enforce the building contract by contempt proceedings against the appellant and the persons of its officers and agents. The court cannot look to the arbitrators to resolve disputes arising in the erection of this building, either of interpretation of the building contract, plans or specifications, or concerning performance. The theory on which judgment will be entered is that the award is final and definite so that the acts to be performed can be clearly ascertained and the court determine whether or not the performance rendered is in accord with the contractual duty assumed (Civ. Prac. Act, §§ 1461-1462; 5 Corbin, Contracts, pp. 756-760). In order to punish deviation from the specific performance directed, or to decide whether or in what respects there has been performance, substantial performance or nonperformance, the court will be unable to call in the arbitrators to interpret its decree or subrogate them to vindicate its dignity if its decree is violated.

The court cannot appoint a receiver as an arm of the court to take possession of the property and cause the work to be done as was pointed out in Beck v. Allison (supra). The unsatisfaotoriness of contempt of court as the means of enforcement of transactions of this kind is augmented by the inability of the court to punish defaults that are not willful or deliberate (Staples v. Staples, 206 App. Div. 196; see opinion by McGivern, J., in Matter of Chassman [Probyn], 1 Misc 2d 766).

While ‘ ' There is no universal rule that courts of equity never will enforce a contract which requires some building to be done ”, in the words of Justice Holmes in Jones v. Parker (supra), the " question is practical rather than a matter of precedent ” and specific performance of construction projects can be decreed, said Justice Holmes, where the possible differences between the parties over the performance of the undertaking are such as lie ' ' within a narrow compass and which can be adjusted by the court.” All that was involved there was the installation of heating and lighting apparatus for the benefit of a lessee. Jones v. Parker is “A decision which has often been cited for more than it held ” (164 A. L. R. 802, 822). A similar holding was made in Strauss v. Estates of Long Beach (187 App. Div. 876) in directing the specific performance of a covenant to construct a sewer in a street in a subdivision in which the plaintiff had already purchased a lot from the defendant. A highway crossing was required to be constructed across a railroad in Post v. West Shore R. R. Co. (123 N. Y. 580). Professor Oorbin enumerates in section 1172 of his work on (Contracts situations where a court ‘' has ordered performance of building repairs and other construction work ”, relating to such relatively simple matters as the enforcement of contractual obligations for the construction of highway bridges, digging wells, repairing houses, laying sidewalks in subdivisions or refilling excavations after mining or gravel pit operations have been completed. But because this can be done in some instances does not mean that it can be done in all, nor does equitable jurisdiction in arbitrators signify that the courts will enforce anything that arbitrators may do — especially if it is of a nature that has been held to be unenforcible by judicial decree. None of the projects just enumerated approximate the complexity and magnitude of the building operation involved here.

The board of arbitration, without doubt, would have had jurisdiction to award damages to petitioners for any breach of this construction contract which has occurred but they were not asked to award damages. Petitioners told the arbitrators that they did not want damages but specific performance, which it is evident that the arbitrators granted pro forma because the contract said that a building was to be erected, and without considering whether the construction of this building by appellant had become impossible. They appear not to have understood that specific performance is not granted mechanically, that equity does not enforce idle ceremonies, that before making an award of this kind they had to rule upon whether performance had become impossible (Saperstein v. Mechanics & Farmers Sav. Bank, 228 N. Y. 257) and that if it was impossible petitioners would be relegated to damages. The record before us indicates that appellant applied unsuccessfullly to 27 different lending institutions in order to obtain the necessary mortgage money with which to erect this building. Petitioners appear to recognize that for this reason the building may not be constructed by appellant even after the entry of a specific performance decree. They profess an intention of suing for damages by the recovery of a fine to be imposed on appellant under section 773 of the judiciary Law in case appellant is adjudged in contempt (petitioners-respondenfs ’ brief, pp. 17-18). This contention presents a double anomaly in that (1) if it is impossible for appellant to construct the building, its failure to do so would not be willful and, therefore, would not subject it to punishment for contempt, and (2) the board of arbitration is deprived of its function to assess damages which should have been claimed and awarded in the first instance in case they found specific performance by appellant to be impossible.

Therefore, even if confirmation were not denied to the specific performance award on account of difficulty in enforcement, the award should be vacated and the matter remitted to the arbitrators to rule upon whether specific performance by appellant is possible and, if they find it is not, to decide upon the question

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

Judgment affirmed.