author: Gray, J. Maynard, J.

text:
    Charles G. Gabrielson, Resp’t, v. Frederick Waydell et al., App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

    Ships and shipping—Negligence—Owners not liable for willful and MALICIOUS ACT OF CAPTAIN. ¡
    The owners of a vessel cannot be made liable in damages for the willful and malicious act of their captain in assaulting and injuring a seaman while upon the high seas.
    (Maynard, Finch and O’Brien, JJ., dissent.)
    Appeal from judgment of theNew York superior court, general term, affirming judgment for plaintiff upon exceptions ordered to be heard in the first instance at general term.
    Plaintiff brings this action for damages against the owners and the captain of a vessel upon which he had shipped as an able seaman and, while in such service, had received grave injuries. During a voyage from the West Indies to the United States, upon a certain occasion, being ordered by the mate to “turn to,” he said he was sick and not able to go on deck. He had previously suffered from chills and fever, and what he was then suffering from seemed to be an attack of a similar nature.- The captain came into the forecastle and ordered him to go on deck. Plaintiff told him he was sick. The captain then hit him several times while lying in his bunk; pulled him out of his bunk, and said, “Will you go on deck now?” Plaintiff said, “I feel sick; I am not able to go on deck.” The captain again hit him several times with his fist, and, upon plaintiff’s catching hold of his arm, then kicked him upon the leg, breaking the bone below the knee. There was no struggle between the men, nor any provocation for the captain’s treatment beyond plaintiff’s complaint of illness. He was placed back in his bunk and his leg rudely placed in splints. Hpon the arrival of the vessel at Hew York, he was taken to the hospital and remained there until discharged as cured. The captain was not served with the summons and complaint, as he had never returned from a subsequent voyage, and was supposed to have been lost.« The trial judge permitted the case to go to the jury, and plaintiff recovered a verdict. Defendant’s exceptions being ordered to be heard in the first instance at the general term of the superior court of the city of Hew York, they were there overruled, and judgment was directed, upon the verdict, for the plaintiff. The defendants then appealed to this court.

      N. B. Hoxie, for app’lts; George P. Gordel, for resp’t.

       Reversing 40 St. Rep., 991.

   Gray, J.

—The question brought up by this record is whether the owners of a vessel can be made liable in damages for the wilful and malicious act of their captain in assaulting and injuring a. seaman while upon the high seas. The learned trial judge, in denying the motion to dismiss the complaint, proceeded upon two-grounds ; namely, that the captain was the representative or alter ego o£ the owner and was not a fellow servant with the plaintiff; and that the wilful and malicious nature of the captain’s act constituted no ground for an exception to the liability of the owners, if the act was performed within the general scope or course of his employment. Therefore, he left it to the jury to decide whether, in what he did to the plaintiff, the captain was acting in the line of his duty.

I think this appeal should prevail. There was no conflict in the evidence, and it proved a wilful assault by the captain of the vessel upon one of the seamen, which nothing in the evidence or within any principle of the maritime law justified as coming within a proper or an intended exercise of authority. For its occurrence the owners cannot be held responsible, in my opinion, either upon sound reasoning or upon any sufficient precedent; and the trial judge should have dismissed the complaint. I concede fully that we should, in determining this question, be guided by the principles of the maritime law. The plaintiff’s employment was, of course, a maritime contract. It is matter of familiar knowledge that about the mariner the maritime law throws a protection greater than is extended by the general rules of the common law to him who is employed in a service upon the land. This dis-' tinction arises, very naturally, from the difference in the nature of a mariner’s life and employment, which subject him to hazards and. hardships and tend to make him heedless in character. So the maritime law is peculiarly solicitous of his rights and watches over his more unprotected condition. Thus, for instance, it is strict in requiring shipping articles and liberal in interpreting them for the seaman’s interests in the presence of unfair or inadequate provisions. It obliges the owners to provide a seaworthy vessel. It requires that the vessel shall be provided with proper appliances for the seaman’s safety, and with adequate and proper food for his sustenance; and it imposes the duty of providing for his medical care and attendance in case of sickness or wounds. From the seaman a faithful and strict performance of his duties is required,, and because of the responsibility devolving upon the master of the vessel for the successful conduct of the voyage, considerable latitude in disciplinary powers is allowed to him, though no cruel or excessive punishment is sanctioned. In rendering to the seaman that care, and in performing those duties towards him which the law exacts from the owners of the vessel, the captain for such purposes represénts them, and a neglect of his, in such respects, is visited upon the owners. This liability follows from the situation of the parties. The owners are not in charge of the vessel. They remain upon the land and employ a master for the vessel; as well to carry out their assumed or implied obligations to the members of the ship’s company, as to perform the undertaking of conducting the craft successfully upon its voyage. The delegation of powers to the master of the vessel comprehends" their exercise in all such ways as the safety of the vessel and the welfare of its company render needful or expedient. While in those respects which demand of the owners the rendition of certain duties towards the crew the master of the vessel must and does represent them, and by his failure or neglect will entail consequences upon them for the breach of the obligation, he is, notwithstanding his representative and superior position, but a servant employed with the others of the ship’s company upon the vessel in the service of its owners. = The scope of the service varies as the position of the individuals employed differs; but, relatively to the general undertaking, they are fellow servants engaged in one common employment.

In Scarff v. Metcalf, 107 N. Y., 211; 11 St. Rep., 396, which was an action by a mate against the owners of a vessel to recover damages for negligence in omitting to provide him with adequate medical attendance and care, the plaintiff’s recovery was sustained in this court upon the ground that there had been a neglect of a duty imposed by the maritime law. Such a duty has always been recognized, and was prescribed in the laws of Oleron and Wisbury. What that case decided, with respect to the liability •of the owners of a vessel to a seaman for a neglect of the capT tain, was that it existed whenever his neglect concerned some- * thing as to which a duty rested upon the owners, under the principles of the maritime law, which, by force of the situation, could only be discharged through the agency of the vessel’s master. Its effect is to hold that in matters relating to the owners’ duty to the seamen, which the captain must perform, his negligence could not be regarded as merely that of a fellow servant, but as the neglect of the owners.

Cases which relate to the rights of passengers, or third persons, I do not consider as precedents, and several of that nature have been referred to. In the one class of cases, the passenger’s contract for transportation entitles him to protection against the negligence, or the assaults of the employees of the carrier. In the other class, strangers have the right to hold the owners liable for the consequences of a wilful act of the captain performed while engaged in the prosecution or execution of the owner’s business. The cases of Hunt v. Colburn, and Luscom v. Osgood, 1 Sprague, 215 and 82, related, as to the first, to the wrongful dismissal of an officer; and, as to the second, to the right to compensation for a minor’s services; and I cannot see in them precedents for the decision of this case. Nor is the case of Sherwood v. Hall, 3 Sumner, 127, an authority. That was an action for the shipment by the master of a vessel of the minor son of the libellant and he recovered a certain amount of wages and something for expenses and losses. The master there was the agent of the owners in shipping seamen to be employed on their vessel.

The responsibility for the wrong doings of the master of a vessel rests to a certain extent only upon the owners, and that extent is reached when the performance of the act complained of cannot be seen properly to come within some principle of the law of agency. The agency of the captain for the owners would include all "those acts which are fairly embraced within the scope of his appointment J and which would be in the line of his duty; but when he injures his men by misconduct, or assault, that would seem to be as much one of the risks which they assumed in entering the employment upon the vessel, as it would be one in the case of an employment in a concern upon the land, where the control and superintendence had been committed by the proprietor to a manager. It is impossible to regard a wanton assault upon a seaman by his captain as something within any intended authority, or within the scope of his employment. He outruns his authority and commits an act which the owners will not be presumed to have assented to.

I believe that by no extension of the principles of the law of master and servant, the general source of the law of principal and agent, could the blame be imputed to the owners of the vessel. It should at least appear that the act of the captain was required by the pressing emergencies of the occasion and not that he had indulged his passions by a vindictive treatment of the seaman. In the cases of Dias v. The Privateer Revenge, 3 Wash. C. C., 262, and of Ralston v. The State Rights, Crabbe, 22, the distinction is recognized between the acts of a master of a vessel done while engaged in the course of his duty in the prosecution of the owners’ business and those wholly outside of the scope of his employment. In the one case, the illustration was of a piratical seizure and, in the other, it was of the commission of a crime by the captain ; neither of which acts can be imputed to his owners, or be intended to come within the employment or authority committed to him. In Wilson v. Rankin, 6 Best & Smith, 208, which was an action to recover insurance moneys, the question turned upon whether the authority of the master of a vessel was of such a general nature as to subject the owners to the consequences of his having stowed the cargo in violation of the statute. Judgment was rendered for plaintiff, and Cockburn, Oh. J., in delivering the opinion of the court, used language quite applicable here. He said that “ it is a well established distinction that, while a man is civilly responsible for t'he acts of his agent when acting within the established limits of his authority, he will not be criminally responsible for such acts, unless express authority be shown, or the authority is necessarily to be implied from the nature of the employment, as in the ■case of a bookseller held liable for the sale by his shopman of a libelous publication. Under ordinary circumstances the authority of the agent is limited to that which is lawful. If in seeking to ■carry out the purpose of his employment he oversteps the law, he ■outruns his authority, and his principal will not be bound by what he does.” And again he said that “ no authority can be implied in the master, in the discharge of his duty, to do that which with reference to this part of his duty was a violation of the law.”

What was the act here complained of, if not a wilful and unjustifiable assault ? It was not disciplinary, for the idea of discipline does not suggest a personal attack with blows and kicks; and incompetency, or inability, do not justify punishment. Payne v. Allen, 1 Sprague, 304. It was certainly within the category of those offenses for which the United States statutes have prescribed the punishment of fine or imprisonment. U. S. Rev. Stat., § 5347. It was of a criminal nature and, hence, not intended by the Jaw to be within the scope of the employment of the captain; nor within the authority committed to him. Conceding all that we should to the force of the established principles of maritime law, in determining the question of liability here, we cannot say that the general rule at common law is interfered with in its application to the case; or that those principles of the maritime law establish any different rule. There is no question but that the •powers of a captain of a vessel are very extensive by virtue of his peculiar position. His great responsibilities and the general interests of commerce invest him with much discretionary power. His is the agency to which the law looks for the fulfillment of the obligations resting upon the vessel’s owners; and for his shortcomings and wrongdoings, when occurring in the performance of his duty, or in the scope of his employment, those owners must be liable. The more extensive powers and wider control exercised by the captain enlarge the field of service and necessarily heighten the resposibility of the owners to passengers, servants orstrangers; but, after all that' can be said, where is the warrant for holding them liable for the consequence of acts which are in utter departure from the execution of a duty? He has absolute command over the seamen in matters pertaining to their duties; but his command does not extend over their persons beyond the infliction of usual and necessary punishment in cases of disobedience, or infraction of rules.

We are then brought to the consideration of the rule of liability which would be applied to this case under the law as settled by this court, and there we will find the rule is not respondeat superior. We find that for an injury resulting to an employee from the willful neglect or tortious act of another, who is engaged in a common employment with him, the master is not liable at the .suit of the injured employee. He has performed his duty when he has furnished to those who are employed by him a reasonably safe place, appliances adequate to the purposes of the employment, .and when he has appointed as fellow servants in the undertaking proper persons, competent for their positions. After that, for what may happen from the risks of the employment, or from the negligence and torts of fellow servants, he will not be responsible. In the early case in this court of Keegan v. The Western R. R. Co., 8 N. Y., 175, Ruggles, Ch. J., stated the general rule thus: •“ Whenever the injury results from the actual negligence or misfeasance of the principal, he is liable as well in the case of one of his servants as in any other. But where the injury results from ■the actual fault of a competent and careful agent (as may sometimes happen) the fault will not be imputed to the principal when the injury falls upon another servant, as it will where the injury falls on a third person, as, for instance, on a passenger on a railroad. In the case of a passenger, the actual fault of the agent is imputed to the principal on grounds of public policy; in the case of a servant it is not.”

There is no evidence in this case that the owners failed in a compliance with any obligation to their employees, in the ship’s company, in the selection of a proper and competent captain: and were they to be accountable for his loss of temper or misconduct towards "the other employees ? I think not.

The proposition that the master of a vessel is not a fellow servant of the seamen is predicated upon the difference in their grades, and it has received the support of a decision in the United States supreme court in the case of Chicago, etc., R. R. Co. v. Ross, 112 U. S., 877, upon which case subsequent decisions in the federal courts have been based, which are referred to in the respondent’s brief. The opinions in the cases of The Titan, 23 Fed. Rep., 413; The Sachem, 42 id., 66, and of The A. Heaton, 43 id., 593, which are referred to by the respondent, were expressly rested upon the Ross case.

Spencer v. Kelley, 32 Fed. Rep., 838, which seems to give some support to the respondent’s contention, was at nisi prius. The trial judge’s remarks in his charge, if susceptible of the meaning attached to them, have no support, unless in the Ross case. He certainly refers to no authority. The Ross case was decided by a mere majority of the justices and is of questionable authority. It is without weight in this state, and has been distinctly disapproved in Loughlin v. The State, 105 N. Y., 159; 6 St. Rep., 826. Judge Andrews, speaking there of the responsibility of employers for injuries sustained by servants from the negligence of co-servants, remarked: “ In harmony with the general principle that the .character of the act is the decisive test, it has been repeatedly decided in this court that the fact that the person whose negligence caused the injury was a servant of a higher grade than the-servant- injured, or that the latter was subject to the direction or control' of the former and was engaged at the time in executing the'orders of the former, does not take the case out of the operation of the general rule, nor make the master liable.’’ The learned judge, referring to the citation of the Ross case, said it was “in conflict with - the course of decisions in this state and elsewhere.” That case and many prior decisions of this court, to some of which Judge Andrews refers, have settled the rule that the liability of the master for a servant’s injury, received while in his-employment from the act of another servant, does not depend upon the grade or rank of the offending or negligent servant. The liability of the master to his servant in such cases does not depend upon the doctrine of respondeat superior. That doctrine has no application and if a servant, under guise of exercising the authority conferred upon him, wilfully and maliciously does an injury to another servant, the servant’s master is not liable. As to such a matter the relation of master and servant affords no-ground for an action. Sherman v. The Rochester, etc., R R. Co., 17 N. Y., 153; Hofnagle v. R. R. Co., 55 id., 610; Malone v. Hathaway, 64 id., 5; Crispin v. Babbitt, 81 id., 516; Loughlin v. The State, supra.

In every case it is the character of the act which causes the injury to a fellow servant that determines the question of the master’s liability and the dividing line may be found in the wilfulness, or in the neglect, which caused it.

It was said in Wright v. Wilcox, 19 Wend., 343, that the master is not accountable for every mischievous act of the servant which he is enabled to commit in consequence of the general relation, and Lord Kenyon -remarked in McManus v. Crickett, 1 East, 106: “ When a servant quits sight of the object for which he is employed and without having in view his master’s orders pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him.”

The law may be regarded as settled in the English' courts, for a number of years, that the master is not liable to a servant for an injury occasioned by the negligence of a fellow servant although he be a vice-principal or the manager of the concern. Priestley v. Fowler, 3 M. & W., 1; Wilson v. Merry, L. R., 1 Scotch App. Cas., 326; Howells v. Landore Street Co., L. R., 10 Q. B., 62.

There is a very recent case, quite in point, decided by the English court of appeal. In Hedley v. The Pinkney & Sons Steamship Co., L. R., Q. B., Jan., 1892, 58, that court decided, reversing a judgment recovered below, that shipowners were not liable in damages for the death of one of the crew of a steamship, occurring by reason of the captain’s negligence in a matter pertaining to the care of the ship. It was there held that the captain and mien were fellow servants, engaged in a common employment, and for the injury resulting to the one from the negligence of the other their master was not liable. Reference was made in the opinions to the case of Ramsay v. Quinn, Ir. Rep., 8 C. L., 322, where a contrary view was taken by the Irish court of common pleas as to the liability of the shipowners and as to the relations of the cap ■ tain and seamen, and the court of appeal refused to accept, or to agree with that decision as authority. Kay, L. J., in his opinion in the case, said, in referring to Wilson v. Merry, supra, which was a case where a miner was killed through an explosion caused by the negligence of a manager of the mine, “ I see no difference between that case and the case of a captain of a ship and one of the crew.”

I think there is no reason for applying any different rule of law in this case than that recognized in our own and in the English courts. However great may be the powers of a captain of a vessel and however absolute his control, these considerations do not furnish a reason for holding his owners responsible for his malicious conduct towards the other seamen. They are all working together in the same undertaking and are in a common service, and his misconduct is one of the risks the seaman assumes. I am not satisfied that there is any principle of the law which intends, or that any consideration of public policy demands that the owners shall come under any obligation to indemnify a member of the ship’s company against the negligence or tortious acts of the captain.

I deem it, too, somewhat significant that no case is referred to in the admiralty, or United States circuit court reports, prior to the decision in the Ross case (supra), where the owners of a vessel have been sued for the captain’s tortious acts, and my own examination has revealed none; though I find many" cases where the captain has been sued for damages. For instance, in Thomas v. Lane, 2 Sumner C. C., 1, decided in 1834, the captain was sued and held as jointly liable with a mate for the mate’s tort. In Forbes v. Parsons, Crabbe, 283, decided in 1839; in Fuller v. Colby, 3 Woodb. & Minot, 1, decided in 1846; in Jordan v. Williams, 1 Curtis C. C., 69, decided in 1851, and in Payne v. Allen, 1 Sprague, 304, decided in 1855, the libels were against the captain for personal wrongs from his acts of violence and ill usage. I am quite unable to perceive any reason for holding the owners of this vessel responsible for the mere passionate and vindictive act of their captain. The complaint should have been dismissed by the trial judge on the motion of their counsel.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to abide the event.

Maynard, J.

(dissenting).—Under ¿he maritime law, the master of the ship has plenary powers as the agent and representative of _ the owners. He selects, hires and discharges the seamen at his pleasure. He has supreme control of the management and navigation of the vessel, with which even the owners themselves, if present, cannot interfere. He determines all matters relating to the discipline of the crew, and the kind of punishment to be inflicted for disobedience of orders, or for a breach of maritime regulations, and when and by what instrumentality it shall be administered. While on shipboard his word is law, and he is, in fact, as well as in name, the “ master ” of the vessel. He may, when necessary, purchase supplies upon the credit of the ship; and, in certain emergencies, hypothecate and even sell it without the knowledge or express assent of the owners.

Having clothed the master with such extraordinary powers, it is not surprising to find that in discussing the extent of the owners’ liability for his acts, the writers upon maritime law have asserted that"the master is bound to the owners, and he and they to every one who may be affected by his acts, for his skill and attention in the management of the ship; It is not sufficient that he exercises his best judgment. He is bound to show that he possessed and exercised the judgment of a good commander with reasonable skill, care, prudence and fidelity. Curtis, 195. By the general maritime law of continental Europe, the responsibility of the owners for the master’s obligations, ex delicto, might he limited to their interest in the vessel and freight, if they so elected; but neither the civil law, nor the common law of England, recognized any such limitation, and it has, therefore, been said that the owners are personally liable for all the obligations which the master incurs within the scope of his authority, as master, to their full extent, whether arising ex contractu or ex delicto. Id., pp. 198-9; Parsons on Maritime Law, 94, 391. In one case the admiralty court held that the owners were answerable for torts committed by the captains they employed under a general principle of the maritime law, and not by virtue of any special contract. Dean v. Angus, Bee, 375.

While all these authorities assert the liability of the owners in terms so general and so broad as to include the tortious acts of the master towards the members of the crew, yet it is evident that attention was not specially directed to this class of cases, and we do not, therefore, feel at liberty to hold that any different rule is to be adopted, in ascertaining and measuring that liability, than has been applied by this court where the servant has sought to render his employer responsible for injuries received in other than maritime employments. The ship-master and the crew were all engaged in a common undertaking and, unless the acts of which the plaintiff complains were in some form a violation of the obligations which the defendants assumed as a part of the contract of hiring, or of some positive duty imposed upon them by law, he cannot be permitted to maintain this action. Crispin v. Babbitt, 81 N. Y., 516; Loughlin v. The State, 105 id., 159; 6 St. Rep., 826. There is, however, an exception to this rule, which is noted by Wood in his treatise on Master and Servant at p. 864, § 438: “ If he (the master) places a servant in a position of authority over, other servants, and makes the inferior servants subject to the direction and control of the superior, while he is not chargeable for the consequences of directions given by such superior servant within the scope of the general employment, yet there is no reason why he should not be chargeable to a co-servant for an abuse of such authority as much as he would be to a stranger.’’ The gravamen of the plaintiff’s cause of action is that he was cruelly and unnecessarily beaten by the ship master for an excusable refusal to obey his orders, and it may, therefore, well be questioned whether the case is not brought within the exception here referred to. But we think the liability of the defendants in this case rests upon a much broader ground. If the plaintiff’s testimony is worthy of belief, his injuries were the direct result of their failure to observe their contract obligations and duties towards him.

The mariner’s contract of hire is sui generis. It differs in many ■essential respects from the ordinary contract of service upon land. When once undertaken by a seaman he cannot withdraw from it at his pleasure. If he leaves the service without good cause he may be branded as a deserter and a criminal, and may be arrested by his employers without process or warrant, and forcibly compelled to return to the vessel and complete his engagement for service. He may be put in irons, or confined in jail in a foreign «country, or instantly subjected to corporal punishment, if, in the judgment of his employers, he is remiss in his duty, or disobedient to his superiors, or guilty of any conduct subversive of the good •order or discipline of the ship.

As stated by an eminent American writer upon the subject: “ It is the only form of service stipulated to be rendered by a free man of full age, known to the common law, in which the employer by his own act can directly inflict a punishment on the employed, for neglect of duty, or breach of obligation.” Curtis, 12. These manifestly harsh and oppressive features of the service, as well as other hardships and exigencies frequently encountered in it, gave rise to the imposition of correlative duties and obligations upon the part of the shipowners. We, therefore, find that some of the ■most important stipulations in the seaman's contract for hire are not usually contained in the shipping articles at all, but are dependent upon the principles of the maritime law. They are none the less obligatory upon the parties than if they had been inserted in the written compact between them. One of these guaranties upon the part of the owners, which is of supreme moment to the mariner, on account of his defenseless and perilous position upon the high seas, is that he shall have good treatment, and be protected from unnecessary violence. Special emphasis is placed upon this right in all the elementary works on the subject. Parsons, in his Maritime Law (vol. 1, p. 476), in speaking of the correlative obligations of the owners and the seamen, says that the former stipulate in the contract for hiring, “for good treatment and the due payment of wages.” In Abbott on Shipping (p. 174), it is said: “ The duties of the mariners and the master are reciprocal ; from the former are due obedience and respect; from the latter protection and good treatment.”

George Ticknor Curtis, in his treatise on the Rights and Duties of Merchant Seamen, takes up, seriatim, the general obligations of the parties to the manner’s contract, and which may, or may not, be included in their written agreement; saying (p. 19) “Although the articles are wholly silent upon such points, law and reason will imply certain engagements on the part of the master and owners, which are equally as imperative as those expressed im writing.” He then enumerates eight different obligations entered into by the owners as a part of the contract of hiring, the fifth off which is stated in these words: (p. 26), “It is further a part of-the general obligations of the contract, that the mariner shall be-treated with decency and humanity by the master and the officers- and by his shipmates,” and he concludes the enumeration by saying (p. 28): “ These are some of the important obligations assumed by the owner and* master in the hiring of mariners.”

In 1 Kay on Shipmasters and Seamen, it is stated (pp. 574-5): “ The crew have rights which are as carefully defined and enforced by law as their duties. Irrespective of statute, the obedience and skill of the seamen entitle them to remuneration, protection, humane and just treatment, proper food, if it is procurable, and care-in the event of sickness.”

The 16th admiralty rule of the United States supreme court’ provides that in all suits for assault and battery, or beating, the suit must be in personam only; and Benedict in his Admiralty Practice, commenting on this rule (§ 309) says: “ This is, undoubtedly, true where the action is technically for the assault and battery as a mere tort; but it would seem, on principle, that if the action be brought on the contract, as for not carrying the passenger safely and without injury, or for not treating with proper-kindness a passenger or seaman,, an assault or beating being the gravamen of the breach, the suit may be in rem against the vessel.”

Ho distinction is here made between the ill treatment of a passenger and of a seaman. In' the very early case of The Ruckers, 4 Rob. Ad., 60, it was sought to maintain a libel against the ship for an assault by the master upon a passenger on the high seas, and there does not seem then to have been any precedent for* such an action ; but as it was conceded that the proceeding would have been upheld if it had been the case of an assault upon a-seaman, it was insisted that a passenger was entitled to the same remedy, and it was so held by Sir William Scott. The inference-from the case is that the seaman’s right to reimbursement for injuries of this character antedates, in point of judicial recognition, that of th.e passenger.

In the case of Rice v. The Polly and Kitty, 2 Peters Adm., 420, the seamen were cruelly beaten by the mate. They appealed to the-captain for protection, which he denied them and punished them for complaining. They then left the service, and it was held that the contract of hiring was broken in consequence of their cruel treatment and that they could recover their full wages.

Judge Peters, a high authority upon this branch of the law, says (p. 421): “ I would observe here, as I did lately upon another occasion, that although the sole contract mentioned in these articles (i. e., the shipping articles) on the part of the master or owner, is the payment of wages, yet law and reason will imply other obligations, such as that the vessel should be sea-worthy and properly fitted for navigation; that the mariners shall be supplied with sufficient meat and drink; and that they shall be treated with, at least, decent humanity.” In a foot note it is stated that “ the claims of seamen to wages, under circumstances similar to ¡those mentioned in this case, for the whole voyage have been frequently allowed in the district court by Judge Peters, and that there are many cases in the English books in which the principles on which such claims are founded have been recognized.”

In Ward v. Ames, 9 Johns., 138, our own courts held that, if during a voyage a seaman is compelled to leave the ship on account of ill-usage, or cruel treatment by the master, or through his agency and for fear of his personal safety, the contract is broken and it is not a case of voluntary desertion, and he is entitled to recover his wages for the whole voyage.

To the same effect is Sherwood v. McIntosh, 1 Ware, 109, where it is said (p. 115): “ The seaman engages for the faithful performance of the services for which he contracted; the master, on his part, engages to treat his men with humanity, and this obligation of the master is not less imperative because masters do not think it necessary to insert any stipulations in the contract which may look like restrictions on their power.”

There are many other cases in admiralty holding a like doctrine. The Minerva, 1 Hagg. Adm., 347; Limland v. Stephens, 3 Esp., 269; Edward v. Trevellick, 4 Ellis & B., 59; Steele v. Thacher, 1 Ware, 91; Magee v. Ship Moss, Gilpin, 228; Relf v. Ship Maria, 1 Pet. Adm., 186; The America, Blatchf. & H. Adm., 185.

These decisions all proceed upon the ground that cruel treatment by the shipmaster is a breach of the contract of hiring on the part of the owners and relieves the seaman of all further obligation to perform on his part.

In Croucher v. Oakman, 3 Allen, 185, the supreme court of Massachusetts held that in an action of contract by the mate against the owners of the vessel to recover the damages sustained from the unlawful act of the master in wounding- and discharging him in a foreign port, while in prosecution of a voyage upon shipping articles signed by him, the plaintiff may recover such damages as will compensate him for the injury sustained by him in consequence of the breach of the contract. Bigelow, Ch. J., says (p. 187): “ The principle upon which owners are liable in such cases, is this.: The defendants, as owners of the vessel, contracted with the plaintiff for the performing by him of the duties of mate for a specified voyage. It was their contract although made in the name of the master. He was their agent to make and execute it. If it was broken by the wrongful act of their authorized agent, they are bound to make compensation to the party injured.”

In Hunt v. Colburn, 1 Sprague’s Dec., 215, it was held that if a seaman is wrongfully left in a foreign port by the master, the owners are liable and the measure of damages is an indemnity for all that he has lost and suffered, including the value of his clothing detained by the master.

The underlying and controlling principle of all these cases is, that the sailor is entitled to kind and humane treatment, and to protection from cruelty and acts of oppression on the part of his-associates; that a stipulation of that kind is as much a part of the-contract of hiring as that he shall have sufficient and suitable food and proper care, and medical attendance in case of sickness, and shall be cured at the expense of the ship owners, without any deduction for loss of services, and the various other provisions-which the just spirit of the maritime law has imported into the-contract for services in such cases and the observance of which has always been tenaciously insisted upon whenever these contracts have been the subject of judicial scrutiny.

The policy of the law in this respect had become so firmly fixed that it was held by Judge Story, in Harden v. Gordon, 2 Mas., 541, that an express written agreement on the part of the - seamen to pay for medical advice and medicines was void,, and it is intimated that no stipulation contrary to the provisions-of the maritime law to the injury of the seamen will be allowed to stand, unless supported by an adequate additional compensation ; the learned judge using the expression, so often quoted,, that u they are emphatically the wards of the admiralty.” It does not follow that for injuries received while subjected to a mode of discipline authorized by the maritime law, the seaman can maintain an action against the owners. The authority of the master-over the crew has been likened to that of a parent over his child,, or a teacher over his pupils, or a master over his apprentice.. Like them he must, in the first instance, necessarily be the judge to determine when resort shall be had to corrective measures. The proper discipline of the vessel is indispensable to the successful prosecution of the voyage, and is just as much a part of its-navigation as the skillful direction of its course or the careful management of its machinery or apparatus. For an error of judgment in determining when punishment shall be inflicted, or in the selection of the means of chastisement, so long as it is one which is approved by the maritime code, or in the application of the means thus chosen, no recovery can be had. But the present-case is destitute of any such feature. It is conceded in the prevailing opinion that what the master did was not in the exercise-of any disciplinary authority, but was an unprovoked, unjustifiable and brutal assault by him upon the plaintiff. While acting as the representative of the defendants in the discharge oí the-duty which they owed to the plaintiff to protect him from ill treatment, and clothed with the absolute power to make his-authority effective, he deliberately violated the agreement which they had made with the plaintiff.

The complaint alleges a cause of action of this character, for it sets out the contract of hiring, the cruel and inhuman treatment of the master, and the consequent damage to the plaintiff;, and we cannot distinguish the case in principle from that of' Scarff v. Metcalf, 107 N. Y., 211; 11 St. Rep., 396, where it was held that in the performance of an obligation imposed by maritime law upon the owners of the vessel, the master stands as the agent and representative of the owners, and his negligence is theirs. It is but a statement in another form of the-rule of liability carefully preserved by this court in Crispin v. Babbitt, where it is declared that the exemption of the employer from responsibility to his servant for,, the wrongful acts of a co-servant does not include claims for injuries which are the-result of the act of the employer himself, or of a breach by him of some term, either express or implied, of the contract of service, or of his duty to his injured servant.

The responsibility of the shipowners does not therefore end when they have manned the vessel with officers and a crew, who, they have every reason to believe, are competent and skilful, and supplied it with all the provisions and equipments which the maritime law or regulations may require. They may have-placed on board a supply of food, abundant in quantity and unexceptionable in quality, and yet if the master, without good cause, should refuse to allow a sailor to partake of it until starvation or exhaustion, or other bodily injury resulted, it would not, we think, be contended that the owners were discharged from liability. The vessel may have a suitable medicine chest, and sufficient instructions for its use, and the master might unreasonably deny to a sick seaman the administration of the-proper remedies, but the owners would be liable for the resulting injury. ■ A master might compel a disabled sailor to do duty continuously, without rest or. sleep, until overcome, and perhaps permanently injured by fatigue; and the act would be deemed to be that of the owners, as much so as if they had been personally present and directed it.

So we might go through the entire list of the shipowners’ obligations to the sailor, and if he has been deprived of the benefit of any of them by the act of the master, the owners must bear the responsibility. In such cases the motive with which an obligation is broken is not material. We have been unable to find any reported case where a different measure of liability for a seaman’s injuries has been applied There are numerous decisions holding that the shipowners are not liable for the negligent acts of there aster or other officers in the navigation of the ship which involve no breach of the contract obligation or duties of the owners. Benson v. Goodwin, 147 Mass., 237, and The City of Alexandria, 17 Fed. Rep., 390, are typical of this class. In the former case the sailor was injured by the carelessness of the mate in allowing a part of the apparatus of the ship to fall upon him while they were attempting to weigh anchor under the orders of the captain; and in the latter case the cook fell through a hatchway which had been negligently left open by some one in the ship’s employ and of which the steward had failed to give him notice.

Such authorities have no relevancy or application to a case where, in consequence of the act, default or negligence of the ship-master, the terms of the contract under which the seaman entered the service have been broken. In other words, the negligence of the shipmaster in doing an act pertaining to the navigation of the-ship, and his negligence in performing the stipulations in the contract of his principals, or a duty imposed upon them by law, differ widely in their legal effect. It may well be that for the one-the mariner has no remedy against his employer. It was a risk which he impliedly assumed when he entered the service. But for the other the shipowners have bound themselves to be responsible. If they entrust the discharge of their obligations to another, they guarantee his fidelity, and his default becomes their default under the well-settled rules of law establishing the liability of principals for the acts and omissions of their agents. Two decisions of the supreme court of Wisconsin have been referred to as embodying conflicting views upon the question here involved. Thompson v. Hermann, 47 Wis., 602; Mathews v. Case, 61 id., 491. But upon examination it will be found that they are in harmony, and support the conclusion we have reached. They also very clearly illustrate the vital distinction which separates the cases where the owners must respond for the consequences of the negligent or wrongful conduct of the master from the cases where they are exempt from such liability.

In the 47th Wis. the master wantonly and recklessly exposed the sailor against his protest to an unnecessary danger, in consequence of which he was injured. It was a denial to the seaman of that measure of protection which, under his contract of service, he had a right to enjoy, and the owners were made liable. In the 61st Wis. the master was at the wheel steering the vessel and negligently, or unskilfully steered it lengthwise into the trough of the sea, causing large quantities of water to flow over the deck, washing the yawl boat against the mate and severely injuring him. It was held that the cause of the injury was the negligence of a co-employee for which the owners were not responsible.

The ill treatment of the plaintifl: by the master was not successfully controverted upon the trial; a serious and permanent physical injury has been the result; the verdict was evidently not controlled by sympathy or prejudice; and the charge of the learned judge contained no error of which the defendants-can justly complain.

The judgment should, therefore, be affirmed, with costs.

Judgment and order appealed from reversed and new trial ordered, with costs to abide the event.

Earl, Ch. J., Andrews and Peckham, JJ., concur; Maynard, J., reads for affirmance ; Finch and O’Brien, JJ., concur.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    George C. Carpenter et al., Resp’ts, v. The German-American Insurance Co., App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

      1. Insurance (fire)—Notice to general agent that assured- is not SOLE OWNER.
    A., the sub agent of M., a general agent of defendant, before the original policy was issued, of which the policy in suit is a renewal, was sent by the latter to inspect the premises and arrange the insurance, and was then' informed by plaintifl: that the property upon which the insured building was erected was held under a contract of purchase from a New Jersey bank. Held, that this constituted notice to defendant that assured was not the sole owner.

      2. Same—Proofs of loss—Delay in furnishing.
    Notice of the fire was given hy plaintiff to the company on the day it occurred. Adjusters come to the premises a few days after. After some delays by adjusters and experts the principal plaintiff was called to Philadelphia several times on business. Held, that under the circumstances a delay of 115 days after the fire in serving proofs of loss was not as matter of law unreasonable.
    3. Same—Waiver.
    The insistence of the company upon the right to examine plaintiffs-under oath as to the loss, and their subsequent examination by the defendant, was a waiver of any objection founded on the delay in serving proof of loss.
    4. Same—Title of assured—Estoppel.
    Plaintiff had a contract of sale for the property insured with the State-Bank of Elizabeth, N. J., which was only the beneficial owner, the title being held by its president in his own name, who knew of the sale to plaintiff by the bank, and consented thereto, having forgotten that he held, the title. Held, that the principle of equitable estoppel applied against the president, and plaintiff had an insurable interest in the property.
    Appeal from judgment of the supreme court, fifth department, affirming judgment for plaintiff.

      Martin W. Cooke, for app’lt; George Wadsworth, for resp’ts.

       Affirming 40 St. Rep., 988.

   Andrews, J.

—It must be assumed, in disposing of this appeal, that Andrews, the sub-agent of Mandeville, before the original policy was issued, of which the policy upon which this action is brought is a renewal, was sent by Mandeville to inspect the premises and arrange the insurance, and that he was then informed by the plaintiff that the property upon which the insured building was erected was held under a contract of purchase from the State Bank of Elizabeth, New Jersey. If this constituted notice to the defendant then, within our decisions, the policy was not avoided by the printed condition that if the assured is not the “ sole, absolute and unconditional owner of the property insured, or if said property be a building and the insured be not the owner of the land on which said building stands, by title in fee simple, and this fact is not expressed in the written portion of the policy, this policy shall be void.” Van Schoick v. The Niagara Fire Ins. Co., 68 N. Y., 434.

It appears that Mandeville was a general agent of the defendant, clothed with power- to make contracts of insurance and to issue policies, and was furnished with printed forms, which he filled up as occasion required. He was agent for several other companies also, which presumably upon the evidence was known to the defendant. Andrews had been employed by him for several years before the policy in question was issued, to solicit insurance, acting as Mandeville’s clerk and employee. It has been the common custom and practice of agents of insurance companies, having the power of general agents, to employ subordinates to render services similar to those rendered by Andrews, and we have held that notice to such a sub-agent while engaged in soliciting insurance of any fact material to the risk, and which affects, the contract of-insurance, is notice to the company and binds the company to the same extent as though it had been given directly to the agent himself. Arff v. Star Ins. Co., 125 N. Y., 57; 34 St. Rep., 366; Bodine v. Exchange Ins. Co., 51 N. Y., 123.

The point, therefore, based on the condition as to the ownership of the insured property must be overruled.

Another question relates to the delay in serving proofs of loss. The fire occurred October 10, 1883. The proofs of loss were not received by the company until February 2, 1884, 115 days after the fire. The policy provides that in case of loss “ the assured shall give immediate notice thereof and shall render to the company a particular account of said loss under oath,” embracing certain facts specified. Under this clause it became the duty of the plaintiffs to furnish proofs of loss within a reasonable time. What is such reasonable time may become a question of law, as where there has been a long delay, unexcused, and the company has not waived a compliance with the requirement of the policy. But in cases where circumstances are shown which reasonably justify the delay, or the insured acted with reasonable promptness in view of all the facts disclosed, having regard both to his own situation and the protection of the company, it may be a question for the jury whether the provision as to proofs has been violated. So, also, it is competent for the company, either before or after the alleged delay, to waive an insistence upon this clause, and such waiver may be express or it may be implied from conduct inconsistent with an intention to rely upon this defense.

In this case it appears that notice of the fire was given by the plaintiff to the company on the same day on which it occurred. Adjusters of companies represented by ."Mandeville came to the premises a few days afterwards and examined into the circumstances. The plaintiffs, according to their evidence, proceeded to secure a millwright and another expert to make estimate of the value of the machinery and property burned or injured. When this had been accomplished, after considerable delay, the matter of preparing the formal proofs was put in charge of an insurance man, who delayed the preparation for about a month. The principal plaintiff, after the fire and before the proofs were forwarded, was called to Philadelphia several times on important business ■connected with the delivery of cattle under contracts made by him before the fire, and was unable to give personal attention to the preparation and foiwarding of the proofs.

Under the circumstances, we are not prepared to say that it ■could be ruled as a question of law that the delay in furnishing the proofs was unreasonable. The performance of the stipulation .as to proofs of loss is not made a condition of liability of the defendant by the terms of the policy, but it is a condition of recovery. The furnishing of proofs of loss promptly may, in many cases, be important to the protection of the rights of the insurer against fraud, and the company may insist upon prompt action by the assured. But when, as in this case, the matter was left ■open, under the obligation expressed in the policy without more, we cannot, under the circumstances disclosed, say, as matter of law, that the delay was unreasonable.

We think, also, the insistence of the company upon the right to examine the plaintiffs under oath upon matters relating to the loss, made in the letter of February 20,1884, and their subsequent ■examination by the defendant, was a waiver of any objection founded on the delay in serving proofs of loss. It is claimed that the demand contained in the letter was conditioned upon the assent of the plaintiffs that such examination should not be construed as a waiver by the company of the objection. The letter is at least equivocal. The plaintiffs could not safely refuse to submit to an examination, and the letter does not state that the company would dispense with the examination in case the plaintiffs did not acquiesce in the condition.

The points as to the proofs of loss, and the exception of the defendant based thereon, are not, we think, tenable.

The remaining question relates to the claim that the plaintiffs, at the time of the insurance and of the fire, had no insurable interest in the building, which was, in part, the subject of the insurance. It is doubtless true that the State Bank of Elizabeth, the vendor in the contract of sale to the plaintiffs, had no legal title to the property embraced therein. It was, however, the beneficial owner. The bank owned the mortgage and bid off the property on the foreclosure in 1877, but its agent at the sale, under advice of its attorney, directed the conveyance to be made to Mr. Kean, the president of the bank, because of the statute of Pennsylvania which prohibited any foreign corporation from acquiring and holding any real estate within the commonwealth “ directly in the corporate name, or by or through any trustee or other device whatsoever, unless specially authorized to hold such property by the laws of this commonwealth.” Purdon’s Dig., § 56, p. 292.

Mr. Kean paid nothing for the property and acknowledged that it belonged to the bank, and never made any claim to it whatever. He knew of the negotiation between the bank and Carpenter for the sale and purchase of the property, and advised and -consented to the contract by the bank, and was fully acquainted with the fact that Carpenter was paying the purchase money of the land in reliance upon the ownership of the property by the bank. The bank, Carpenter and Kean acted in good faith, supposing that the bank held the legal title to the land. The officers ■of the bank had forgotten that the title had been taken in Kean’s name, and for this reason the contract with Carpenter was made in the name of the corporation.

We deem it unnecessary to go into the abstruse questions which have been argued at the bar as to the legal and equitable right to the land, as between the bank and Kean, growing out of the conveyance to the latter of the legal title on the foreclosure sale. Assuming (but without deciding) that the bank could not, in view of the Pennsylvania statute, have established a trust in its favor, enforcible against Kean, or compelled him to convey the legal title to the corporation, yet it is we think very plain that as between Carpenter on the one side, and the bank and Kean on the other, Carpenter, oiiAthe performance of his contract, could have maintained a suit in equity to compel the bank and Kean to convey the land. Kean would be bound by the plainest principles of equity and justice to make the contract good, which was entered into with his advice and upon which Carpenter had advanced his money. It would be no answer that Kean did not act mala fide, but supposed that the legal title was in the bank. He stood by and encouraged the sale and knew of the payment of the purchase money by Carpenter in reliance upon the right of the bank to sell the property. Storrs v. Barker, 6 Johns. Ch., 166; Continental Nat. Bank v. Nat. Bank of Commonwealth, 50 N. Y., 576; Thompson v. Simpson, 128 id., 270; 40 St. Rep., 164. His mistake prej udiced no real right or equity in the land. He asserted none therein, and now acknowledges that the bank is entitled to the benefit of the policy.

The principle of equitable estoppel applies with persuasive force against Kean, preventing him from asserting as against Carpenter any right in the land, and a court of equity would require him to convey so that the just expectations of Carpenter should not be disappointed. Carpenter had therefore an insurable interest in the property.

The questions decided dispose of all the material points in the appeal.

The result is that the judgment should be affirmed, with costs.

All concur.


author: Gray, J.

text:
    Henry Fera, Resp’t, v. Daniel H. Wickham et al., App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Set-off—Assignment for creditors.
    Where a party asks to have set off, against a demand upon him, held by an assignee for the benefit of creditors, a claim against the insolvent, it will be allowed, provided his was a claim upon the estate due when the assignment was made.
    2. Same.
    Plaintiff drew a draft on defendants, payable November 6, 1890, which was accepted by them. He afterwards became indebted to them on a note payable June 9, 1891, and an account, and they made an assignment in October, 1890, for the benefit of creditors. Held, that as against the assignee plaintiff was not entitled to set-off the unmatured acceptance as against his note as there was no cause of action in favor of the plaintiff at the time of the assignment.
    Appeal from judgment of the supreme court, general term, first department, affirming interlocutory judgment overruling demurrer to complaint.

      Hess, Townsend & McClelland, for app’lts; Sam'l J. Goldsmith, for resp’t.

       Reversing 40 St. Rep., 644.

   Gray, J.

—The firm of Wickham & Co., having become insolvent, made a general assignment for the benefit of their creditors. On October 27,1890, at the time of this assignment, the plaintiff held their unmatured acceptance of a draft to the amount of $1,390. 60, for goods sold. The assignee became, by the assignment, the holder of a promissory note made by the plaintiff to Wickham & Co.’s order for $536.25. The accepted draft was payable November 6, 1890, and the plaintiff’s note was payable on June 9, 1891. The plaintiff has brought the present action to secure an equitable offset of the debt to him from the insolvent estate as against the debt due by him. Upon the defendants’ demurrer to his complaint, the courts below have held the relief within the power of a court of equity to award and, therefore, gave plaintiff judgment. ' In the opinions delivered at the special and general terms of the supreme court, the learned justices relied upon the decision in Rothschild v. Mack, 42 Hun, 72; 3 St. Rep., 471. The opinion of the general term of the fifth department in that case was affirmed by this court, as to the correctness of the conclusion arrived at. 115 N. Y., 1; 23 St. Rep., 922. But the appeal was not decided in this court on the ground taken by the general term in their opinion, but solely because a cause of action on contract did exist in the complainant’s favor against the insolvent assignor at the time of the assignment. The learned justices below, in the present case, have felt themselves constrained, apparently, to follow the decision in the fifth department; inasmuch as in this court, in the Rothschild case, the correctness of the general term views was not expressly denied.

It must be conceded that the opinion of this court in. the Rothschild case seemed to leave open for further discussion the question passed upon by the general term, namely, of the right to an equitable offset where, at the time of the assignment, the party was only contingently liable. It was the opinion there that the general rule in equity should obtain, if the liability of the insolvent estate had become actual prior to the time of the maturity of the demand due to the estate. This view, however, I think to be untenable, if we are to be guided by the authority of previous decisions in this court. In the Rothschild case neither plaintiffs’ claim on the note, nor the assignee’s claim against them, were due at the time of the assignment; but, because of the fraud practiced upon the plaintiffs, in the manner in which the moneys were obtained from them, it was held that a cause of action in assumpsit arose at once in their favor for the recovery back of the moneys. It existed the moment the insolvent assignors obtained the money; and being a proper subject of set-off in any action which might have been brought by the parties against whom it existed, it could properly be offset against the debt due from the plaintiffs to the assignee pro tanto.

The subsequent case of Richards v. La Tourette, 119 N. Y., 54; 28 St. Rep., 609, was that of an action by the assignee of an .insolvent firm to foreclose a mortgage. The defendant demanded that the assignee set off in reduction of his indebtedness upon the mortgage the indebtedness due from the assignors to him. The particular and only question presented was whether, as the defendant’s debt upon the mortgage was not due at the time of the assignment, the debt owing to him from the assignors, and which was due at that time, could be equitably applied in reduction of the mortgage debt. The right to the offset was upheld because of the immateriality of the fact that the debt owing to the insolvents was not due when the assignment was made. The debtor to the insolvents could elect to treat his debt as presently due, and waive any defense on any such ground.

Where this case differs from the Rothschild case is that there was no cause of action in favor of the plaintiff at the time of the assignment. The question here is whether the plaintiff has an equitable right to an offset of his demand against the insolvent estate, which had not matured at the time of the assignment; but which did subsequently mature before the demand held by the assignee against him matured. In the solution of this question we might find some embarrassment in endeavoring to reconcile expressions of opinion by the judges in the early cases, and, after a very careful consideration, I am disposed to hold that by an assignment in trust for the assignor’s creditors what natural equities previously existed become suspended by an intervention of the rights of other creditors. The natural equity in offsetting cross demands, which had its rise in the rules of the civil law, was soon adopted by the court of chancery in cases where, from the situation of the parties, cross actions at law were inadequate. Hence, if one of the parties should become insolvent, the insolvency was recognized as presenting a .case for equitable interference. But the rule was limited in its application to cases where the equitable rights of others were not interfered with. Thus, in Lindsay v. Jackson, 2 Paige, 581, the bill was filed to restrain the defendants from negotiating complainant’s notes to others and for a set-off of cross demands, and the insolvency of the defendants was considered a sufficient reason for permitting an offset of their debt to complainant as against the complainant’s debt to them.

But in Chance v. Isaacs, 5 Paige, 592, which was a similar action to that of Lindsay v. Jackson, the relief of set-off was denied by the vice chancellor because an assignment had been made, under which the creditors of the insolvent party acquired an interest in the complainant’s notes before his demand against the defendants had matured. His decree was affirmed. It is true-that the chancellor, in that case, thought that the right of set-off would have existed although the defendant’s note, upon which complainant was liable as endorser, was not due at the time of the assignment, if the complainant had held it He regarded the fact that complainant did not hold the note at that time as precluding him from demanding a set-off.

The remark referred to in the opinion in Chance v. Isaacs does not seem to me to have been regarded as controlling in later cases. It was unnecessary to the decision there and I think we must refuse to be guided by it.

In Bradley v. Angel, 3 N. Y., 475, the complainants owed defendant’s testator for goods purchased. They held his notes, falling due at times subsequent to his decease. A suit was commenced against them for their indebtedness to the estate, and they commenced this action to secure an offset of the testator’s unmatured notes as against their present indebtedness and to restrain the action at law. Judge Gardiner, in holding that a set-off could not be permitted, on the ground that the testator’s contract could not be changed by compelling payment before maturity, assigned as a reason that it would be to the prejudice of other creditors. Thus the plaintiffs were obliged to pay their indebtedness to the estate, though holding the testator’s notes, which they were nob-permitted to have set-off.

In Myers v. Davis, 22 N. Y., 489, the action was by an assignee, to recover on a claim against the defendants for goods soldi to them by his assignors. At the time of that transaction the defendants were manufacturing certain wares upon the assignor’s'' order and at the time of the assignment the order was yet unfilled-When finished the price exceeded the amount which they owed1 to the insolvent estate. The demand against them, because of the term of credit on which the goods had been sold to them, did not become due until sometime after they had filled the order of the assignors and had become entitled to be paid. The defendants asked to have allowed, upon what the assignee claimed from them, the amount of the claim which they held against the estate in his: hands. A set-off was refused and Judge Denio, after remarking: that there was no relation between the claims of the respective-parties, other than that which always exists between persons having reciprocal demands against each other, stated the rule thus “ That when such claims exist in a perfect condition at the same-time, either party may insist upon a set-off. So, where the one - claiming a set-off has a demand against the other presently payaable, and the other party is insolvent, the former may claim to have the set-off made, though the demand of his adversary against him has not become payable. But if, before the demand of the party claiming the set-off becomes mature, the opposite claim has been assigned, whether the assignment carries the legal, or only an equitable title, the right of set-off no longer exists.”

In Martin v. Kunzmuller, 37 N. Y., 396, the action was by an assignee to recover for goods sold by the assignors and the defendants were not permitted to offset the amount of a note of the assignors held by them and which matured after the assignment.. Davies, Ch. J., in his opinion in the case, held, on the authority of Myers v. Davis, that “the debt not matured could not be the subject of a set-off against the plaintiff.” Judge Davies, in support of his opinion, refers to Chance v. Isaacs, supra, but only to-the vice-chancellor’s decision; regarding the decision of the-chancellor on appeal as the mere affirmance of the decree. The point, as I take it, in the vice-chancellor’s opinion, and as Judge Davies also seemed to consider, was that the creditors under the assignment had acquired an interest in the complainant’s notes-before he had become liable on the assignor’s note. The principle upon which the decisions were based was, as stated in Judge-Barker’s opinion in Martin v. Kunzmuller, that the assignee takes-the contract assigned to him subject to the right of set-off which the debtor had against it at the time of the assignment. In other-words, if there is no right of set-off when an insolvent assignment is made, it cannot arise afterwards in favor of a creditor,. Cross-demands, which do not mature until after such an assignment, could not have been the subject of set-off when the assignment was made; for a demand in presentí is necessary to an allowance by way of set-off.

I think the logical and natural extension of the principle of the decision in Myers v. Davis is authoritative in the decision of the present case. The right of set-off must attach at the time of the making of the assignment. It cannot arise afterwards, for the reason that the claim in favor of the estate has passed to the assignee, and to allow a set-off would be to the prejudice of other creditors. I think the principle to which we should adhere is this : when a party asks to have set-off, against a demand upon» him held by an assignee for the benefit of creditors, a claim against the insolvent estate, it will be allowed, provided his was .a claim upon the estate due when the assignment was made, upon the ground that by reason of the existence of cross-demands at the time of the assignment, which were due (or might have been due at the creditor’s election), an equitable adjustment by set-off is made without interfering with the equities of others. But, after the estate has passed to an assignee, upon a trust to hold for .and to distribute among creditors, the former and natural equity •disappears in superior equities vesting in the general body of ■creditors. They are then interested in having equality of distribution, and if a creditor, who, when the assignment was made, had no right to any offset, may be allowed it afterwards, he gains a preference. By the intervention of the rights of third persons, under the assignment, the equities change with the change in the situation of the original parties, to the misfortune of the creditor holding the demand against the insolvent estate, but, nevertheless, in accordance with equitable principles, as I deduce them from the décisions.

The order and judgment below should be reversed, and judgment should be ordered for the defendants upon the demurrer dismissing the complaint of the plaintiff, with costs in all the courts.

All concur.


author: Peckham, J.

text:
    C. Gray Bolton et al., App’lts, v. William Schriever et al., Resp’ts.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Surrogates—Jurisdiction of—Inhabitancy of testator.
    In an action of ejectment, defendant claimed title as devisee under a will proved in 1841 before the surrogate of the county of New York, plaintiffs, the heirs at law, claiming that testator died in Columbia county, and was not an inhabitant of the former county, and that consequently the surrogate had no jurisdiction to take proof of the will or grant letters testamentary. Held, that the surrogate has power and is bound, before admitting a will to probate or issuing letters, to decide upon the fact of inhabitancy, and where no contest is made and no evidence upon the subject of the inhabitancy of the testator, except the sworn allegation of the petition, the surrogate may rely upon the fact so stated, and his decision is conclusive, subject only to attack by a direct proceeding to review it.

      S. Same—Costs—Extra allowance.
    Plaintiffs were granted a new trial upon payment of costs under g 1525 of the Code, which included an extra allowance granted by the court. An extra allowance was also granted upon the second trial. Held, no> error.
    Appeal from judgment of the New York superior court, general term, affirming order of special term.

      Edward C. Perkins, for app’lts; Edward W. S. Johnston, for resp’ts.
   Peckham, J.

—This is an action of ejectment to recover possession of a lot of land on Tenth avenue, between Thirty-third and Thirty-fourth streets, in the city of New York. The land belonged at the time of his death to one Theodore B. Talmadge, who died in January, 1841. Mr. Talmadge is the common source of title, the plaintiffs claiming as his heirs at law, while the defendant claims through his will, which in May, 1841, was proved before the surrogate of the county of New York, and letters granted to the executor named therein. It is claimed by plaintiffs that Mr.. Talmadge died in the county of Columbia, and that at the time of his death he was not an inhabitant of New York county, and the’ surrogate of that county had no jurisdiction to take proof of the*. will or to grant letters testamentary thereon, and as there was no-other proof of the execution of the will, the defendants made out. •no title to the land, and the plaintiffs were entitled to recover it. as heirs at law of Talmadge. There was a hearing before the New York surrogate and a judicial investigation, and the result was the; judgment or decree admitting the will to probate. The infant-daughters of the testator appeared on this investigation by guardian appointed by the surrogate. This judgment, now over fifty years old, is assailed by the plaintiff, and if it can be successfully attacked in this collateral manner, it may follow that the defendants by reason of this great lapse of time will have no means of proving the will, and thus will have no defense to interpose to* the plaintiffs’ claim, although they have relied upon the sufficiency of a judgment over half a century old decreeing that the will of Mr. Talmadge was properly proved, and under which their mediate grantor (Mr. Talmadge’s executor) had power to convey the’ land in dispute.

The petition of the executor named in the will to the surrogate’ of New York alleged that the deceased was at or immediately previous to his death an inhabitant of the county of New York, by means of which the proving of the will belonged to such surrogate.

The surrogate in admitting the will to probate and issuing letters testamentary to the executor, in effect decided the fact of inhabitancy, for it was a fact necessary for the surrogate to decide before admitting the will to probate or granting letters, and his decision of that fact based upon evidence having a legal tendency to support it ought, it would seem on general principles, to stand until reversed or set aside, even though it were erroneous.

Much of the general importance which might otherwise attach to the decision of this question is taken from it by reason of legislotion upon the subject. In 1870 an act was passed which applied to judgments of surrogates’ courts in New York county, and in 1880 a similar act was passed in regard to those courts in all the other counties of the state. Chap. 359 of the Laws of 1870; Code of Civ. Pro., § 2473. These acts provided in substance that the objection to the jurisdiction of such judgments should not be taken •collaterally.

We are of opinion that in a case like the present the same •rule obtains which has been authoritatively declared as to future ■cases by the statutes cited. Under these circumstances we do not feel called upon to enter into any detailed and extended discussion of the grounds for our decision. It is unnecessary to go as 5. far in order to uphold the decision of the courts below as the court went in the decision of the first Roderigas case, 63 N. Y., 460. This case differs from that in the main and important fact that there was here an estate of a deceased person to administer upon. Mr. Talmadge died in the state of New York and at the time of his death he was an inhabitant thereof. In the Roderigas case letters were issued to an administrator upon the estate of a living man, but who was in effect declared by the judgment to be dead.

We think that where the individual died'an inhabitant of the state, by reason of which there was in fact an estate to be administered upon, and the only question is which of the surrogate’s courts should act, there is in that case jurisdiction over the subject matter, that is, over the administering upon the estate of a deceased person dying an inhabitant of the state, and which surrogate is to exercise such jurisdiction depends upon the fact as to which county deceased was an inhabitant of at the time of his death.

The decision of such question where evidence is given and upon a hearing of the parties ought to be, and we think is, conclusive upon any collateral attack. Under our statute as to proof of wills, although it does not in terms provide that the petition shall state, or that the surrogate shall inquire and decide as to the fact of inhabitancy, yet we think the fair implication arising from a perusal of the whole statute upon the subject is that the surrogate has power and is bound before admitting the will to probate 'or issuing letters to institute the inquiry and to decide upon the fact of inhabitancy. Laws of 1837, chap. 460, §§ 4, 5, etc.

As the surrogate is directed to inquire as to the names and places of residence of the heirs of the testator, the implication is a necessity that he must first inquire whether there was a testator. Within the meaning of this statute there could be no testator if there were no deceased person, neither could there be any heirs of one who was then alive. The surrogate is to take proof of these facts where the testator died an inhabitant. Section 1 of ■ above cited act. He must, therefore, as part of his statutory duty inquire as to that fact of inhabitancy before taking the proof of the will.

Another statute authorizes the surrogate to issue subpoenas and take testimony in all matters material to any inquiry pending in his court. 3 Rev. Stat., 221, § 6. The duty to investigate anil decide upon the fact of inhabitancy is necessarily and naturally to be implied from the whole provisions of the statute relating to wills and their probate, and such duty is to be performed before the will is admitted or letters issued. If no contest is made, and there is no evidence upon the subject of the inhabitancy of the testator one way or the other except the sworn allegation in the petition, I do not see why the surrogate may not rely upon the fact so stated. Whether, when the fact thus appears in the sworn petition addressed to the surrogate, such fact shall be re-sworn to by the petitioner or some one else upon an oath administered by the surrogate himself, is matter which, as it seems to us, is not of a jurisdictional nature.

The surrogate may regard the oath taken to the petition as sufficient prima facie evidence, although the statute does not in terms require the fact of inhabitancy to be stated in the petition. If it be so stated and sworn to and no evidence is offered on the other side, and no issue raised as to the truth of the allegation in any manner or form, the decision of the surrogate should be regarded as conclusive, subject only to attack by a direct proceeding to review it. It might happen that where there is evidence pro and con the decision would appear to be erroneous, and for that reason it ought to be reversed, but unless a direct attack be made upon it, the judgment should remain. This is upon the principle that the surrogate must decide upon some evidence the fact of inhabitancy before he can go further, and when he does so| decide, although erroneously, the decision must stand until re-« versed.

The nature of a judgment which admits a will to probate is somewhat similar to that of one in rem. The res which the court takes into its hands for purposes of administration as representative of the state is the property which was once possessed and owned by the deceased, who died an inhabitant of the state. Civilized states have for generations past recognized their obligations to specially protect that kind of property. That obligation arises the moment the death occurs. The obligation assumed has been not only that of protection of the property, but also that of the distribution thereof to those who are living and who come within the rules of law governing the subject. How great the right of testamentary disposition should be and under what rules and regulations it should be permitted, are questions which have been differently decided by different nations, and by the same nations at different times. Such rights are matters of municipal regulation. The right to inherit from, or to receive by gift under the will of a deceased person is recognized and protected by the state, and from the fact of such recognition and protection the state owes the duty to see to it that the estate of a deceased person shall pass in accordance with the law which obtains in the state when the death occurs.

To prevent contention and to achieve a peaceful distribution of the estate under the rules of law- and to protect the rights of the creditors of the deceased, all civilized states have created tribunals of a judicial nature, whose function and duty it is to represent and exercise the powers of the state in the course of administration and whose judgments determine the rights of the respective parties interested in the property as such rights are made to appear. The general jurisdiction over matters of this nature belongs to the state itself by reason of its general sovereignty. The practical exercise of the jurisdiction is vested in the so-called courts of probate or surrogates’ courts.

In construing the language of the statute creating such courts the fact must continually be borne in mind that the state is creating a tribunal or tribunals for the purpose of fulfilling its .general obligations to all its inhabitants to protect and distribute, according to law, that which was once the property of one ■of their own number. That obligation is as broad as the sovereignty of the state itself. In the organization of the tribunals which are to exercise this jurisdiction, although the language of the statute may create a separate and distinct tribunal for each county in the state, and upon certain facts grant jurisdiction to one of them to the exclusion of all others, yet the facts upon which the jurisdiction is given to the court of one county instead of to another are merely incidental, partaking somewhat of the character of matters of procedure, the main fact being the actual death of an individual who at the time of his death was an inhabitant of the state. That is the jurisdictional fact upon the existence of which is founded the duty of the state to protect and distribute the property according to law. Whether one or the ■other of the surrogates’ courts in the various counties shall administer upon the estate, and thus fulfill the obligation which lies with the state itself, is a question which the legislature has provided for and it depends, among other things, upon the fact of inhabitancy. This fact the surrogate to whom the matter is presented must decide, and if he decide that it exists, and upon evidence which legally tends to support his decision, under such ■circumstances we think it ought to stand until reversed. This is believed to be the general role.

It is a matter of very trifling importance, except upon the mere question of convenience, which of such surrogates’ courts shall take the proof as to the due execution of the will, and grant letters testamentary thereon. For the purpose of the orderly administration of the estates of deceased persons who died inhabitants -of our state, the legislature has provided certain rules governing the subject, and has also provided certain conditions upon which the power of a surrogate to take jurisdiction of the matter depends ; the subject matter, however, of the jurisdiction is the administration of the estates of deceased persons, and over this subject matter the state has granted to the surrogate of each county general jurisdiction. It is to be exercised upon various conditions, as was said by Church, Ch. J., in the second Roderigas case, 76 N. Y., 316, dependent upon the residence and the like, and the decision of the surrogate of one county after a hearing of the parties upon the question whether the case calling for the exercise of the jurisdiction of his court or the surrogates court of some other county exists or not should be conclusive in all collateral proceedings. The jurisdiction to administer is bestowed upon each surrogate, to the exclusion of all others, where the facts exist which are named in the statute. It is granted to him, however, out of the general and complete jurisdiction resting with the state over the entire subject of administration upon the estates of deceased inhabitants, and that general jurisdiction has been exercised by the state in the creation of a tribunal in each county for such purpose of administration, and when the question of jurisdiction arises before one of such courts where the deceased died an inhabitant of the state, and the right of administration attaches to the surrogate's court of some county, it must, in the nature of things, be decided by the surrogate before whom it comes, and being matter incidental only in its nature, the decision of the surrogate, founded upon some evidence, must be conclusive, even though erroneous, except upon a direct review. I am aware that much has been written by the courts of the various states upon these questions of jurisdiction of courts of probate, and the conclusiveness of their judgments. Decisions both ways have been reached. Criticisms have also been made in regard to the decision of the first Roderigas case. It is not needful to refer to them, or to again renew the discussion, which, as to this state, was ended by the decision in that case. The question is alluded to, and the various cases cited in the first volume of the Treatise on the American Law of Administration by J. G. Woerner, §§ 208 et seq., and notes. ^

There is in the nature of things a broad distinction between the case of the granting of letters of administration upon the estate of one not in fact dead, and the granting of letters upon the estate of one who was at the time of his death an inhabitant of the state, but not of the county where the will was proved, although the surrogate upon some evidence erroneously decided that he was.

It is quite unnecessary and wholly unprofitable to enlarge upon it here.

We do not intend by this decision to attack the principle or to shake the authority of the first Roderigas case (63 N. Y., supra), for we simply say it is not necessary to here go so far as that case goes. In the opinions delivered in the two Roderigas cases will be found much of the learning on this subject and a citation to most of the decided cases then reported and bearing upon the question.

In this record we think it appears that there was evidence enough to call upon the surrogate of Hew York to decide upon the question of the inhabitancy of Mr. Talmadge, and the surrogate by admitting the will to probate and issuing letters testamentary did in fact decide that Mr. Talmadge was at the time of his death an inhabitant of Hew York county, and this conclusion must in such an attack as this be a bar to a reopening of that question. This view of the main issue involved in this case calls for the affirmance of the judgment.

In Bolton v. Jacks, 6 Robt., 166, a contrary result was arrived. at by the superior court of N"ew York in a very elaborate and learned opinion. With many of the views therein expressed as to the right to question a judgment rendered without jurisdiction we entirely concur, but for the reasons above given we think they are inapplicable to the particular facts of this case.

Upon this appeal the plaintiffs seek to review the order granting an extra allowance of costs to the defendant. The ground of the appeal is that a new trial herein was taken by plaintiffs under the section of the Code, § 1525, granting such right as of course upon payment of costs, and that included in the costs which plaintiffs paid when availing themselves of the right to a new trial was the amount of an extra allowance granted by the court after the former trial. The plaintiffs contend that but one extra ■allowance can be collected .in .the same action. This precise question has already been determined adversely to the plaintiff’s view in the case of Wing v. De La Rionda, 131 N.Y., 422; 43 St. Rep., 305.

We have considered the other questions raised by the appellants, but we do not think that any error prejudicial to them appears in the record. The whole judgment must be affirmed, with costs.

All concur, except Gray, J., taking no part.


text:
    Mary H. Barrett, Resp’t, v. William H. Palmer et al., App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

    Jurisdiction—Of state courts over lands ceded for Brooklyn navy yard.
    As nothing has been done by Congress to displace the laws of this state •and the jurisdiction of its courts in regard to private rights and remedies with respect to the lands ceded for the purpose of a navy yard in Brooklyn, these matters remain unaffected by chapter 355, Laws 1853, and the state courts have jurisdiction of an action for trespass upon lands which the federal authorities had suffered to be used by the city for a market.
    Appeal from judgment of the city court of Brooklyn, general term, affirming judgment in favor of plaintiff entered on verdict, and order denying motion for new trial.

      M. L. Towns and Henry C. De Witt, for app’lts; Hugo Hirsch, for resp’t.

       Affirming, 40 St. Rep., 700.

   O’Brien, J.

—The plaintiff recovered a verdict against the defendants in an action alleging a trespass. The facts are undisputed that in February, 1889, the defendant Palmer leased to the plaintiff certain booths or market stands in the Wallabout Market, Brooklyn, for two years, and that the plaintiff had paid to him the rent reserved by the lease up to July, 1889. _ That in April, 1889, the defendants, acting together without right, took possession of the stands, ejected the plaintiff therefrom and destroyed or converted to their own use certain fixtures and other property, and have ever since excluded the plaintiff _ from Pos" session. There can be no doubt that the general jurisdiction of the city court of Brooklyn, where the trial was had, extends to actions of trespass such as this. Code, §§ 263, ■3343. The only question raised at the trial that is now open for review would apply to any other state court as well as to the one in which the trial took place. The locus in quo was originally a part of the Brooklyn navy yard, jurisdiction of which had been ceded to the United States by chapter 355 of the Laws of 1853. The federal authorities subsequently leased a part of the land acquired under this act to the city of Brooklyn for a market, or at least permitted the city to use it for that purpose. The authorities of the city leased several market stands to the defendant Palmer, and he sub-let some of them to the plaintiff. At the close of the evidence the counsel for the defendants moved to dismiss the complaint on the ground that the trespass complained of was upon territory or a reservation belonging to the United States, and that the court had no jurisdiction of the action. This motion was denied and the defendants excepted. The verdict of the jury was $1,520, and while the general term might very properly have exercised its power to reduce it, we cannot. There was evidence for the consideration of the jury, and under such circumstances this court will not attempt to revise their action.

There can be no doubt that an action of trespass quare clausum fregit is local in its character and the courts of this state have no jurisdiction when such trespass is committed upon lands in another state. Dodge v. Colby, 108 N. Y., 445; 18 St. Rep., 848; Cragin v. Lovell, 88 N. Y., 258; American Union Tel. Co. v. Middleton, 80 id., 408.

The jurisdiction of a superior city court is always presumed (Code § 266), and by subdivision three of § 263 of the Code the city court of Brooklyn has jurisdiction of all such actions as this where the real property is situated within the city, or where the defendant is a resident of the city, or where the summons is personally served upon the defendant therein. It is certain that all these conditions exist in this case. The contention of the learned counsel for the defendants must therefore rest upon the proposition that the state has no power to confer jurisdiction upon its courts to redress injuries of this character when committed upon lands acquired by or ceded to the United States. The power of the federal government to acquire lands within a state for governmental purposes cannot be so exercised as to dismember the state and separate a part of its territory from its jurisdiction. When the lands are acquired by the exercise of the power of eminent domain, the United States becomes simply an ordinary proprietor, and the jurisdiction and authority of the state over the lands remain unchanged except so far as their use for the purpose of executing the powers of the general government necessarily remove them from the domain of state authority.

But it has been held that the state may cede to the. general government political jurisdiction over such lands and then congress has the power to legislate in regard to them. We are not disposed to hold that even then the judicial power of the courts of this state would be powerless to redress private injuries committed thereon or that the injured party would be compelled to seek justice in some other jurisdiction. The state did cede such political authority to the federal government with respect to the lands in question, with certain reservations. Congress has not, however, made any new regulations touching the administration of justice in civil cases with respect to actions arising therein, and until some such regulations have been made the municipal law of the state for the protection and enforcement of private rights through the courts remains unchanged. C., R. I. & P. R. Co. v. McGlinn, 114 U. S., 542; F. L. R. Co. v. Lowe, id., 525.

The cession of territory by one sovereignty to another does not abrogate the laws in force at the time of the cession for the administration of private justice. Rot at least until the new sovereignty has abrogated or changed them do such laws cease to operate, except possibly so far as they may be in conflict with the political character; institutions and constitution of the government to which the territory is ceded. Mr. Justice Field in the supreme court of the United States in the case of C., R. I. & P. R. Co. v. McGlinn, supra, stated the rule of international law on this subject as follows: “ It is a general rule of public law recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country, that is, the laws which are intended for the protection of private rights, continue in force until abrogated by the new government or sovereign.”

As nothing has been done by congress to displace the laws of this state and the jurisdiction of its courts in regard to private rights and remedies with respect to the lands ceded for the purpose of a Ravy Yard in Brooklyn, these matters remain unaffected by the act of cession. The judgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.