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Morris ALPERSTEIN, Respondent, v. NATIONAL SURETY COMPANY, Appellant.

Court of Appeals of New York. March 27, 1928. Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (222 App. Div. 664, 224 N. Y. S. 744), entered November 23, 1927, affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for summary judgment. The action was to recover upon an indemnity bond filed with the State Tax Commission pursuant to chapter 612 of the Laws of 1922 requiring such a bond from those engaged in the business of carrying or transporting passengers for hire in the city of New York and conditioned that upon default of the principal it would pay any judgment recovered against him for death or injury to property in the operation of a motor vehicle. Plaintiff was struck and injured by the motor vehicle men

tioned in the bond and thereafter recovered judgment against the principal. Executions having been returned unsatisfied this action was brought against the surety on its bond. The defense was that chapter 612 of the Laws of 1922 was repealed by chapter 413 of the Laws of 1924, and that consequently the indemnity bond executed and filed pursuant to the former statute was canceled when the latter statute went into effect and that the defendant was thereafter relieved from any liability under said indemnity bond.

Thomas L. Walsh, of New York City, for appellant.

Benjamin Berinstein, of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

(248 N. Y. 1)

(161 N.E.)

In re JAMES' WILL. Court of Appeals of New York. April 3, 1928. 1. Payment 12 (5)-Payment of New York judgments in obedience to French decree operated as complete execution, though on payment date sum ordered paid in francs was less than original judgments in dollars.

Payment of New York judgments in obedience to French executory decree operated as complete execution, though on payment date the sum ordered paid in francs was less than the original judgments in dollars, where judgment creditors had asked the French court to direct payment at the rate of 13 francs to the dollar, and court had done so in compliance with request.

2. Payment 12(5)-Obligation in terms of country's currency takes risk of currency fluctuations.

An obligation in terms of the currency of a country takes the risk of currency fluctuations, and, whether creditor or debtor profits by the change, the law takes no account of it.

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Appeal from Supreme Court, Appellate Di vision, Third Department.

In the matter of the judicial settlement of the account of proceedings of Elizabeth Pratt de Gasquet James, as ancillary executrix under the will of Amadee de Gasquet James, deceased. A decree and order of the Surrogate's Court granting a motion of the ancillary executrix to declare satisfied a decree awarding certain sums to judgment creditors and vacating certain executions issued on said judgment, and an order denying a motion of David Keane, as receiver, for an order vacating and setting aside the previous order and decree were reversed by the Appellate Division on the law, on receiver's appeal

(221 App. Div. 321, 223 N. Y. S. 174), and judgments declared valid to the extent that they might remain unpaid, and the executrix appeals. Order of the Appellate Division reversed, and that of the Surrogate Court affirmed.

See, also, 128 Misc. Rep. 528, 220 N. Y. S. 177.

H. H. Breland and Emory R. Buckner, both of New York City, for appellant Elizabeth Pratt de Gasquet James.

C. Alexander Capron, of New York City, and David Kelly, of Brooklyn, for appellant Farmers' Loan & Trust Company, as general guardian, etc.

J. Noble Hayes, of New York City, for respondents George Pratt de Gasquet James and Pauline Andree de la Mettrie.

O'BRIEN, J. Amadee de Gasquet James died in France in 1903. By his will he gave to his wife, Elizabeth Pratt de Gasquet James, all his property situated in Europe and to his four children all his property situated in the United States. He appointed his wife executrix, and in 1904 the surrogate of Ulster county in this state granted ancillary letters testamentary. November 3, 1917, a decree was entered in the Surrogate's Court charging the executrix with the sum of $65,133.25 and interest from March 21, 1915, in favor of the testator's son, George W. Pratt de Gasquet James and the same sum in favor of the testator's daughter, Pauline Andree de la Mettrie. Executions were returned unsatisfied. The son and daughter, citizens of the French Republic, on October 5, 1922, instituted in France a proceeding against the executrix, their mother, a resident of that country, to enforce there the judgment obtained in Ulster county. The proceeding in France resulted favorably to the judgment creditors, and in December, 1925, the executrix made payment as directed by the French courts. After compliance with the French decree, the executrix applied to the surrogate of Ulster county for an order vacating the judgment of November 3, 1917, and satisfying it of record. His order of February 7, 1927, so decreeing has been reversed by the Appellate Division, and the appeal is now here. The controversy arises from the fact that the payment in francs calculated as of the date of the institution of the French proceeding is worth less than the amount would be if calculated as of the date of payment and less than $65,133.25. We must determine the effect of the French judgment and of the judgment creditors' release.

The proceeding in the French courts assumed the form of an exequatur., The judg ment creditors' expert witness on French law

explains by affidavit in this proceeding that in France an exequatur is regarded as nothing more than an execution of a judgment rendered in a foreign jurisdiction. He states his opinion to be that only one judgment exists in favor of Georges de Gasquet James and Pauline Andree de la Mettrie, and that the effect of the French proceeding is merely an execution of that judgment obtained in Ulster county. The judgment debtor's expert witness also says that the American judgment is "made executory in France" by the French judgment. The mandate of the French court is that the "aforecited judgment shall be purely and simply executed in France, according to the law of procedure, in spite of opposition or appeal," and that "for its execution in France the debt in dollars shall be converted into francs according to the rate of exchange practiced on the Paris Bourse the day the exequatur was asked for, namely, on the 5th of October, 1922." The value of the Ulster county judgment, with deduction for partial payment previously made and with additions for expenses and interest was equal to 2,303,248.59 francs computed according to the rate of exchange at 13 francs to the dollar as of October 5, 1922. This precisely calculated sum was ordered paid and on December 15, 1925, the executrix paid it. Both expert witnesses concede that under French law the date for translating the American judgment from dollars into francs rested within the discretion of the French courts and that judicial power resided there to have fixed the date of payment rather than the date of the institution of the proceeding. Both testify the fact to be that it was at the request of the judgment creditors that October 5, 1922, was the date appointed by the court and both express the opinion that the creditors could have designated the date of payment as the time for translation.

[1, 2] The payment in obedience to the French decree on exequatur operates as a complete execution of the Ulster county judgment. The creditors selected that method to enforce their judgment and to obtain the money that was due. The executrix had obstructed payment in this country, and her son and daughter, despairing of success here, determined to invoke the laws of the country of which they are citizens and where they reside They elected their measure of value and medium of exchange. They made their choice of the date upon which the dollar should be converted into francs. When they instituted their proceeding to collect, they could not predict the time of payment, nor could they forecast the future rate of exchange. They asked the court to direct payment at the rate of 13 francs to the dollar, and the court con

sented. The franc fell to half its value and then the debtor, after years of dilatory tactics, hastened to comply with the order of the court and paid the judgment. The Judicial mandate on exequatur did not direct her to pay any specified number of dollars. It directed execution of the American judgment by the payment of 2,303,248.59 francs and not otherwise. The debtor has obeyed that command and has handed the last centime to her creditors. If the franc had risen to twice its value instead of shrunk to half she would have been bound by the same inexorable decree. She was obliged to pay that certain number of francs without regard to their value. After the translation of the judgment, her liability was in francs alone. Her creditors, misjudging the trend of currency values, selected an ill-fated time for the conversion of dollars into francs and their misfortune has chanced to enrich their adversary. The hazard was theirs and they lost. "An obligation in terms of the currency of a country takes the risk of currency fluctuations and whether creditor or debtor profits by the change the law takes no account of it. (Legal Tender Cases, 12 Wall. 457, 548, 549, [20 L. Ed. 287]). Obviously, in fact a dollar or a mark may have different values at different times but to the law that establishes it it is always the same." Deutsche Bank v. Humphrey, 272 U. S. 517, 519, 47 S. Ct. 166, 167 (71 L. Ed. 383). The American judgment has been executed in France exactly as the creditors demanded. It has, we think, been fully paid.

The Appellate Division supports respondents' contention that the judgment of November 3, 1917, has been only partially executed. That learned court holds that the judgment has been satisfied merely to the extent of the money actually received in American dollars. Its conclusion is based upon its interpretation of the release and satisfaction given by the judgment creditors. That instrument, after reciting in francs the total amount of the judgment plus interest and expenses, includes this statement:

"For which sum Mme. de la Mettrie and M. de Gasquet James give to Mme. de Gasquet James a good and valid release. It being expressly specified that the said release final as to its effect on all the property and securities which may exist in France, is not given except under the most express reservations of all audits, accounts and final judgments which may exist in America and of all the other sums which may be owing by Madame widow de Gasquet James to M. Georges de Gasquet James in virtue of other debts and judicial decisions.

By reason of the preceding payment Mme. de la Mettrie and M, de Gasquet James in waiving all their rights, actions, liens and hy

(161 N.E.)

pothecations, acknowledge pure and simple satisfaction and consent to the entire and final cancellation of all inscriptions and transcriptions of levy and of notice of levy upon the real property owned by Mme. de Gasquet James in France."

Respondents argue, and the Appellate Division accepts the argument, that this instrument was not intended fully to satisfy the American judgment but purposed merely to release the lien of the judgment upon Madame James' property in France and to reserve the right to collect the difference between dollars and francs on the value of the American judgment.

[3, 4] Both judgment creditors "give a good and valid release" for a sum in francs translated from the amount of the judgment in dollars, they "acknowledge pure and simple satisfaction," and consent to the cancellation of liens against the debtor's property in France. The main purpose of the proceeding was not to impose liens. The object was to collect the Ulster county judgment. The attachment of the liens was a subordinate detail designed to make the main purpose effective. Under French law, as stated by the opinion witnesses, the debtor could have caused the discharge of the liens by paying the amount of the judgment into court. So the consent to cancel does not indicate a mere partial payment or acknowledgment of a mere partial payment of the judgment. It reveals the fact that the creditors by agree ment, after payment and receipt of the full amount of the judgment, calculated as of a date selected by the creditors, performed an act into which they would otherwise have been coerced by judicial process. No longer could they threaten the debtor's French property. We think that the judgment creditors' reservations constitute nothing except an attempt to preserve rights which did not exist. The record does not inform us of any audits or accounts except those which were included in the final judgment of November 3, 1917. Such judgments or decrees as "may exist in America" are mandates issued to enforce that judgment. In so far as those judgments in the receiver's proceedings in this state remained unexecuted, they were merged in the French exequatur. Nothing was left for reservation. All had been extinguished when the 2,303,248.59 francs had been paid. The son, though not the daughter, attempted likewise to reserve "other sums which may be owing" to him by his mother "in virtue of

other debts and judicial decisions." We are not informed of the nature of these other sums. If the "judicial decisions" are intended to refer to those upon which the judgment of November 3, 1917, is based, we can do no more than to repeat that they cannot be the subject of reservation. The executrix, too, attempted in the release to make certain reservations. She assumed to reserve the right to object to the accuracy of the account and to the fixation of the rate of interest. Until this judgment, executory in France, shall be corrected by the French courts, it must stand. One party paid the judgment, the others accepted the payment, gave good and valid release, and acknowledged pure and simple satisfaction.

The order of the Appellate Division should be reversed and that of the Surrogate's Court affirmed, with costs in the Appellate Division and in this court.

CARDOZO, C. J., dissents, and votes for affirmance upon the ground that the French judgment was a security or form of execution for the enforcement and collection of the judgment recovered in New York; that payment of an obligation secondary and ancillary did not discharge the principal or primary obligation beyond the value of the foreign money at the time when payment was received; that appreciation of the franc between the date of the French judgment and the date of its discharge would not have involved the judgment debtor in any undue risk of hardship or injustice, since she was free at any time by payment of the New York judgment, the principal obligation, to compel the satisfaction of obligations that were collateral or secondary; and finally that the form of the so-called release, to which the judgment debtor was a party, is such as to justify a finding that by a bilateral agreement the payment of the French judgment was to be "final with regard to its effect on all the property and securities which may exist in France," but was to be accepted upon account in respect of any judgments recovered in America.

ANDREWS, LEHMAN, and KELLOGG, JJ., concur with O'BRIEN, J.

CARDOZO, C. J., dissents in memorandum, in which POUND and CRANE, JJ., con

cur.

Ordered accordingly.

(248 N. Y. 10)

sation, that he was going to sue third party unKAPLAN v. KAPLAN KNITTING MILLS, der Workmen's Compensation Law, § 29 (Con

Inc., et al.

Court of Appeals of New York. April 3, 1928. 1. Master and servant 398-Claim for compensation need be filed only with commissioner, and is sufficient if case is reasonably identified and claim made (Workmen's Compensation Law, §§ 18, 28).

Under Workmen's Compensation Law, § 28 (Consol. Laws, c. 67), claim for compensation, unlike notice of injury under section 18, need not be filed with employer but only with the commissioner, and need not contain facts required to be stated in notice of injury, but is sufficient if case is identified by designation or description reasonably certain and claim made for compensation.

2. Master and servant 398-Notice of injury served on commissioner may also contain claim for compensation (Workmen's Compensation Law, §§ 18, 28).

Notice of injury served upon commissioner as required by Workmen's Compensation Law (Consol. Laws, c. 67), § 18, may also contain claim for compensation required by section 28, since there is nothing in the law that requires two separate and distinct papers, or that they be phrased in any particular language.

3. Master and servant 398-Notice of injury and claim for compensation are sufficient when facts of injury are stated with reasonable certainty, and it is reasonably to be inferred compensation is claimed (Workmen's Compensation Law, §§ 18, 28).

Notice of injury and claim for compensation as required by Workmen's Compensation Law (Consol. Laws, c. 67), §§ 18, 28, respectively, are sufficient when facts of injury are stated with reasonable certainty, and it is also reasonably to be inferred that claim for compensation is being made.

4. Master and servant 359-Notice of election to proceed against third person may be given any time before award, providing claim has been filed (Workmen's Compensation Law, §§ 28, 29).

Under Workmen's Compensation Law, § 29 (Consol. Laws, c. 67), providing for election by claimant as to whether he should take compensation or pursue remedy against third party, notice of election may be given at any time before award is made by commissioner, and may be made, provided claim has been filed, long after year for filing claim as required by section 28 has expired.

5. Master and servant 398-Notice served upon commissioner by claimant that he is going to sue third party and claim compensation for deficiency only is sufficient "claim for compensation" (Workmen's Compensation

Law, §§ 28, 29).

Notice or paper served upon commissioner by person claiming to be entitled to compen

sol. Laws, c. 67), and claim compensation for deficiency only, is sufficient claim for compensation within meaning of section 28.

6. Master and servant 398-Notice containing requirements of notice of injury, providing it should not preclude action against third party and reserving right to compensation for deficiency, constituted "claim for compensation" (Workmen's Compensation Law, §§ 18, 21, 28, 29).

Notice served on commissioner containing all requirements of notice of injury under Workmen's Compensation Law, § 18 (Consol. Laws, c. 67), stating that it was given without prejudice to election to sue third party pursuant to section 29, reserving any right to compensation for any deficiency resulting after termination of action against third party, constituted "claim for compensation" within meaning of section 28, by virtue of section 21, providing that, in absence of substantial evidence to contrary, it shall be presumed sufficient notice of claim for compensation was given.

7. Master and servant 398-Notice which conveys to commissioner that claimant is claiming compensation is sufficient "claim for compensation" within meaning of statute (Workmen's Compensation Law, § 28).

Any notice which conveys to commissioner that claimant is claiming compensation and benefits of Workmen's Compensation Law (Consol. Laws, c. 67), § 28, is sufficient "claim for compensation" within meaning of such section.

Lehman and O'Brien, JJ., dissenting.

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Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding under the Workmen's Compensation Law by Sarah Kaplan, claimant, on behalf of herself and her infant son. Eugene Kaplan, for compensation for the death of her husband, Samuel Kaplan, opposed by the Kaplan Knitting Mills, Inc., employer, and the Maryland Casualty Company, insurance carrier. From an order of the Supreme Court, Appellate Division (221 App. Div. 484, 224 N. Y. S. 262), affirming the decision of the Industrial Board denying the claim of Sarah Kaplan, and reversing and remitting to the State Industrial Board its decision denying the claim of the infant son, claimant, the employer and insurance carrier appeal. Reversed, with directions, as to claimant Sarah Kaplan, and appeal dismissed as to the infant. See, also, 222 App. Div. 779, 225 N. Y. S. 844.

Samuel Weiss, Edwin L. Garvin, and Wallace T. Stock, all of New York City, for Sarab Kaplan.

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