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principal office is located. (Mar. 4, 1915, c. 8153, sec. 20, 38 Stat. 1185; June 5, 1920, c. 250, sec. 33, 41 Stat. 1007.)" 46 USCA § 688.

The appellant insists that "every seaman" includes every articled seaman of foreign ships entering our territorial waters; that this act applies to all foreign ships and their crews. He refers to the cases of Strathearn S. S. Co. v. Dillon, 252 U. S. 348, 40 S. Ct. 350, 64 L. Ed. 607, and Cunard S. S. Co. v. Mellon, 262 U. S. 100, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306. As stated in the opinion below, when Congress intended to apply the shipping act to foreign ships, it so stated. This was the basis of the Dillon de

rision. Section 31 of the act of 1920 (section 597 of Mason's Code), "Payment at ports," provided:

"That this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement."

Section 33 makes no such application, and it is natural to assume, therefore, that Congress did not intend to extend its provisions to foreign ships. The object of the act was to provide for the promotion and maintenance of the American Merchant Marine (Panama R. Co. v. Johnson, 264 U. S. 375, page 389, 44 S. Ct. 391, 68 L. Ed. 748), and I fail to see how the American Merchant Marine would be benefited by applying the act to the crews of foreign ships. Stewart v. Pacific Steam Navigacion Co. (D. C.) 3 F.(2d) 329, did not directly decide this point. See The Navarino (D. C., 7 F.(2d) 743.

However, even though the Jones Act does uot apply to foreign ships and their crews while in territorial waters, it does not follow

that longshoremen now considered to be American seamen are not within the purposes of the act, even when working on ships of other nationalities.

Longshoremen have become a class by themselves. They are connected with the local port, and do the work of loading and unloading of ships of all nationalities entering that port. They are seldom, if ever, employed by the ship or its owners, but are usually in the employ of a boss stevedore. Such was the case here. Resigno was employed by F. Jarka Company, Inc. This was a corporation doing stevedore business. Resigno had no relations whatever with the ship. It did not employ him, and owed him none of the duties arising out of the relationship of master and servant. F. Jarka Company, Inc., was the employer, and owed him the duties imposed by the common law upon masters. For a violation of those duties the shipowners

would not be liable. The Auchenarden (D. C.) 100 F. 895; West Indian & P. S. S. Co. v. Weibel, 113 F. 169, 51 C. C. A. 116; Imbrovek v. Hamburg-American Steam Packet Co. (D. C.) 190 F. 229; Dobrin v. Mallory S. S. Co. (D. C.) 298 F. 349, 352. The longshoreman thus employed by a stevedore may work on many ships in the course of a day. Would he change his nationality every time to that of the ship on which he happened to be working? Such a statement strikes us at once as unreasonable. In fact he is not a seaman, but merely classed as such to come within the benefits of the Jones Act. Resigno was a resident of New Jersey, worked in New Jerration doing stevedoring work. sey, and was employed by a domestic corpoHe never formed or became part of the crew of any ship, nor was he at the time in question employed by the ship or its owners. That he was classed as a seaman was due entirely to the intention of Congress as read into this provision of section 33, passed for the purpose of advancing the interests of the Merchant Marine, and to benefit American seamen. His work was so closely connected with shipping, and became so necessary to the loading and unloading of vessels, that an act passed in the interests of American seamen could hardly have been intended to exclude him. This is the ruling in the Haverty Case. International Stevedoring Co. v. Haverty, 272 U. S. 50, 47 S. Ct. 19, 71 L. Ed. 157. When Mr. Justice Holmes writes: "It is true that for most purposes, as the word is commonly used, stevedores are not 'seamen.' justice's stylistic way of saying that the Act But words are flexible," this is merely the of June 5, 1920, was intended to include longshoremen among the class to be benefited by the act. The work of longshoremen was described in Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U. S. 52, 62, 34 S. Ct. 733, 735, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157, as follows:

"Formerly the work was done by the ship's crew; but, owing to the exigencies of increasing commerce and the demand for rapidity and special skill, it has become a specialized service devolving upon a class 'as clearly identified with maritime affairs as are the mariners.'"

This class of specialized workers connected with maritime service is to be covered by the act of 1920 and included within its provisions; not merely those few members of the class who happen for the time being to be working upon American ships. Stevedores and longshoremen would receive very little benefit from this act of Congress were it so limited. Unless the act has this general application, a shift of a gang of longshoremen from a ship on one side of a dock to a ship

(162 N.E.)

on the other side might also shift the law of responsibility. Did Congress intend to make the law of responsibility for this class of workmen, or did it intend to leave it to these toilers by hand to select that law? The question must answer itself.

This application of the act of June 5, 1920, has been made in Zarowitch v. F. Jarka Co. (D. C.) 21 F.(2d) 187, where Judge Sheppard said:

"There was no privity between the ship and plaintiff, who was merely a harbor worker, in the service at the time of the Jarka Company, and it would seem a far cry, in view of these facts, to classify the plaintiff as a foreign seaman. The provisions of the Jones (Merchant Marine) Act, extending the rights and remedies applicable to seamen to stevedores, did not invest the latter with the character of seamen, but the statutes by judicial interpretation have been held to include marine workers, and the mere incident of the locus in quo of the work performed, though the test of admiralty jurisdiction in tort, does not change the status of such employee from stevedore to seaman.'

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This was followed by Judge Moscowitz in Mahoney v. International Elevating Co., 23 F.(2d) 130 in the District Court for the Eastern District of New York, November, 1927 (not yet reported), and by the Appellate Division, Second Department, in Muti v. Hoey, decided November 4, 1927, and reported in 221 App. Div. 688, 224 N. Y. S. 662. In Clark v. Montezuma Transportation Co., 217 App. Div. 172, 216 N. Y. S. 295, upon which so much stress is made, the plaintiff was part of the ship's crew, and was employed by the ship. He ceased for the time being to be an American seaman. See, also, the reasoning in Rainey v. New York & P. S. S. Co. (C. C. A.) 216 F. 449, L. R. A. 1916A, 1149.

In behalf of the respondent, the suggestion has been made that we are forced to narrow the application of this act to longshoremen working on American vessels, by reason of the section of the law relating to merchant seamen containing definitions, schedule, and tables found in section 713 of chapter 18, title 46, volume 3, Mason's United States Code Ann. 1926, p. 3279. It reads as follows:

"Definitions, Schedule, and Tables.-In the construction of this chapter, every person having the command of any vessel belonging to any citizen of the United States shall be deemed to

be the 'master' thereof; and every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the

same shall be deemed and taken to be a 'seaman'; and the term 'vessel' shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river, to which the provisions of this chapter may be applicable, and the term 'owner' shall be taken and understood to comprehend all the several persons, if more than one, to whom the vessel shall belong."

I do not read this section as containing any such limitation. The purpose was expansion, not limitation. It intended to include in the word "seamen" all those working on board an American ship who might not ordinarily be classed as seamen, such, for illustration, as an orchestra owner. The Sea Lark (D. C.) 14 F.(2d) 201, and employments there cited. It did not, however, necessarily exclude, or intend to exclude, all others from being American seamen. A sailor salvaging a foreign ship in domestic waters would not cease to be, I take it, when aboard such ship, an American seaman entitled to the benefits of the act. A longshoreman, now classed as an American seaman, does not lose the benefits of this act because he happens to be working for a few hours upon a German, instead of an American, ship. The act was for the benefit of the seamen, not solely for the benefit of the ship or the shipowners.

This Act of June 5, 1920, about which we are writing, section 33, gives to the personal representative of any seaman whose death has been caused by a personal injury an action for damages at law, with the right of trial by jury. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides, or in which his particular office is located. That such provisions did not exclude the jurisdiction of the Supreme Court of this state in a proper case, see Patrone v. Howlett, Inc., 237 N. Y. 394, 143 N. E. 232.

If the above reasons be sound, it follows that the judgments below should be reversed, and the motion for judgment on the pleading be denied, with costs in all courts.

POUND, ANDREWS, LEHMAN, KEL LOGG, and O'BRIEN, JJ., concur with CARDOZO, C. J.

CRANE, J., concurs in result in separateopinion.

Judgments reversed, etc.

(248 N. Y. 243)

BYRNE v. PADDEN.

Court of Appeals of New York. May 29, 1928.

1. Courts 168-Inferior court whose jurisdiction is limited in amount, obtaining jurisdiction, may dispose of entire dispute.

An inferior or local court, having once obtained jurisdiction, may dispose of the entire dispute between the parties, unless prohibited by the Constitution or statute, though jurisdiction in the first place is limited to specified sum. 2. Courts 168-City court of jurisdiction limited to $1,000 held to have jurisdiction in summary dispossession proceedings to render judgment for any amount of rent due (Civil Practice Act, § 1425; Const. art. 6, § 18).

City court, whose jurisdiction in cases of contract is limited to claims not exceeding $1,000, but which has jurisdiction in summary unlawful detainer proceedings, under Civil Practice Act, § 1425, permitting court on rendering final order to determine and render judgment for amount of rent due, had jurisdiction in summary proceedings to give judgment for rent, irrespective of amount, without violating Const. art. 6, § 18.

3. Landlord and tenant 315(1)—Jury's failure to pass on landlord's right to possession in dispossession proceedings did not require reversal, absent objection to verdict for rent (Civil Practice Act, § 1425).

Where it was assumed on trial in proceedings to dispossess tenant under Civil Practice Act, § 1425, that verdict for recovery of rent entitled landlord to possession, and no objection was made to the verdict, failure of jury to pass on plaintiff's right to possession was not ground for reversal.

4. Landlord and tenant

109(1)—Tenant's

right extended only to surrendering possession in case premises were rendered untenantable by landlord's breach of agreement to repair, where damages were not shown (Civil Practice Act, § 1425).

Where in summary proceedings by landlord to dispossess tenant under Civil Practice Act, 1425, defendant failed to show damages under counterclaim for plaintiff's breach of contract to make repairs, extent of tenant's rights, if premises were untenantable, was to surrender possession.

5. Accord and satisfaction

10(1)-Compromise and settlement 5 (2)—Landlord's accepting part of rent and releasing balance in return for continuance of tenancy, after failure to make repairs as agreed, where dispute was in good faith, was binding.

Where tenant was induced to enter on lease of boarding house by oral promises of landlord to make repairs, and failure of landlord to fulfill promise rendered condition of house unfit for purpose of receiving boarders, transaction by which landlord accepted check for part of installment of rent, agreeing to release claim for balance in return for continuance of ten

ancy, constituted accord and satisfaction, which was binding on landlord and prevented recovery of balance of rent, where it was a goodfaith dispute, irrespective of question of tenant's right.

Appeal from Supreme Court, Appellate Division, Second Department.

Suit by Cornelius E. Byrne against Jane E. Padden. Judgment for plaintiff, entered in the City Court, was reversed by the County Court, and the order of the County Court was reversed as a matter of law by the Appellate Division (221 App. Div. 764, 223 N. Y. S. 596), and the judgment of the City Court reinstated, and defendant appeals. Judgment of Appellate Division reversed, and that of County Court affirmed.

William C. Mayer, of New York City, and M. John P. Jacobs, for appellant. Frederick W. Shaw, of Oceanside, and John J. Knob, of New York City, for respondent.

ANDREWS, J. In April, 1926, Cornelius Byrne leased a house to be used as a boarding house at Long Beach to Mrs. Padden for the summer season. She was to pay therefor $1,100 before May 1st and $1,100 on July 1st. The house was in poor condition and the landlord promised orally to make necessary repairs. One thousand dollars was in fact paid, but when the balance was demanded in July, the tenant refused to pay because this had never been done. Then late in the month the tenant told Mr. Byrne that the rent should be reduced or she would abandon the premises. Apparently in their then condition they were not suitable for the purposes for which they had been rented. Mrs. Padden offered Mr. Byrne a check for $500 indorsed “in full payment for balance of the season, premises 228 East Broadway, Long Beach." If not accepted she again said she would leave the premises. It was accepted. It has never been returned and by some one, clearly acting on behalf of the landlord, it has been presented to the bank on which it was drawn and certified.

Subsequently Mr. Byrne began proceedings in the City Court of Long Beach to dispossess his tenant for nonpayment of rent. Also he asked to be granted judgment for $1,200 for rent due. The answer pleaded an accord and satisfaction and also counterclaimed for damages for breach of the contract to repair. The charter of the city of Long Beach limits the jurisdiction of the City Court in actions on contract to those where the sum claimed does not exceed $1,000. At the opening of the case the presiding judge called attention to this fact and the attorney for Mr. Byrne stated that he would waive "the demand for a

(162 N.E.)

money judgment and proceed solely on the theory of dispossess." At the end of the case repentance came. He then asked to be allowed to recover $700 and said the landlord was asking for a money judgment. On this theory the case was submitted to the jury without objection. A verdict for that amount was rendered and judgment (although not printed in the record) seems to have been entered awarding possession of the property to Mr. Byrne and for $700. The County Court reversed this judgment and ordered a new trial. Its theory was that in these proceedings the recovery of a money judgment is dependent upon a determination of the right to possession (Civ. Prac. Act, § 1425) and, the jury not having passed upon that question, the real issue was never tried. This result has been reversed by the Appellate Division, and the judgment of the City Court reinstated. Appeal to us, however, was permitted.

1. As has been said the petition and precept claimed that rent in excess of $1,000 was due. And as has also been said the City Court is given jurisdiction in cases of contract where "the sum claimed does not exceed $1,000," and in numerous other cases with a like limitation. Summary proceedings may also be begun there, but no provision is made as to the value of the lease affected. Such

proceedings are to be taken as prescribed

by article 83, Civil Practice Act, so far as applicable to courts of justices of the peace. Laws 1922, c. 635, § 187.

At first a dispute would not arise. In 1922 no judgment for rent was allowed as an incident to the removal of a tenant. A change came in 1924. "If," the statute now says, "the precept contain a notice that demand is made in the petition for a judgment for rent in arrears, * the court, upon rendering a final order, may determine the amount of rent due to the petitioner and give judgment for the amount found to be due." Civil Practice Act, § 1425.

The right to rent is based on contract. The jurisdiction of the City Court is limited by the "claim" made. Here no amount need be stated. It is enough if rent in arrears is demanded. Such a proceeding does not come within the letter of the statute. We prefer, however, to place our decision on a broader ground. These limitations placed upon the jurisdiction of inferior courts are not upon the theory that they are incapable of dealing with larger sums. Their power ordinarily depends upon the amount claimed in the complaint. If it asks more than the sum prescribed, no jurisdiction attaches. It may not act. No subsequent amendment will confer what has never been acquired. But once jurisdiction exists it is not lost because far more than the

A County

specified sum may be involved. Court may grant judgment in any sum on a counterclaim. Howard Iron Works v. Buffalo Elevating Co., 176 N. Y. 1, 68 N. E. 66. So the Legislature having conferred on County Courts jurisdiction to foreclose a mortgage, and made no limitation as to amount, it may enter a deficiency judgment for whatever is due. Hawley v. Whalen, 64 Hun, 550, 19 N. Y. S. 521. In Justices Courts a counterclaim may be pleaded and the claim may be tried. Heigle v. Willis, 50 Hun, 588, 3 N. Y. S. 497. Except for the Justice Court Act (section 264) an appropriate judgment far in excess of $200 might follow.

[1, 2] In short, an inferior or local court, having once obtained jurisdiction, may dispose of the entire dispute between the parties unless prohibited by Constitution or statute. Here the City Court may entertain these summary proceedings. The power to fix the rent due is an incidental matter. There is no intimation that the amount for which judgment may be given is limited-that results differ should the application be made to a justice of the peace, to a county judge, to a judge of the City Court of New York, or to the Municipal Court of that city. Section 1425 is a general provision referring to all applications whereever made.

section 18, art. 6, of the Constitution. The

Nor is such a construction in conflict with

Legislature may not confer on any local court any greater jurisdiction in other respects than is conferred on County Courts by or under the judiciary article. Their jurisdiction is limited in actions for the recovery of money only where the complaint demands judgment for a sum not exceeding $3,000. This is not such a proceeding. Except for this limitation and another not material, the Legislature may enlarge their jurisdiction. And when enlarged jurisdiction is conferred "by and under" the Constitution.

Our conclusion is, therefore, that in summary proceedings, wherever brought, judgment for rent due may be granted, whatever the amount.

[3] 2. The verdict as recorded was "in favor of the plaintiff in the sum of $700." It seems to have been assumed that this was also a verdict that the landlord was entitled to possession. No objection was made to it. Had there been there could have been correction. The proper judgment seems to have followed. No point is now made by the appellant. We should not reverse on any such ground.

[4] 3. Even if under the counterclaim damages for breach of contract might be proved, none were in fact shown. Work was not done. As to its value nothing is said. At most, therefore, if the premises were unten

antable, the lessee might surrender possession. [5] 4. The serious question is that of accord and satisfaction. There clearly was a genuine dispute between the parties as to their rights. Mrs. Padden claimed that she had been induced to enter upon the lease by oral promises to make repairs. By renewal of these promises she was induced to pay an installment of rent. The promises were never fulfilled and the house was in no condition

to receive boarders. Under the circumstances

Mrs. Padden clearly believed she might abandon possession and refuse to pay the balance of $1,200. She maintained this position in the face of threats of suit. Whether she was right or not we are not concerned. We deal with the question whether there was in good faith a dispute between these parties. Schnell v. Perlmon, 238 N. Y. 362, 144 N. E.

641, 34 A. L. R. 1023.

With affairs in this condition an accord was reached. In return for her continuance as tenant and paying $500, Mr. Byrne was to permit her to remain for the rest of the season and release his claim for $1,200. And there was a satisfaction, for he not only ac cepted the check, but had it certified.

In view of this evidence the proceeding might have been dismissed. In its discretion, however, the County Court granted a new trial. It might do so. Justices Court Act, § 453. Although mistaken as to the ground taken by it, the result was right. '

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The judgment of the Appellate Division should be reversed, and the judgment of the County Court affirmed, with costs in this court and in the Appellate Division.

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

concur.

Judgment accordingly.

(248 N. Y. 250)

DUDLEY et al. v. PERKINS et al. Court of Appeals of New York. May 29, 1928. I. Principal and agent 122(1)—Special agent's authority to modify contract must be proved by acts and representations of principal.

Special agent's authority to modify contract made by principal must be proved, not by his own acts or representations, but by acts or representations of putative principal. 2. Principal and agent 119(1)-Plaintiffs, failing to substantially perform contract, cannot recover, where they did not show special agent permitting modification had authority to do so.

Where plaintiffs failed to supply potatoes called for in contract, and defects were not so

few as to justify finding of substantial performance, and plaintiffs did not prove that special agent for defendants' testator had authority to modify conditions of contract, they cannot re

cover on same.

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

Action by Egbert H. Dudley and others against Evelina B. Perkins and others, as exJudgment for plaintiffs entered on a verdict ecutors of George W. Perkins, deceased. Division (218 App. Div. 809, 218 N. Y. S. 736), was modified and affirmed by the Appellate and defendants appeal. Reversed, and complaint dismissed.

See, also, 123 Misc. Rep. 483, 205 N. Y. S.

738; 123 Misc. Rep. 496, 205 N. Y. S. 740. Herbert A. Heminway, of Corning, for appellants.

James O. Sebring, of Corning, for respond

ents.

PER CURIAM. [1, 2] The plaintiffs failed to supply potatoes corresponding in size or their written contract with George W. Pergrade to those called for by the conditions of kins, the defendants' testator. There is no evidence for the plaintiffs that the defects were so few or slight as to justify a finding in their favor of substantial performance. To sustain their recovery, they must show that the conditions of the contract were modified thereafter.

The modification relied upon is one that is said to have been permitted by one McGrath, acting, or professing to act, as Mr. Perkins' representative. We held, when the case was here on an earlier appeal (Dudley v. Perkins, 235 N. Y. 448, 139 N. E. 570), that McGrath was at most a special and not a general agent, and that his authority to modify must be proved, not by his own acts or representations, but by the acts or representations of his putative principal. He had been employed to oversee the performance of a particular contract, not to modify its terms. A new trial has been had, and the case for the

plaintiffs is no stronger than before. If any

thing, it is weaker, for the agent has been permitted to state the instructions of his principal. Neither by act nor by word did Mr. Perkins invest his assistant with authori

ty to change the contract or release its obliga

tions. The cause of action therefore fails.

On the authority of Dudley v. Perkins, 235 N. Y. 448, 139 N. E. 570, the judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

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