Slike stranica
PDF
ePub

(162 N.E.)

While plaintiff was on the stage, the manager

MENT CO.

(248 N. Y. 290)

Court of Appeals of New York. May 29, 1928. Brokers 49(1)-Broker, failing to procure loan in accordance with specifications in contract as to interest and amortization, held not entitled to commission.

of the theater stood in the rear of the hall BROWN v. THOMPSON HILL DEVELOPand witnessed this act. The jury could find that the act was inherently dangerous, that the operation of the machine in such a manner as violently to propel a human being from it required intense activity and caution by Brown to prevent himself from slipping and falling upon the invitee. Brown's services in catching the performer after propulsion from the machine seem to have been regarded as necessary. Otherwise he would have allowed the performer to fall without assistance. One of defendant's witnesses described the act in these words:

"The idea was at the end of the act, Brown would grab the boy and as he took hold of the boy's arm, take him clear of the treadmill, and that was the laugh, because the boy would fall and fall on the mattress or pad."

The act must be viewed as the joint product of Brown and the theater. One could not have produced it without co-operation by the other. The jury could and did find that it was inherently dangerous.

[1, 2] Patrons of theaters are frequently invited upon the stage to be used as foils for the actors. Sleight of hand performers and acrobats avail themselves of the services of spectators as accessory to their tricks and feats. The management is bound to know whether the character of the act is dangerous. Patrons are entitled to protection against acts which by their nature might cause a menace to safety. One who collects a large number of people for gain or profit must be vigilant to protect them. Arnold v. State, 163 App. Div. 253, 148 N. Y. S. 479; Platt v. Erie County Agricultural Society, 164 App. Div. 99, 149 N. Y. S. 520. Plaintiff, having responded to the theater's advertisement to witness the performance, having originally paid for his admission and having se cured the return of his admission fee for the purpose of participating in an entertainment which was gainful to defendant, and having been admitted to the theater by order of the manager, cannot fairly be regarded as possessing rights lesser in degree than those of a patron. Defendant was bound to protect its patrons from dangers inherent in George Brown's act and it was bound likewise to protect plaintiff.

The judgment should be affirmed, with costs.

CARDOZO, C. J., and CRANE, ANDREWS, LEHMAN, and KELLOGG, JJ., concur. POUND, J., not sitting.

Judgment affirmed.

Where broker, employed to secure a loan at a specified rate of interest and provision for amortization, failed to procure loan at such interest rate or other required conditions, and proposal was for such reason refused, he was not entitled to recover commissions, in that he did not fulfill conditions of contract of employment.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Luther C. Brown against the Thompson Hill Development Company. Judgment for plaintiff entered on a verdict of a jury was affirmed by the Appellate Division. of the Supreme Court in the First Judicial Department by a divided court (222 App. Div. 727, 225 N. Y. S. 797), and defendant appeals. Reversed and rendered.

I. Balch Louis, of New York City, for appellant.

James Marshall, Robert H. Hibbard and Eugene Untermyer, all of New York City, for respondent.

PER CURIAM. The plaintiff, a broker, sues to recover commissions for services in deed of trust covering defendant's land. the procurement of a loan to be secured by a

By the contract of employment the loan to terest at the rate of 62 per cent. It was to be accepted by the defendant was to bear inmature in ten years, with amortization at an average rate of 4 per cent. per annum. expense of procuring it was not to exceed the services of the broker. 12 per cent. with 1 per cent. commission for

The

Plaintiff submitted to defendant a proposed contract of loan to be underwritten by the Empire Bond & Mortgage Company, the trustee under a deed of trust. Defendant refused to sign it, asserting that it departed in many ways from the terms of the loan prescribed by the contract of employment. This action for commissions followed.

We think the loan procured was not the loan prescribed, and that the defendant was within its rights in refusing to accept it. The loan prescribed by the contract of employment was to bear interest, as we have seen, at the rate of 62 per cent. The loan procured bore interest at that rate and more. By its terms the borrower was to relieve the bondholders of the payment of the normal

federal income tax, not exceeding 4 per cent. due upon the bonds, and was to deposit with the trustee a sum sufficient to discharge the liability thus assumed. In addition, the borrower was to pay the personal property tax due from owners of the bonds by virtue of such ownership in Pennsylvania, Connecticut, Maryland, Massachusetts, and the District of Columbia. This assumption of a liability which in law was owing by the lender was equivalent to an increase of the interest, since it was compensation for the use of money beyond the rate prescribed. Again, the loan called for by the employment was to be amortized at an average rate of 4 per cent. per annum. The loan procured and tendered was to be amortized at an average rate of 6% per cent. There were other deviations in connection with the expenses of procurement. After payment of 12 per cent. to the trustee and 1 per cent. to the broker, the bor rower was to pay for a surety company bond at a cost of $2,400, and was to deposit a sum of money equal to 1 per cent. of the proposed issue as security to the trustee that it would go forward with performance.

The plaintiff did not fulfill the conditions of the contract of employment. The cause of action therefore fails.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

CARDOZO, C. J., and CRANE, ANDREWS, LEHMAN, and O'BRIEN, JJ., concur. POUND and KELLOGG, JJ., not sitting.

Judgments reversed, etc.

(248 N. Y. 293)

PINE GROVE POULTRY FARM, Ino, V.
NEWTOWN BY-PRODUCTS
MFG. CO., Inc.

Court of Appeals of New York. May 29, 1928. 1. Negligence 18-Meat scraps containing some beef, ground into poultry feed, held to be "commercial feeding stuffs," within statute prohibiting sale of feed containing deleterious substances (Farms and Markets Law, §§ 128, 130).

Meat scraps which evidence indicated contained some beef, gathered from many shops and ground into poultry feed, held to be within Farms and Markets Law (Consol. Laws, c. 69) § 128, defining "commercial feeding stuffs," and section 130, prohibiting the sale of such stuffs containing substances injurious to the health of animals.

2. Negligence 18-Violation of statute prohibiting sale of feed containing injurious substances is negligence as matter of law (Farms and Markets Law, §§ 128, 130).

Violation of the duty imposed by Farms and Markets Law (Consol. Laws, c. 69) §§ 128, 130, to refrain from selling commercial feed containing substances injurious to animals, constitutes negligence as matter of law.

3. Negligence 27-Any person having special interest may sue manufacturer for breach of statute prohibiting sale of feed containing Injurious substances (Farms and Markets Law, §§ 128, 130).

Any person, such as an owner of injured poultry, having a special interest in the performance of the duty enjoined by Farms and Markets Law (Consol. Laws, c. 69) §§ 128, 130, to refrain from selling feed stuffs containing substances injurious to animals, may sue for the breach, notwithstanding the absence of privity between himself and the manufacturer.

4. Action 2-Action may be maintained by person suffering injury to property through breach of statute imposing duty for public benefit.

Property rights come within the protection of a statute imposing a duty for the benefit of the public, so that the right to maintain an action for breach of the duty is not restricted to one suffering injury to the person.

5. Statutes

279-Public statute need not be pleaded in action for breach.

A public statute, such as the Farms and Markets Law (Consol. Laws, c. 69), need not be pleaded in an action for violation of the statutory duty thereby imposed.

6. Statutes 279-Statute whose violation is negligence as matter of law, even though not pleaded, need not be brought to attention at trial in order to be available to plaintiff (Farms and Markets Law).

The Farms and Markets Law (Consol. Laws, c. 69), even though not pleaded, need not be brought to the attention of the court or opposing counsel during trial in order to be available to one suing for property damages sus. tained by reason of acts constituting negligence as matter of law under that statute.

7. Appeal and error 1033 (5) — Defendant cannot complain because court charged more favorably to him than statute for whose violation he is sued contemplates (Farms and Markets Law, § 130).

Defendant, in an action for injuries to poultry resulting from his acts which constituted negligence as matter of law, under Farms and Markets Law (Consol. Laws, c. 69) § 130, prohibiting sale of feed stuffs containing deleterious, substances, cannot complain because the court, by charging the rule as to reasonable care, may have charged more favorably to him than the statute contemplates.

(162 N.E.) Appeal from Supreme Court, Appellate Division, Second Department.

Action by the Pine Grove Poultry Farm, Inc., against the Newtown By-Products Manufacturing Company, Inc. The Appellate Division, Second Department (222 App. Div. 834, 226 N. Y. S. 886), reversed a judg

ment of the Trial Term entered on a ver

dict in favor of plaintiff, and dismissed the complaint, and plaintiff appeals. Judgment of the Appellate Division reversed, and that

of the Trial Term affirmed.

Harold R. Medina and Edward Gluck, both of New York City, and C. Elmer Spedick, of Brooklyn, for appellant.

[1-3] The Farms and Markets Law (Consol. Laws, c. 69) controls this case. Section 130 mercial feeding stuffs containing any subprohibits the sale of any concentrated comstances injurious to the health of animals, and section 128 defines "concentrated com

mercial feeding stuffs" as including ground "beef" or fish scraps and "all other materials of a similar nature." The meat scraps sold by defendant and fed to plaintiff's poultry Brand Meat Scraps." Throughout the trial are alleged in the complaint to be "Red X reference was usually made to them as such, yet on several occasions, without objection by defendant, they were described as "beef" scraps. The scraps of meat of which the feed

Murray G. Jenkins, of New York City, for was composed were gathered indiscriminately respondent.

O'BRIEN, J. Plaintiff operates an extensive duck farm on the south shore of Long Island. Defendant manufactures a brand of poultry feed known as meat scrap. It consists of scraps of meat procured from butcher shops, seasoned and ground and sifted through a screen, then packed in bags and sold to retail dealers. From such a dealer plaintiff purchased large quantities and upon it fed its ducks. Several thousand died. This high mortality was traced to the presence in the feed of fine particles of steel wire which had been fastened by butchers to the meat and, still attached to the scraps, was ground with them. The question is presented whether, in the absence of privity between the manufacturer and the ultimate purchaser, plaintiff can recover.

Theories based upon common-law rules of negligence need not now be considered. An answer to the question whether the doctrine of common-law negligence founded upon the principles applied in such decisions as Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, and MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440, shall be further extended to include damage to property rights as distinguished from personal injuries, may prudently be reserved for the future. Before us now is a set of facts which requires disposition according to statutory enactment. The action is based upon negligence. The complaint alleges it. The jury found it. The verdict rests upon evidence, so clear that its truth cannot be and is not assailed, proving that the feed contained ground wire and that the loss of the poultry resulted from that cause. The court, adopting the theory of negligence pleaded by plaintiff, charged the rule relating to reasonable care. In view of the statute he might have correctly charged negligence as matter of law.

from a thousand shops. A proportion of this meat must have been beef. Even if the proportion of beef to the other meats were low, the material in the finished product, be ing meat, was of a similar nature to ground beef scrap. The feed falls within the type of food defined by sections 128 and 130. It was proved to be injurious to the health of animals, and therefore its sale was prohibited. Violation of the duty to refrain from the sale of this feed as imposed by section 130 constitutes negligence as matter of law and any one having a special interest in the performance of that duty may sue for a breach. Willy v. Mulledy, 78 N. Y. 310, 34 Am. Rep. 536; Marino v. Lehmaier, 173 N. Y. 530, 535, 66 N. E. 572, 61 L. R. A. 811; Amberg v. Kinley, 214 N. Y. 531, 108 N. E. 830, L. R. A. 1915E, 519.

[4] The right to maintain an action for the breach of a statutory duty is not restricted to one suffering an injury to the person. Property rights also come within the protection of a statute imposing a duty for the benefit of the general public. Such a rule has been applied by us to a violation of the Farms and Markets Law in a case where no privity of contract existed between the party guilty of the violation and the one incurring the damage. No element of ordinary negligence is essential. Violation of the statute becomes actionable default. Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458, 154 N. E. 309.

[5-7] A public statute, such as the Farms and Markets Law, need not be pleaded. Neither is there any requirement that during the trial it shall be brought to the attention of the court or opposing counsel. The facts found by the jury upon abundant evidence constitute as matter of law a violation of the statute. The court may have charged more favorably to defendant than the statute contemplates. Defendant cannot complain.

The judgment of the Appellate Division should be reversed, and that of the Trial

Term affirmed, with costs in the Appellate Merson Construction Corporation, Peck Coal Division and in this court.

CARDOZO, C. J., and CRANE, ANDREWS, LEHMAN, and KELLOGG, JJ., concur. POUND, J., not sitting.

Judgment accordingly.

(248 N. Y. 298)

JOHN S. LANE & SON, Inc., v. WESTCHESTER COUNTY et al.

Court of Appeals of New York. May 29, 1928. 1. Corporations

547 (4)—-Assignment by corporation with intent of giving preference to one creditor over others is voidable at in

stance of later lienors (Stock Corporation Law, § 15).

Assignment of moneys due or growing due under contract by corporation, with intent of giving preference to one creditor over others, was subject to prohibition of Stock Corporation Law (Consol. Laws, c. 59), § 15, and is voidable at instance of later lienors.

2. Corporations

544(1)-Lien law statute does not relieve assignment of moneys due under building contract from prohibitions applicable to assignments generally (Lien Law, § 16).

Lien Law (Consol. Laws, c. 33), § 16, does not relieve an assignment of moneys due under building contract from prohibitions applicable to assignments generally.

3. Corporations 544(1)-That assignee of moneys due under building contract might have filed lien for debt secured by assignment did not validate transfer by corporation, where it was made to give preference to creditor (Stock Corporation Law, § 15).

That assignee under assignment of moneys due under building contract, made by corporation with intent of giving preference to one creditor over others, which assignment was voidable under Stock Corporation Law (Consol. Laws, c. 59), § 15, might have filed a lien for debt secured by assignment, did not validate transfer by assignment.

4. Corporations 547(4)—Llenors may challenge assignment by corporation as giving preference to creditor without surrendering their own liens (Stock Corporation Law, 8 15).

Lienors may challenge an assignment by corporation as giving unlawful preference to one creditor over others under Stock Corporation Law (Consol. Laws, c. 59), § 15, without surrendering their own liens, since aim of statute is not absolute equality, but equality among creditors of same class or order.

Corporation, Royal Indemnity Company, and others. Judgment of the Special Term in favor of the plaintiff was affirmed by the Appellate Division (220 App. Div. 773, 221 N. Y. S. 845), and the Peck Coal Corporation, Merson Construction Corporation, and Royal Indemnity Company appeal by permission. Affirmed.

William A. Hyman, and Adolph Bangser, both of New York City, for appellants Merson Const. Corporation and Royal Indemnity Co.

Carl Sherman, of New York City, for appellant Peck Coal Corporation.

Jeremiah D. Toomey, of Mt. Vernon, for plaintiff, respondent.

W. Randolph Montgomery, of New York City, for respondent Kalman Steel Co., Inc.

PER CURIAM. Action for the foreclosure of a mechanic's lien.

Frank G. Fowler, having contracted with the county of Westchester for the construction of a public improvement, assigned his interest in the contract to the Merson Construction Company. Some months thereafter the latter corporation, being then insolvent, assigned the moneys due or to grow due under its contract to the Peck Coal Corporation, to which it was then indebted for materials and advances in the sum of $46,390.64. Heyel, the president of the Merson Company, was also the general manager of the Peck Company. The evidence is ample that the assignment was made by the assignor corporation with the intent of giving a preference to one creditor over others, and that such was its effect.

[1, 2] We think an assignment so made is subject to the prohibition of Stock Corporation Law (Cons. Laws, c. 59), § 15, and is voidable at the instance of later lienors. Nothing in section 16 of the Lien Law (Cons. Laws, c. 33) relieves an assignment of moneys due under a building contract from prohibitions applicable to assignments generally. Section 16, instead of working an enlargement of any right of assignment that would exist without it, is a new restriction on the right; the assignment must be filed in a public office, so that materialmen and laborers, future as well as past, may have notice of its existence. The right to prefer when the assignor is insolvent or when insolvency is imminent is neither increased nor diminished. If the assignor is a natural person, a preference is lawful, unless bankruptcy supervenes, in

Appeal from Supreme Court, Appellate Di- which event the validity of the preference vision, Second Department.

Action by John S. Lane & Son, Incorporated, against the County of Westchester, the

is governed by the federal statute. If the assignor is a corporation, a preference is condemned by section 15 of the Stock Corpora

(162 N.E.)

tion Law irrespective of the nature of the subject-matter affected by the transfer.

[3] The argument is made that the assignee might have filed a lien for the debt secured by the assignment, and thus have won a preference by varying the form of the security. We think this circumstance does not avail to validate the transfer. What the statute condemns is the voluntary act of the corporation with intent to work a preference. The act is no less wrongful because a creditor acting of his own motion might be able to secure a preference by proceedings in invitum. In point of fact, this creditor did file a notice of lien, but the notice was defective, and the lien was thus defeated. The statute gives a lien upon compliance with certain conditions. To uphold a prohibited assignment upon some theory of equivalence would amount to the creation of a lien in disregard of the prescribed conditions.

[4] The argument is also made that lienors may not be permitted to challenge an assignment as an unlawful preference without surrendering their own liens, however lawfully obtained. We cannot yield assent. The aim of the statute is not absolute equality, but equality among creditors of the same class or order. Cf. Lodi Chemical Co. v. National Lead Co., 41 App. Div. 535, 537, 538, 58 N. Y. S. 717. As well might one argue that it would be the duty of an employee of a corporation before attacking an unlawful preference to renounce the advantage of his own preference for wages. People v. E. Remington & Sons, 121 N. Y. 328, 24 N. E. 793, 8 L. R. A. 458.

The court is empowered in this action of foreclosure to "adjust and determine the equities of all the parties to the action." Lien Law, § 45.

Other objections have been considered and

have been found to be untenable.

The judgment should be affirmed, with costs.

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

concur.

POUND, J., not sitting. Judgment affirmed.

(248 N. Y. 302)

PEOPLE v. INGBER et al. Court of Appeals of New York. May 29, 1928. 1. Criminal law 1210-Statute making sentences cumulative on conviction of two offenses before sentence for either is Inapplicable, where one sentence is imposed prior to other conviction (Penal Law, § 2190).

Penal Law (Consol. Laws, c. 40), § 2190, providing that where one is convicted of two or

more offenses before sentence has been pronounced for either, imprisonment to which he is sentenced on the subsequent conviction must commence at termination of the prior term to which he is sentenced, has no application where tion of the other offense. one sentence had been imposed before convic

2. Criminal law 1210-Statute making sentences cumulative on conviction of felony committed subsequent to sentence for other felony, is inapplicable where later conviction is for prior felony (Penal Law, § 2190). providing that where one under sentence for Penal Law (Consol. Laws, c. 40), § 2190, felony commits another felony, the term of imprisonment on conviction and sentence for the later felony shall not begin until expiration of all the terms of all prior sentences, is not applicable where felony that is subject of later was committed before the felony sentence

which is subject of earlier one.

3. Criminal law 1210-Common-law power to impose cumulative sentence in cases not covered by mandatory statutes is undiminished (Penal Law, § 2190).

Discretionary power of court to impose a cumulative sentence in cases not covered by the Laws, c. 40), § 2190, remains undiminished, as mandatory provisions of Penal Law (Consol.

it was at common law.

4. Criminal law 9, 1206(1)-Penal law abolishes common-law crimes and punishments, but does not require rejection of common-law tests in determining sentence (Penal Law, § 22).

Penal Law (Consol. Laws, c. 40), § 22, providing that no act or omission subsequent to the date the chapter takes effect shall be deemed criminal, except as provided thereby or by some statute not repealed by it, construed in the light of section 20, which states the purposes of the Penal Law, is merely to abolish commonlaw crimes and punishments, and does not require rejection of the common-law tests in determining forms of sentence.

5. Criminal law 1206 (3)-Grant of power to sentence for stated term is, in absence of limitation, to be read as like grant at common law.

A statutory grant of power to sentence for a stated term without other limitation is to be read as a like grant of power would be read at common law.

Appeal from Supreme Court, Appellate Division, First Department.

Samuel Ingber and another were convicted of manslaughter in the first degree, the judgment was affirmed (222 App. Div. 804, 226 N. Y. S. 878), and they appeal by permission. Affirmed.

John McKim Minton, Jr., of New York City, for appellants.

Joab H. Banton, Dist. Atty., of New York City (Felix O. Benvenga, and William B

« PrethodnaNastavi »