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the Lord Chancellor expressed the opinion that if the holder of a check had collected the money from the banker after the death of the drawer, but before the banker had knowledge of death, no court would take the money away from her. This was purely obiter, simply the chancellor's opinion, for, as a matter of fact, the suit in which the opinion was expressed was dismissed and the complainant remitted to her action at law. On the other hand, none of the cases lant is authority for the contrary proposition. cited by the learned counsel for the appelThe greatest reliance is upon Davis, Adm'r,

Appeal from Supreme Court, Appellate v. Windsor Savings Bank, 46 Vt. 728. There Division, Fourth Department.

Action by John W. Glennan against the Rochester Trust & Safe Deposit Company. From a judgment of the Appellate Division (152 App. Div. 316, 136 N. Y. Supp. 747) in favor of the defendant, plaintiff appeals. Affirmed.

H. W. Rippey, of Rochester, for appellant. A. P. Whipple, of Rochester, for respond

ent.

CULLEN, C. J. The action is brought by the plaintiff as administrator of a depositor in the defendant trust company to recover the amount of a deposit made by the intestate. The defense was payment and an assignment of the deposit by the intestate to a third party. The payment proved was that of a check drawn by the intestate, but not presented to or paid by the defendant until after the death of the former, of which the defendant claimed to be ignorant. While the case was submitted to the jury on both issues, the jury was directed to answer specific questions of fact, one of which was: "Did the bank pay the money without knowledge of the death of John Callahan (plaintiff's intestate) and in the due course of business?" This question the jury answered in the affirmative. If the finding required a verdict in the defendant's favor, as the trial court charged, it is not necessary to consider the other rulings on the trial of which the appellant complained, as they do not affect this issue.

It is singular that there should be such a paucity of judicial decisions on this question, as seems to be the case. In my search through the reports I have been able to find only one on the precise point, Rogerson, Executor, v. Ladbroke, decided by the English Common Pleas in 1822 (1 Bing. 93), in which it was held that the payment or rather the charge of a check to a depositor's account made by the banker after the death of the depositor, but before the bank had received knowledge of that fact, was a valid payment, and that the banker was not liable for the amount. There is another case often cited to the same effect (Tate v. Hilbert, 2 Vesey, Jun. 112) where

a woman from time to time deposited certain sums of money in a savings bank to the credit of her brother, in whose name the passbook was issued. The jury found that these moneys were the property of the brother and had been collected by the woman on his account. After the death of the brother, but before notice of that death had reached it, the defendant paid the amount of the account to the woman who presented the passbook. It was held that death revoked the

agency of the plaintiff, and that the payment was bad. No question of the payment of a check was involved in this case, for there was none. dred v. Seamen's Savings Bank, 10 Abb. Prac. (N. S.) 425, was an action by the holder of a check against the bank, which refused to pay it. Of course, in this state no such action could be maintained whether the drawer was dead or alive. In Podmore v. South Brooklyn Savings Institution, 48 App. Div. 218, 62 N. Y. Supp. 961, payment was made by the bank after knowledge of the death of the depositor to one who presented the passbook, claiming the deposit as a gift causa mortis from the deceased. As the jury found there was no gift, the defense failed. Here, again, no question of a check was involved. This is the same case which is reported in this court on a subsequent appeal under the title of Mahon v. South Brooklyn Savings Institution, 175 N. Y. 69, 67 N. E. 118, 96 Am. St. Rep. 603. In Pullen v. Placer County Bank, 138 Cal. 169, 66 Pac. 740, 71 Pac. 83, 94 Am. St. Rep. 19, the check was paid, not only after the death of the drawer, but after the defendant had been informed of the death, as is stated in the opinion of the court. But, while there is this paucity of judicial decisions on the subject, there seems to be absolute unanimity in the rule as declared by the leading text-writers. Chitty on Bills, *429, Byles on Bills (Sharswood Ed.) p. 22, 2 Parsons on Notes and Bills, p. 81, Story on Promissory Notes, § 498a, Edwards on Bills and Notes, § 739, Morse on Banks and Banking, § 400, and Daniels on Negotiable Instruments, § 1618b, all declare that, while a bank should not pay a check after the death of the drawer, still a pay

As to the other cases cited: For

ment made in good faith, without knowledge of the death, or of facts sufficient to cause inquiry, is a valid payment, though the only authority usually cited is that of Tate v. Hilbert (supra).

[1] For the appellant it is argued, first, that a check of itself is a mere order for the payment of money, not operating as an assignment of any part of the fund, the authority of the drawee or the banker to pay which may be revoked or countermanded by the drawer. This is the rule of law prevailing in England and in this country, with the exception of a very few states in which a check is considered as an assignment of the fund. The rule stated is unquestionably the law of this state as well as the law of the federal courts. Atty. Gen. v. Continental Life Ins. Co., 71 N. Y. 325, 27 Am. Rep. 55; O'Connor v. Mechanics' Bank, 124 N. Y. 324, 26 N. E. 816; Bank of the Republic v. Millard, 10 Wall. 152, 19 L. Ed. 897; Florence Mining Co. v. Brown, 124 U. S. 385, 8 Sup. Ct. 531, 31 L. Ed. 424; Fourth St. Bank v. Yardley, 165 U. S. 634, 17 Sup. Ct. 439, 41 L. Ed. 855.

[2] That the death of the principal revokes the authority of the agent to collect the check in those jurisdictions where the check is considered a mere order must also be conceded. Fordred v. Seamen's Bank, supra; Atty. Genl. v. Continental Life Ins. Co., supra; Long v. Thayer, 150 U. S. 520, 14 Sup. Ct. 189, 37 L. Ed. 1167.

[3] It is further true that the common-law doctrine that death revokes an agent's power, even as to third parties dealing with the agent in good faith without notice, is the general rule in this state. Farmers' Loan & Trust Co. v. Wilson, 139 N. Y. 284, 34 N. E. 784, 36 Am. St. Rep. 696.

as long as his deposit is sufficient for the purpose, and for a failure to pay the checks the bank is liable for any injury to the credit of the drawer occasioned thereby. In the ordinary conduct of a bank but a minute fraction of its payments is made directly to its depositors. The others are made on checks in favor of third parties, usually, at least in large cities, presented through other banks or the clearing house. The number of depositors is often very great, many of them living at other places than where the bank is located. Of the death of those prominent, either by their public position, their business activities or great wealth, the bank might be apprised; but of the great mass their deaths would pass unknown by the bank unless notice of the fact was given. It would be utterly impracticable for business to be done if, before the bank could safely pay checks, it must delay to find out whether the drawer is still living.

But the dominant and controlling reason for holding that the usual rule that a debtor is not protected in payment to an agent after the death of his principal, though without knowledge of that fact, is not applicable to the payment of checks by banks, is that such has almost universally been accepted as the law. As already said, all the text-books so state the law (in England it has been so settled by section 75 of the Bills of Exchange Act of 1882), and apparently the whole country has assumed the text-books to be right. The rule thus adopted, if not strictly a rule of property, is a rule of conduct affecting property interests that very closely approximates to a rule of property. I think the fact that the rule has been adopted by the community is reasonably clear. The use of banks as depositories of money and the practice of making payment by checks prevails in this country to an extent far beyond that existing in any other, so that the situation presented in this case must have frequently arisen. True, where the estate of the depositor is solvent and the check is given for value, it is of no practical moment whether the bank is liable for the payment of a check after the death of the drawer or not. Very many, however, must have been the cases where either the estate was insolvent or the check was given without value and the bank has paid it after death, in ignorance of that fact. Yet, in my research, I have not been able to find in the reports in this country or in England a case where it was sought, under such circumstances, to hold the bank liable except the Rogerson Case, supra, in which the attempt failed.

[4] At this point we reach the very crux of this case, and the question is whether payment of checks by banks or bankers is an exception to the rule stated. I think it is. It must be first borne in mind that the rule itself is an exception to the still broader rule that revocation of the power of an agent does not affect third parties dealing with him in good faith without notice. This is the rule of the civil law even where the agency is revoked by death. The common-law rule in some states has been changed by statute, in others repudiated (Cassiday v. McKenzie, 4 Watts & S. [Pa.], 282, 39 Am. Dec. 76; Carriger v. Whittington, 26. Mo. 311, 72 Am. Dec. 212), while in still others greatly limited (Lenz v. Brown, 41 Wis. 172; Ish v. Crane, 8 Ohio St. 521). There are differences between the liability of banks to their depositors and that of ordinary debtors to their creditors [5] The rule that denies protection to perwhich justify excepting the payment of sons dealing with an agent after the death of checks from the rule. If an ordinary debtor the principal, though in good faith and withrefuses to pay his debt to the agent of his out knowledge of that fact, is an inherited creditor, his liability is in no respect in- one. In the Wilson Case it was declared by creased. It is not so with a bank. Its con- this court to be a harsh one, but the court

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amounted to a license creating no right and entitled the light company at any time to forbid tion of the telephone company to the light comthe further use of the pole, so that the rela pany was that of a licensee.

[Ed. Note.-For other cases, see Electricity, Cent. Dig. & 8; Dec. Dig. § 15.*]

3. ELECTRICITY (§ 15*) - TELEPHONE COM-
PANY'S USE OF LIGHT COMPANY'S POLES-
CARE AS TO LICENSEES-INVITATION.
Mere permission or consent, whether ex-
press or implied from sufferance or passive ac-
quiescence, to do a certain thing gives a license
but does not necessarily imply an invitation to
do so, and hence where a telephone company
attached its wires to the pole of a light com-
pany without any mutuality of benefit or any
contractual relation and without compensation
but solely by the light company's gratuitous
permission, implied by its passive acquiescence,
there was no express or implied invitation for
the telephone company or its employé to go up-
on the pole, and in doing so they were volun-
teers or licensees using it subject to all the
conditions and perils, as to whom the light
company was only bound to abstain from in-
flicting intentional, wanton, or willful injury.

in this state to be disturbed by judicial decision, though it recommended a change by the Legislature, to place the law in harmony with the more enlightened views of the present time and to promote the interests of justice. The same reason which there constrained the court to give effect to the rule, despite its disapproval of it, should also impel us to hold the rule inapplicable to bank checks. If there it appeared that the doctrine of the common law had prevailed too long to be disregarded, it also appears almost equally clearly that the common-law doctrine has never prevailed as to checks; for a legal proposition may be nearly as well established by its general acceptance and the failure of any one to question it as it can be by a series of judicial decisions. Even if it should be assumed that the distinction sought to be drawn between the relation of a bank to its depositors and that between ordinary debtors and their creditors would not justify a distinction in the principle of law applicable to the respective cases, nevertheless a rule of conduct of a whole people long prevailing and acted upon should not be subordinated to mere consistency of legal principles. The law presents anomalies. They are to be regretted; but no one would maintain that merely to avoid inconsistency courts would be justified in disregarding rules of action long established by judicial decisions, especially when the exception is more just than the general rule. The judgment appealed from should be trix of Frank Heskell, deceased, against the affirmed, with costs.

WERNER, HISCOCK, CHASE, COLLIN, and HOGAN, JJ., concur. WILLARD BARTLETT, J., absent.

Judgment affirmed.

(209 N. Y. 86)

HESKELL v. AUBURN LIGHT, HEAT &
POWER CO.

(Court of Appeals of New York. June 17,
1913.)

1. APPEAL AND ERROR (§ 1094*)-REVIEWDECISIONS OF INTERMEDIATE COURTS-EVI

DENCE.

Where the decision of the Appellate Division affirming a judgment for plaintiff in an action for negligent death was not unanimous, the Court of Appeals must ascertain from the evidence whether there was any proof permitting the jury to return a verdict for plaintiff, and if there was no evidence to support a verdict the submission of the case will be held error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dec. Dig. 8 1094.*]

2. ELECTRICITY ( 15*) - USE - TELEPHONE
(§.
COMPANY'S USE OF LIGHT COMPANY'S POLES

-LICENSEE.

Where a pole standing in a street was the private property of a light company, and after a telephone company without permission had attached its wire to the pole it tacitly and impliedly permitted such use, such permission

[Ed. Note.-For other cases, see Electricity, Cent. Dig. § 8; Dec. Dig. § 15.*1 4. ELECTRICITY (§ 15*) - POLES - USE BY LI

CENSEE.

The pole of a light company situated in the street and which is its private property is not property that any one has a right to use and assume to be in a safe condition.

Cent. Dig. § 8; Dec. Dig. § 15.*]
[Ed. Note. For other cases, see Electricity,

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Emma J. Heskell, as administra

Auburn Light, Heat & Power Company. From a judgment of the Appellate Division (152 App. Div. 902, 136 N. Y. Supp. 1137) affirming a judgment in favor of the plaintiff, defendant appeals. Reversed, and new trial ordered.

William H. Harding, of Syracuse, for appellant. A. Lee Olmsted, of Syracuse, for respondent.

COLLIN, J. The death of the plaintiff's intestate resulted from his contact with an electrically charged wire belonging to the defendant while upon one of its poles. The action is to recover the damages sustained by reason of the death.

[1] Inasmuch as the decision of the Appellate Division was not unanimous; we must ascertain by a scrutiny of the evidence whether or not there was any proof permitting the jury to return a verdict in favor of the plaintiff. If there was no evidence that tended to support the verdict, the submission of the case to the jury was error. Hickok v. Auburn Light, H. & P. Co., 200 N. Y. 464, 93 N. E. 1113; King v. Village of Ft. Ann, 180 N. Y. 496, 73 N. E. 481.

Under the evidence and the charge to them, the jury might have found as the facts most favorable to the plaintiff: The pole stood in a street of the city of Auburn and belonged

to and was used by the defendant to support its wires in its business of furnishing electricity for light, heat, and power. The wires were upon cross-arms affixed to it, and carried powerful and dangerous currents of electricity. The intestate was not an employé of or connected with the defendant. He was an employé of the Auburn Telephone Company, two of whose wires were fixed to the pole at its very top and therefore above the cross-arms which supported defendant's wires. On the date of the accident, May 20, 1911, the intestate was directed by the telephone company to ascertain and report to it what was to be done to remedy a reported defective condition of the telephone wires, and he came in contact with the wire while he was executing the direction. The telephone wires were extended to defendant's pole from a pole of the telephone company which was located across the street from it and was a part of the telephone system. They passed from defendant's pole downward at an angle with it into a building. They were fixed to the pole of defendant without any express arrangement or agreement between the companies or specific consent on the part of the defendant. The defendant through a long time prior to the accident knew of and passively acquiesced in this location of the telephone wires. The intestate received the shock from which his death resulted through contact with a defectively insulated part or the dangerous position of one of defendant's wires.

The trial justice denied the motions of the defendant that the plaintiff be nonsuited, and that a verdict in its favor be directed, and submitted the case to the jury upon the theory that if they found the defendant knew that the wires of the telephone company were on its pole and acquiesced in their remaining there until further notice, and that the linemen of the telephone company would have to go up the pole from time to time, the duty of the defendant toward those linemen, as toward its own employés, was to render the situation on the pole as free from danger as it could be made by the exercise of reasonable prudence in adopting those safeguards which experience had shown would lessen the dangers that otherwise would be present, and if the defendant neglected to fulfill that duty, and the intestate was not guilty of contributory negligence, the plaintiff was entitled to their verdict. The facts which the jury found, as the evidence and the charge permitted, did not justify the submission to them or support the verdict.

[2] The pole was the private property of the defendant, which, although it was within the street, had the right, inherent in ownership, to exclusively possess, use, and control it. The telephone company was not by virtue of any arrangement or agreement with the defendant the transferee or possessor of any

fastening of the wires to the pole was, as to the defendant, a trespasser, and the termination of that relation and the rise of another could be found only through implication in the silent assent of the defendant to its action. It ceased being a trespasser because, under the verdict of the jury, the attitude of the defendant toward it in regard to the use of the pole was not hostile or prohibitive and was tacitly and impliedly permissive and acquiescent. It did not acquire any legal right to go upon or use the pole. The sufferance and acquiescence of the defendant implied its permission, and permission involves a license, but it created no right, and the defendant could at any moment have forbidden the telephone company the further use for any purpose. Under the facts as found, the relation of the telephone company to the defendant was that of a licensee as to the purposes for which it used the pole. Nicholson v. Erie Railway Co., 41 N. Y. 525.

Common apprehension, sound reasoning, and legal principles have defined or recognized two classes in those who, as licensees, enter upon and use the property of others. The one class consists, speaking generally, of those who act upon the invitation, express or implied, or the inducement of the owner or who necessarily enter on business with him, or in the discharge of a public or private duty; the other consists of those who act voluntarily, without invitation, express or implied, or inducement from the owner or not through a private or public duty. The duty of the owner to either class differs fundamentally from that to the other, and to each it is clearly and with a precision frequently impossible in the law established and prescribed. While the ascertainment of the law is easy, judicial industry, apprehension, and discrimination must frequently be exercised to decide to which class a licensee complaining of the acts of an owner belongs. The determination of that question in the present case will denote the legal duty of the defendant toward the intestate, and the conclusion as to whether or not the evidence tended to support the verdict will be consequent.

Mere permission or consent, whether express or implied from sufferance or passive acquiescence, to do a certain thing gives a license but does not necessarily imply an invitation to do it. The circumstances which may offer or sustain an implied invitation to a person to enter upon the property of another are, as the authorities attest, manifold, and whether they have that effect cannot be tested by any general and invariable rule. The Supreme Court of Massachusetts has formulated a rule potently indicative of the essentials of an implied invitation, if not comprehensive and absolute, as follows: "To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the

Manifestly the intestate in going upon the pole in the discharge of his duty as the employé of the telephone company was in the same relation to the defendant which his employer held. Sullivan v. Tioga R. R. Co., 112 N. Y. 643, 20 N. E. 569, 8 Am. St. Rep. 793.

or which he permits to be carried on there. | H. R. Co. v. Griffin, 100 Ind. 221, 50 Am. Rep. There must at least be some mutuality of in- 783; Rooney v. Woolworth, 74 Conn. 720, 52 terest in the subject to which the visitor's Atl. 411. business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant." Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463. The rule is approved in the recent cases of Norris v. Nawn Contracting Co., 206 Mass. 58, 91 N. E. 886, 31 L. R. A. (N. S.) 623, 19 Ann. Cas. 424; Stanwood v. Clancey, 106 Me. 72, 75 Atl. 293; Purtell v. Philadelphia Coal Co., 256 Ill. 110, 99 N. E. 899. In Benson v. Baltimore Traction Co., 77 Md. 535, 26 Atl. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436, the court said: "We have found no support for any rule which would protect those who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant." In the absence of some relation which inures to the mutual benefit of the owner or occupant of the property and the injured person, or to the former alone, it is generally held there is not an implied invitation on the part of the former.

The cases in which a company is under the duty of exercising reasonable care and prudence in securing the safety of the employé of another upon its pole go upon a principle inapplicable to and inhibited by the facts of this case. Illingsworth v. Boston Electric Light Co., 161 Mass. 583, 37 N. E. 778, 25 L. R. A. 552; Cincinnati Gas & Electric Co. v. Archdeacon, Adm'r, 80 Ohio St. 27, 88 N. E. 125; Downs v. Mo. & Kans. Telephone Co., 161 Mo. App. 274, 143 S. W. 889; Newark Electric Light & Power Co. v. Garden, 78 Fed. 74, 23 C. C. A. 649, 37 L. R. A. 725; Trout v. Laclede Gas Light Co., 151 Mo. App. 207, 132 S. W. 58; Chicago, etc., R. Co. v. Vandenberg, 164 Ind. 470, 479, 480, 73 N. E. 990; Sullivan v. Tioga R. R. Co., 112 N. Y. 643, 20 N. E. 569, 8 Am. St. Rep. 793.

The evidence does not authorize the claim and it is not made that there was on the part of the defendant an act of affirmative, intentional, or willful misfeasance, fault, or wrong. There was rather a negligent failure to so act that its wires would have been in safe condition and location-a default in not doing something which it might refrain from doing lawfully and without responsibil

[3] Between the defendant and the telephone company there was no mutuality. It was a matter of complete indifference to the former whether the wires of the latter were on or off the pole. There was between them no privity or contractual relation. The pole was not maintained by the defendant for the use of the telephone company as well as itself. The defendant did not receive any compensation, accommodation, privilege, or bene-ity or liability to the intestate. fit on account of the use of the pole by the telephone company. The sole relation be tween them was that created by the gratuitous permission of the defendant, implied through its passive acquiescence, that the telephone company might, until otherwise notified, have its wires as they were upon the pole and exclusively for its own benefit and convenience. The facts as found by the jury did not constitute an invitation, express or implied, to the telephone company to go upon or use the pole, and in doing so it and its employés were mere volunteers or naked licensees who used the pole subject to all the concomitant conditions and perils and to whom the sole duty of the defendant was abstention from inflicting intentional or wanton or willful injury. Nicholson v. Erie Ry. Co., 41 N. Y. 525; Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240, 97 N. E. 497, 38 L. R. A. (N. S.) 395; Cusick v. Adams, 115 N. Y. 55, 21 N. E. 673, 12 Am. St. Rep. 772; Birch v. City of New York, 190 N. Y. 397, 83 N. E. 51, 18 L. R. A. (N. S.) 595; Sullivan, Ex'r, v. Waters, 14 Irish Com. L. 466; Redigan v. Boston & Me. R. R. Co., 155 Mass. 44, 28 N. E. 1133, 14 L. R. A. 276, 31 Am. St. Rep 520; Fitzpatrick v. Glass Mfg. Co., 61

[4] The pole did not suggest that it was property which any one had a right to use and assume to be in safe condition as does the crossing of a railroad, private in fact but public in use and enjoyment (Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289, 44 Am. Rep. 377; Lamphear v. N. Y. C. & H. R. R. R. Co., 194 N. Y. 172, 86 N. E. 1115; Sweeny v. Old Colony & N. R. R. Co., 10 Allen [Mass.] 368, 87 Am. Dec. 644; Bowler v. Pacific Mills, 200 Mass. 364, 86 N. E. 767, 21 L. R. A. [N. S.] 976, 128 Am. St. Rep. 432), nor did the telephone company or the intestate use the pole through any inducement or allurment put forth by the defendant.

The principle which was decisive in Braun v. Buffalo General Electric Co., 200 N. Y. 484, 94 N. E. 206, 34 L. R. A. (N. S.) 1089, 140 Am. St. Rep. 645, 21 Ann. Cas. 370, does not apply to the facts here. In the Braun Case the intestate was injured while upon the property of his employer, across which ran the wires of the defendant therein, who might reasonably have apprehended that conditions might arise or exist through which the owner of the property or his employés might come in contact with the wires. Had the wires of the defendant here been upon a

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