insurance, repairs, and other expenses to be the terms and conditions specified therein.” paid by the tenant, so that the lessors might | But before executing "any lease or instrureceive a net annual rent of $5,000. Obvious- ment of conveyance" the guardian must ly in view of this rental, changes and improvements were required. They were to be made by the tenant subject to the approval of the landlords, and the understanding was that at least $20,000 was to be so expended. At the termination of the lease these improvements were to become the property of the lessors. But, as usually happens when such terms are imposed, the lessee was to be given an option to buy the property during his lease at a price varying from $85,000 to $95,000. In many other respects, the rights of the owners were amply protected. Not unnaturally Albert J. Levi and the wives of the two brothers expressed their approval of this lease and signed it. Some time before, however, Sidney J. Levi had been adjudged an incompetent, and one Benedict had been appointed a committee of his person and estate. Section 2348 of the Code of Civil Procedure authorized such a committee to apply to the court for an order, directing that the real estate of the ward be leased or sold where the latter's interest would be substantially promoted because the property is wholly unproductive or because of other peculiar circumstances. Acting under the authority so conferred Mr. Benedict presented his petition to the county court. It was entitled: "In the matter of the application of Charles H. Benedict, as committee of the person and property of Sidney J. Levi, an incompetent person, to lease real estate belonging to said incompetent for a term of years," and it set forth the facts that have been stated. The proposed lease was also referred to in the petition, and was attached thereto. Thereupon an order was made, appointing Mr. Benedict a special guardian of the incompetent "for the purpose of leasing and conveying such premises," and referring the matter to a referee to inquire into the merits of the application. A hearing was had; but one witness being sworn, who testified, among other things, that the whole property was worth $80,000. The lease was itself received in evidence. The referee reported favorably, stating the value of the incompetent's interest to be $40,000, and that the terms and conditions upon which the property was to be disposed of were set forth in the proposed lease submitted to the court. Thereupon the report was confirmed and the special guardian was directed "to contract for the lease and conveyance" of all the right, title, and interest of the incompetent in the property at a sum not less than its value as set forth in the report and upon make an agreement and again report its terms and conditions. Later the guardian did make such agreement, and submitted to the court his report. He set forth the terms of the proposed lease, including the option to purchase, and presented the agreement itself containing the same option to the court. He further stated that these were the best terms he could obtain. There followed an order directing the execution of the lease upon the terms contained in the agreement. Next the guardian reported the execution of the lease, and the report was confirmed. Mr. Glenn entered into possession on May 5, 1919, and expended at least $20.000 in improvements. In August Mr. Benedict died and the Schenectady Trust Company was appointed committee of the person of the incompetent in his stead. In 1923 the tenant desired to exercise his option to purchase for $85,000, and the brother and the two wives were willing to execute the deed, but the trust company refused to do so without an order of the court. The lessee therefore presented his petition, asking that such an order be granted. The trust company answered, denying the power of the court to make the order, and questioning the validity of the original proceedings. The court denied the application, and the Appellate Division unanimously affirmed this result. We granted permission to appeal to this court. We are not informed as to the theory upon which the courts below have acted. We assume, however, that they approved of some or or all of the various contentions presented by the respondent. It is therefore necessary for us to examine these questions. [1] 1. It is said that, because the title of the original petition and the prayer of the petitioner speak only of a lease of the property of the incompetent, the court had no authority to permit an option to be inserted in the lease. We think that it had. Under the circumstances the court had power to direct either a sale or a lease. Again and again its attention was called to the proposed lease. The special guardian was named "for the purpose of leasing and conveying" the premises. He was later directed "to contract for the lease and conveyance." With all this before it, even were there error in the title of the proceeding, we think it immaterial. There is no possibility that the court was misled thereby. Further we are not convinced that such error existed. The document was primarily a lease and a lease made upon the condi (147 N.E.) The court Code Civ. Proc. § 2344a, Civil Practice Act, § 1384. We have no doubt that, where under a contract authorized by the court a committee is bound to execute a conveyance, he may be compelled to act by order. The estate need not be depleted by the costs and expenses of an action in equity, even if such action might be brought under section 1385 of the Civil Practice Act. tion that an option be given. [7] 6. Nor was the denial of the motion [2, 3] 2. Assuming as the respondent main- within the discretion of the County Court tains that this was essentially a sale, the and the Appellate Division, and so not reorder was not made without jurisdiction viewable by us. To the order he desires because the facts as to the value of the the petitioner is entitled as would be a party property were not shown by the testimony to a judgment in an action for specific perof at least two disinterested persons. Court formance where a legal contract is shown, rule 56. Failure to follow the procedure and it is not unfair or inequitable. Then laid down by a mere court rule does not relief is decreed as a matter of right. Mardeprive the court of jurisdiction. An order graf v. Muir, 57 N. Y. 155; Losee v. Morey, made upon less evidence than the regulation 57 Barb. 561, and cases cited. Here it is requires may not be attacked in this pro- true we deal with the property of a ward. ceeding. Cole v. Gourlay, 79 N. Y. 527. His interests are to be considered and an order equivalent to a decree for specific performance will not be granted, unless the contract was such as would be made by a guardian acting for his best interests. In many cases it may be incumbent upon the petitioner to show this fact. Sherman V. Wright, 49 N. Y. 227. But here a court having jurisdiction has examined the contract. It approved and authorized it to be made. It has determined that the interests of the incompetent will be substantially promoted by the lease as a whole. Doubtless there are conditions favorable to the lessee that might be stricken out with advantage to the incompetent. Could possession be retained and rent still exacted it would be so. This, however, is not the test when inquiry is made as to whether the conveyance is for the interests of the ward. Upon this application, no facts being at issue, we think the action to be taken by the courts below did not rest in their discretion. [4] 3. It is claimed that the original proceeding was terminated when the order was made confirming the report of the special guardian. No jurisdiction remains which justifies the granting of the order here sought. We do not agree with this proposition. Control of the court over the proceeding exists until the incompetency ends. Code Civ. Proc. § 2361; Civil Practice Act, § 1403; Matter of Price, 67 N. Y. 231; Matter of Valentine, 72 N. Y. 184. [5] 4. The proceeding was begun by a petition of the committee of the incompetent as authorized by section 2349 of the Code. The present application is not a new proceeding only to be initiated by persons mentioned in that section. As we have said, it is merely a continuation of a proceeding properly begun, and the court has jurisdiction to grant relief to any party involved therein, and that relief may not be demanded only by the person against whom it is sought. [6] 5. Nor is the only remedy of the petitioner an action for specific performance. The Supreme Court, and in proper cases the County Court, has now jurisdiction over the property of incompetents formerly vested in the chancellor. Matter of Blewitt, 131 N. Y. 541, 30 N. E. 587; Code Civ. Proc. § 2320; Civil Practice Act, § 1356. This jurisdiction it exercises through its committee. Code Civ. Proc. § 2322; Civil Practice Act, § 1358. It should preserve the property from waste or destruction. Code Civ. Proc. § 2321; Civil Practice Act, § 1357. The committee is subject to the control of the court with respect to the exercise of his duties. Code Civ. Proc. 2339; Civil Practice Act, § 1377. He may be compelled by order to execute a conveyance in certain cases where the incompetent would have been obligated to make the same. [8] 7. Finally we may not now inquire whether in the original proceeding the discretion which undoubtedly did rest with the court was exercised wisely or unwisely. That matter has once for all been finally adjudicated. The order of the Appellate Division and that of the County Court must be reversed, with costs in all courts, and an order entered" granting the petitioner the relief demanded by him, with $10 costs. Costs payable out of the estate. HISCOCK, C. J., and CARDOZO, POUND, CRANE, and LEHMAN, JJ., concur. MCLAUGHLIN, J., absent. Ordered accordingly. (239 N. Y. 448) (Court of Appeals of New York. Feb. 25, 1. Master and servant 361-Answer in motorman's action for injuries held not to show he was defendant's employee, whose only remedy was under Compensation Act. not merely of the railroad company whose car he was running, but also of a group of other companies, including the company with whose car he collided. By force of this relation, service for one line became equivalent, it is argued, to service for the others. To operate a car for any was to operate it for all. From this the conclusion is deduced that the plaintiff is in the position of one suing his own employer for an injury arising out of and in the course of a hazardous employment. For one so situated, the remedy under the Workmen's Compensation Act (Consol. Laws, c. 67) is exclusive of every other. Where plaintiff motorman, employed through employment bureau of system of railroads, of which both defendant and plaintiff's employer were members, was injured by collision, general allegations of answer that plaintiff was employed by defendant as well as by his immediate employer, and hence that action was for injuries arising out of employment, and therefore remedy was only under Work-road companies operating street surface railmen's Compensation Act, held not to show contract of employment in bar of action, particularly as such a contract would require infer ence of illegal partnership of railroads for joint operation. 2. Master and servant 361-Railroad may not be general employer of servants of another. One railroad held not to have power to become general employer of servants of another, having duty to run its own lines only. This is the defense in outline, but to determine its validity, we must state it more precisely. The defendant says that ten rail roads in the counties of New York, Bronx, and Westchester, constitute what is known as the Third Avenue Railway system; that these companies, of which defendant is one, jointly maintained an employment bureau and school for instruction for conductors and motormen; that the plaintiff made application to the companies comprising the said system for employment as motorman, and received instructions in their school; that, after completing his course of instruc Appeal from Supreme Court, Appellate Di- tion, he was engaged generally as a motorvision, First Department. Action by James Doran against the New York City Interborough Railway Company. From an order of the Appellate Division (209 App. Div. 819, 204 N. Y. S. 904), affirming an order of the Special Term, denying plaintiff's motion to strike out defense, plaintiff appeals by permission. The Appellate Division certified the following question: "Is the first separate and complete defense set forth in the answer to the complaint herein sufficient in law?" Question answered; orders reversed. Leonard F. Fish and Thomas J. O'Neill, both of New York City, for appellant. Addison B. Scoville and Alfred T. Davison, both of New York City, for respondent. CARDOZO, J. Plaintiff, a motorman, was hurt in a collision between the car that he was operating and another. The car operated by him belonged to his employer, the Union Railway Company of New York. The car that ran into him belonged to another corporation, the New York City Interborough Railway Company, which maintains a different line. He has sued this latter company for the negligence of its servant. The case is here upon the pleadings, the plaintiff challenging by motion the validity of a defense. The theory of the answer is that the plaintiff was in truth the employee, man by the companies comprising the said system, "without any specific arrangement with the plaintiff as to what lines he would be used upon;" that since then he has worked as a motorman on various lines of the Union Railway Company, and also on various lines of the defendant; that at all the times mentioned in the complaint "he was generally employed" by the defendant and the companies allied with it; that each and every company has secured compensation to its employees in accordance with the Workmen's Compensation Act; that the injuries suffered by the plaintiff while acting as a motorman on one of the lines of the Union Railway Company arose out of and in the course of his employment as a motorman of all the companies, members of the system; and hence that the plaintiff is without a remedy except under the statute. [1] We think the contract pleaded is ineffective as a bar. The substance is merely this: That the plaintiff's application for employment was accepted by an employment bureau maintained by a group of railroads with the understanding that he would be informed thereafter of the particular lines into whose service he was to enter. This is far from the statement of an agreement that when the assignment was made to one line or another, the plaintiff, while in the service of one, was to be in the service of the others. A relation so extraordinary, if it is to be (147 N.E.) made the basis of a defense, must rest upon something more than words of doubtful import or equivocal conclusions. "Employment, like any other contract, presupposes understanding" (Murray v. Union Ry. Co. of New York City, 229 N. Y. 110, 113, 127 N. E. 907), by which is meant, of course, the objective signs of understanding. "The rela tion cannot be thrust upon the servant without knowledge or consent." Murray v. Union Ry. Co. of N. Y. City, supra. HISCOCK, C. J., and POUND, CRANE, ANDREWS, and LEHMAN, JJ., concur. MCLAUGHLIN, J., absent. Orders reversed, etc. (239 N. Y. 452) TRASHANSKY v. HERSHKOVITZ et al. (Court of Appeals of New York. Feb. 25, 1925.) Appeal and error 1175(5)-Evidence of negligence of subway company as to unguarded hole in street held not to justify dismissal of complaint by Appellate Division after verdict. Evidence as to whether telegraph subway company was guilty of negligence which was proximate cause of death of one struck by automobile, of which driver lost control after driving into unguarded hole in street near excavations being made by company, held not to justify Appellate Division in dismissing complaint after verdict. [2] We are not unmindful of the allegation, much relied on by the defendant, that the plaintiff was employed generally by all the members of the system. There are times and contexts in which such a pleading might be adequate. Here the description of the employment is so qualified and neutralized by a statement of the circumstances as to amount to nothing more than the pleader's statement of the law. We have said that the agreement would be extraordinary if read as the defendant reads it. It would be more than extraordinary. It would also be illegal. It would involve a partnership of railroads for joint or consolidated operation. There was no present relation of employment between the plaintiff and any member of the system till an assignment to duty Action by Hannah Trashansky, as adminhad been made and accepted. Till then, istratrix of the estate of Abraham Trashanthere was, at most, an executory agreement sky, deceased, against Sam Hershkovitz and for an employment to begin thereafter and others. From a judgment of the Supreme to terminate at will. At once, upon assign- Court, entered on an order of the Appellate ment, there sprang into being a new relation with groups of rights and duties ap 953), modifying a judgment against defend(209 App. Div. 820, 204 N. Y. S. propriate to itself. The plaintiff, serving ant Hershkovitz, and reversing a judgment, on one road, was not in the special employ-dismissing the complaint, as against defendment of one master and the general employment of others, the remaining members of the ant Consolidated Telegraph & Electrical Subgroup. He was in the undivided employ-way Company, plaintiff appeals. Modified, ment of the master to whom obedience was due. None of the other companies had any power to employ him except in its own service and for the promotion of its chartered objects. None of them had power to become a general employer of the servants of the others, with the result that accidents in the course of service to the others would be made accidents in the course of service to itself. We are not at liberty to infer from vague and evasive allegations that the defendant became a party to a contract unauthorized by law. If conflicting inferences may reasonably be drawn, we draw the one of regularity. The business of a railroad is to run its own lines. The law does not permit it at its pleasure to run the lines of others. People v. North River Sugar Refining Co., 121 N. Y. 582, 623, 24 N. E. 834, 9 L. R. A. 33, 18 Am. St. Rep. 843. The order of the Appellate Division and that of the Special Term should be reversed, with costs in all courts, and the question certified answered in the negative. Appeal from Supreme Court, Appellate Division, First Department. Division and, as so modified, affirmed. Alfred R. Page and Abraham M. Fisch, both of New York City, for appellant. Charles I. Taylor and Thomas H. Beardsley, both of New York City, for respondent. LEHMAN, J. Plaintiff's intestate was struck and killed by an automobile driven by the defendant. Hershkovitz on March 26, 1923. The evidence shows that Hershkovitz drove the automobile south on Attorney street to Broome street. He turned west into Broome street, and in some manner lost control of his automobile, which skidded into and along the north curb of Broome street. It ran into the plaintiff's intestate, who was standing at the rear of a truck which he was unloading, near the north curb of Broome street, some distance west of the corner of Attorney street. The evidence as to how the accident occurred and the cause of Hershkovitz' losing control of the car is somewhat confused. At the time of the accident the surface of the street at the corner of Attorney and Broome streets was undoubtedly not in its usual condition. The defendant Consolidated Telegraph & Electrical Subway Company, at the time of the accident and for some time prior thereto, was making some excavations in Attorney street at or near the corner of Broome street, under permit from the city. It had undoubtedly excavated three large holes there, but these three holes were properly guarded, and no negligence on the part of the subway company in connection with these excavations has been shown. It is fairly inferable from the testimony of all the witnesses that Hershkovitz ran the car into some hole or depression in the street or some object lying upon its surface, which deflected the car from its course, and it is the plaintiff's claim that the defendant subway company had excavated, not only the three large holes which were properly guarded, but also a smaller hole which was left unguarded, and that the presence of this smaller unguarded hole was a proximate cause of the accident. Whether this contention was correct was submitted to the jury, which brought in a verdict, not only against the defendant Consolidated Telegraph & Electrical Subway Company, but also against the defendant Hershkovitz and the company of which he was then president. Upon appeal to the Appellate Division the judgment against Hershkovitz was modified, and the judgment against the Consolidated Telegraph & Electrical Subway Company reversed and the complaint dismissed. The order of reversal is on the ground that: "The findings of fact implied in the verdict of the jury that said appellant Consolidated Telegraph & Electrical Subway Company was negligent, and that any act of it was a proximate or contributory cause of the accident resulting in the death of plaintiff's intestate, are against the evidence and also on the law, in that there is no evidence to sustain such findings." The evidence against the subway company in regard to these findings may not be satisfactory, but we think there is some evidence to sustain them, and the complaint should not have been dismissed. Certainly there is evidence that there was an unguarded opening in the street near the defendant's excavations. There is evidence that Hersh kovitz drove the car into that hole, and he claims that he then lost control of the steering wheel and did not regain it before the car struck the plaintiff's intestate. Doubtless there is some inconsistency in his testimony between the distance he says the car went after he drove it into the hole and the distance it must have gone in order to strike the intestate where he stood, but the jury could believe that he did drive into the hole where he and others testified it existed; that he did lose control of the steering wheel; and that he did not regain control thereafter, even though the jury, in order to reach that conclusion, may have been com pelled to disregard some of his and other witnesses' estimates of distances as inaccurate. Though the jury might under these circumstances properly hold, as they apparently have held, that Hershkovitz was negligent, the testimony of a number of witnesses of the fall of the car into an unguarded hole, and of its gyrations thereafter till it struck the intestate, support an inference that the existence of the hole itself constituted a proximate cause for all that followed. If the subway company was responsible for this condition, it may be held in damages for its natural result. The subway company was digging near the spot, under permit from the city. Its permit was sufficient to include a hole in that place. No one else had a permit to open the surface of the street there, and there is no evidence that any other person or corporation did any work there. A mere denial of the existence of a hole there is not conclusive, in the face of the affirmative testimony of its existence. If it existed, then under the circumstances disclosed, and in the absence of any reasonable explanation showing it might have been placed there by some other person, an inference might be drawn that it was placed there by this defendant. The judgment of the Appellate Division should be modified so as to grant a new trial, and as so modified affirmed, with costs to abide the event. HISCOCK, C. J., and CARDOZO, POUND, CRANE, and ANDREWS, JJ., concur. MCLAUGHLIN, J., absent. Judgment accordingly. |