but merely to supply others who will heal or attempt to heal on their own responsibility."

[1] The doctrine of implied waiver is logically weak. It rests on the patent fiction that the patient has voluntarily relinquished a known right by coming to the hospital for treatment. As the trust fund doctrine of total immunity was rejected in the Hordern Case on the ground that purity of aim did not justify a tort when the victim was a stranger to the charity, so it may be said with equal force that one who is brought unconscious to a charitable hospital as a patient does not assume the risk of malpractice on the part of the hospital; that one who pays a substantial sum for room and care is not in any true sense, according to common speech, the recipient of charity, and that only by an hyperbole may a hospital which collects $24.50 a week for board, lodging, and care in a semiprivate ward be classed with the Good Samaritan, but it unquestionably has been stated to be the law of this state that the beneficiary of a charitable trust may not hold the corporation liable for the neglect of its servants. Hordern v. Salvation Army, supra, page 237 (92 N. E. 626).

In the Schloendorff Case, p. 132 (105 N. E. 92), it was suggested in passing and by way of illustration merely that orderlies are servants of the hospital for whose negligent acts the corporation must respond. The status of an orderly is determined by the nature of the work he is employed to do rather than by the payroll designation of his position. Broadly speaking, he is a hospital attendant who does general work, while a nurse is one who cares for the sick. The line of demarcation is not clearly drawn. The orderly at times does nursing, and a nurse may be put to the inconvenience of waiting on herself. Here the orderly was engaged in a specific act for caring for the sick woman, the plaintiff. He was not engaged in general work, such as running errands, lifting patients, or the like. The distinction is sought to be made between exoneration from liability for the negligence of physicians and nurses employed by the hospital to care for its patients, and for the negligence of cooks, maids, and orderlies who also act for the hospital in its care of patients. It is difficult to place such distinction on the unshifting rock. If a nurse should carelessly apply one hot water bottle, and an orderly should carelessly apply another to the same patient at the same time, and two burns were thus produced, it would require an acute mind to formulate satisfactorily the rule of liability which would exempt the hospital in the one case and hold it in the other.

1. Master and servant 121 (6)-Employer held not liable for injury to employee using standard machine.

Where meat chopper by which plaintiff was injured was of standard make and in common use and guarded against ordinary injuries to operator, fact that a machine had been invented which guarded against remote and doubtful injuries, and was not in common use, held not to warrant inference that employer should have foreseen and guarded against such injuries.

2. Master and servant 97(2)—Employer held not bound to foresee injury from stick used in connection with meat chopper.

Where stick furnished operator of meat chopper to push meat into hopper was of difbeen used by operator for some days without ferent shape than those ordinarily used, but had trouble, was of sufficient length and thickness to permit operator to push meat into hopper without injury, and only failed in its purpose upon flying out of operator's hands, held that employer was not bound to foresee that its use might result in injury.

Pound, Crane, and Andrews, JJ., dissenting in part.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by William D. O'Connor against Richard Webber, Jr., and others, copartners under the firm name of Richard Webber. From a judgment of the Appellate Division (205 N. Y. S. 941) affirming a judgment in favor of plaintiff, defendants appeal. Re[2] When we come to apply the rationale versed, and complaint dismissed.

(146 N.E.)

E. C. Sherwood, of New York City, for appellants.

and the defendants were not required to employ experts to invent a new machine with a Sydney A. Syme, of Mt. Vernon, for re- device which might guard against "remote spondent.

Upon

and doubtful dangers." They complied with
their full duty when they provided a machine
of standard make and in common use.
the present appeal the record shows that ma-
chines containing such a device had previous-
ly been invented, and could be purchased on
the market, and it is urged that this new evi-

LEHMAN, J. The defendants in June, 1913, maintained a meat market in Mt. Vernon. They employed the plaintiff, a boy of 14, in their business. The only machine in the defendants' place of business was a meatchopping machine. The plaintiff while en-dence shows that others foresaw and guarded gaged in chopping meat in this machine sustained serious injuries. A recovery for the consequent damages was reversed by this court in 1916. O'Connor v. Webber, 219 N. Y. 439, 114 N. E. 799. After various vicissitudes in the courts below the plaintiff has recovered, and seeks to sustain a second judgment for his injuries.

The evidence as to the manner in which the accident occurred is concededly substantially the same as at the earlier trial. It has been succinctly summarized as follows:

"The meat-chopping machine is run by electricity. At the top there is a hopper or funnel, four inches high, its diameter about four or five inches at the top and two and a half or three inches at the bottom. Beneath it is a revolving worm or screw, covered on all sides and open only at the top of its junction with the hopper. The meat is fed into the hopper and pushed down with a stick. The stick, touching the screw, flew out of the plaintiff's hand, and with the shock his hand slipped into the machine and the revolving screw cut off the fingers."

[1] The undisputed evidence at both trials is that the chopping machine was of standard make and in common use. Apparently a boy operating the machine could be injured only if his hands came in contact with the worm at the bottom of the funnel. The boy here was given a stick to push down the meat in the funnel, so that his hands should not come in contact with this worm. He understood as well as an adult that to touch the worm would be dangerous, and in fact the accident occurred while he was using the stick and through accidental contact with the screw. Quite evidently, therefore, the defendants can be held liable for the plaintiff's injury only if by the exercise of reasonable prescience they might have foreseen that the plaintiff's hand might come in contact with the worm, even though the plaintiff used the stick which they provided.

against the danger, and permits the inference that the defendants, by the exercise of reasonable prudence, could likewise have foreseen and guarded against it. In our opinion the evidence falls far short of permitting such an inference. The machines equipped with such a device were not in common use. Machines without such device were the only ones in common use and of standard make. In fact the same condition is true to-day. The possibility that a man might thrust his hand against the worm or screw, and that injury would result may have led inventors to seek a device that would remove the possibility, but the obligation of an employer to purchase such a device, even if he knew of its existence, depends upon whether the danger was such that in the exercise of reasonable care it would be foreseen and guarded against, or whether it was "remote and doubtful."

In the present case the evidence fails to allow an inference that the defendants either knew or, in the exercise of proper care,

should have learned of the existence of these machines not in common use, and the danger of contact with the screw by any person using a stick to push down the meat in the hopper still remains, in spite of the new evidence, remote and doubtful. Upon this appeal, as upon the earlier appeal, we find that the continued use of the machine of standard make did not constitute negligence.

[2] The same considerations guided the court on the last appeal to the conclusion that the evidence then presented did not justify a finding that the defendants were negligent in failing to furnish a stick of different shape. The stick furnished was somewhat longer than the hopper, and was somewhat narrower at the top, where plaintiff held it, than at the bottom. It is claimed that when the bottom of the stick hit the screw it was thrown up and flew out of the plaintiff's hand; that the plaintiff's hand then slipped down into the hopper and was torn by conThe danger of injury, if the operator of the tact with the screw. The evidence produced machine placed his hand against the worm or at the second trial shows that the maker of screw was obvious; but this court pointed out the machine used by the defendants furupon the earlier appeal that there was no rea-nishes no stick for use in connection with the son to believe that any person would touch machine, but that a competing manufacturer the screw, for "against casual contact by the furnishes with each machine sold a stick thoughtless it was protected by the funnel," which is longer than the stick provided by

the defendants, and broader than that stick, seen by reasonable care. Here, others have at the lower end, so that it almost fills the found sticks shapped like potato mashers conbottom of the hopper, and that butchers gen- venient, perhaps because they could be purerally use for this purpose an ordinary po- chased cheaply; perhaps because the narrow tato masher, purchased at a five and ten cent handle coupled with a broader bottom, which store, or an article of similar shape whittled permitted their convenient use to press down down to fit the bottom of the hopper with potatoes, permits their equally convenient use slight play. It is urged that this evidence to press down meat, but there is no ground justifies the inference that the stick provided for an inference that any dangers to be apby the defendants was not of the size and prehended in their use dictated their shape. shape in common use, and was not fit for its The danger of such a stick, as the defendants purpose. That the longer sticks used by oth-furnished the plaintiff, flying completely out er butchers permit a firmer grasp, and that the operator's hand takes naturally a position which would make it difficult or impossible for the hand to slip into the hopper, and the lesser play of the stick at the bottom of the hopper would prevent the stick from flying out. We will assume that butchers ordinarily use a stick of different shape, and that the accident would not have occurred if the defendants had provided such a stick.

The question still remains whether the defendants should in the exercise of reasonable prudence have foreseen that injury might occur from the use of the particular stick provided. Until a few years before the accident it appears that butchers were accustomed to use their hands to push down the meat. The use of a stick for this purpose was intended to remove the danger of the hand coming in contact with the screw. The stick provided by the defendants had been used by the plaintiff for some days without any trouble. It failed in its purpose only when it caught in the screw, flew completely out of plaintiff's hand and out of the hopper, and the plaintiff's hand slipped into the hopper in its place. Should a reasonable man have foreseen that a stick which was somewhat shorter and somewhat narrower at the base than the usual stick might result in such an accident? The length and thickness of the stick was sufficient to permit the plaintiff to push the meat down in the hopper without contact with the screw, so long as the stick remained in plaintiff's hand, and we think that we should be imposing upon the defendants an obligation far beyond reasonable care if we should hold them culpable for failure to foresee that a stick which was somewhat shorter and narrower at the bottom than the sticks in common use might fly out of the plaintiff's hand. Common utensils like potato mashers frequently assume a traditional shape which has proven convenient or economical. When a utensil is needed for some similar purpose it may assume a similar shape, yet no negligence may be ascribed to one using a utensil of a different shape, unless the difference in shape creates a danger which might be fore

of the hopper and out of plaintiff's hand, was too remote to permit a recovery on the ground that defendants should have foreseen or guarded against it.

Since we are of the opinion that the use of the meat-chopping machine and of the stick in connection therewith even by a boy under 16 created only a remote danger, it is unnecessary to pass upon the plaintiff's contention that a violation of section 483 of the Penal Law (Consol. Laws, c. 40) would be evidence of negligence. It follows that the judgment should be reversed and the complaint dismissed.

In view of our conclusion that the plaintiff as a matter of law failed to prove any cause of action, and that the complaint should have been dismissed upon defendants' motion, we do not pass upon the question of whether because that motion was made and no request thereafter expressed to go to the jury upon questions of fact the court had power to pass upon any questions of fact which might exist, including even the amount of damages sustained. We merely point out that waiver of the right to go to the jury in such a case as this rests on the element of intent. Where counsel in order to protect his client's rights makes a motion for judgment in his favor on the ground that only questions of law are involved, a trial justice should not be too hasty in assuming that by such motion he intends to waive his right to have the jury pass upon questions of fact held to exist in the event of an adverse decision upon his motion. Complaints such as have arisen in this case could easily be avoided if the trial justice ascertains whether the inference of waiver is based solely upon an ancient legal fiction or upon actual intent.

The judgment should be reversed, and the complaint dismissed, with costs in all courts.

HISCOCK, C. J., and CARDOZO and McLAUGHLIN, JJ., concur.

POUND, CRANE, and ANDREWS, JJ., dissent from dismissal of complaint.

Judgment reversed, etc.

(239 N. Y. 199)

(146 N.E.)

S. A. WENGER & CO., Inc., v. PROPPER
SILK HOSIERY MILLS, Inc.

(Court of Appeals of New York. Dec. 16, 1924.)

1. Sales 199, 202(5)-Rules as to passage of title subordinate to intention; title held to pass prior to shipment.

The operation of the rules as to passage of title to goods under contracts of sale is subordinate to intention, and where contract required "reimbursement" by purchaser prior to time of shipment, in view of Personal Property Law, §§ 99, 100, it indicated that goods were to be purchased by seller for buyer, so that title passed before duty of shipment arose.

POUND, J. The petitioner herein sets forth a written contract for the purchase and sale of silk entered into by it with the Propper Silk Hosiery Mills, Inc., which contains the following arbitration clause:

"Arbitration. In the event of any dispute arising relative to the fulfillment of any of the above terms, and failing an amicable adjustment, it shall be settled by arbitration, under the rules of the Silk Association of America, the decision of the arbitrators to be final and binding on both parties."

It further alleges that a dispute has arisen between the parties under the contract with respect to certain bales of raw silk. Petitioner asserts that the silk was purchased by it for the account of the Propper Company and marked and appropriated to the contract, stored in petitioner's go-downs at Where contract of sale of silk provided that Yokohama at the risk of the Propper Com"sales governed by Raw Silk Rules and Regula-pany, and destroyed by earthquake and fire; tions of the Silk Association of America," such rules are part of the contract.

2. Sales 58-Where contract provided that sales governed by certain rules, such rules became part of contract.

3. Contracts2922, New, vol. 11A Key-No. Series-Duty of court to enforce agreements as to arbitration.

Where parties to contract have agreed that disputes relative to contract shall be settled by arbitration, courts should enforce their agreement under Arbitration Law, § 3, rather than undertake itself to settle disputes or to narrow the field of arbitral disputes.

4. Contracts➡2921⁄2, New, vol. IIA Key-No. Series-Where parties have selected tribunal for arbitration, court will not ordinarily interfere.

Where contract of sale contains an arbitration clause, and a bona fide dispute arises over performance of contract, court should not say as matter of law that there is nothing to arbitrate, since, where parties have selected their tribunal, court will not interfere unless substantial reasons are shown.

that petitioner demanded payment of the purchase price, which was refused; that an amicable adjustment has failed; and that the court should order arbitration of the dispute according to the terms of the contract.

The Propper Company contends that under the terms of the contract title did not pass to it until the silk was shipped, and that there is no dispute arising relative to the fulfillment of any of the terms of the contract

because as matter of law the terms of the contract have not been fulfilled by petitioner. The Appellate Division has accepted this view of the transaction and denied the motion. It says:

"It is apparent upon the face of the contract that it was a C. I. F. contract. It provides:

*

"Price per pound cost, freight and insurance, New York. Import duties or taxes, if levied to Shipment from be for buyer's account. Yokohama end of July/Aug./Sept. Marine insurance to be covered by shippers. Reimbursement by four months sight draft on New York for which a banker's letter of credit to be fur

Appeal from Supreme Court, Appellate Di- nished by buyer within ten days prior to time of vision, First Department.

shipment.'"

In the matter of the application of S. A. Wenger & Co., Inc., for an order directing [1] But the operation of the rules as to that an arbitration proceed between petition- passage of title is subordinate to intention. er and the Propper Silk Hosiery Mills, Inc. Standard Casing Co., Inc., v. California CasFrom an order of the Appellate Division (209 ing Co., 233 N. Y. 413, 416, 135 N. E. 834. The contract refers to "reimbursement" beApp. Div. 784, 205 N. Y. S. 566) reversing an order of the Special Term granting said ap-ing made by the purchaser prior to the time plication, the Propper Silk Hosiery Company of shipment, and these words seem to indiappeals. Reversed, and order of Special cate that the petitioner was to purchase the

Term affirmed.

goods for the buyer so that title passed before the duty of shipment arose. Personal

Max D. Steuer, and Samuel Gottlieb, both Prop. Law (Cons. Laws, ch. 41) §§ 99, 100. of New York City, for appellant.

[2, 3] The contract provides: "Sales govHarry M. Marks, of New York City, for erned by Raw Silk Rules and Regulations of respondent. the Silk Association of America." The rec

ord does not set forth the rules. They are, however, a part of the contract. They confer rights upon both parties. The parties have agreed that their disputes arising relative to the fulfillment of the terms of the contract shall be settled by arbitration. It is the duty of the court to enforce their agreement rather than to undertake itself to settle the dispute or to narrow the field of arbitral disputes. Matter of Berkovitz v. Arbib & Houlberg, Inc., 230 N. Y. 261, 130 N. E. 288. The Arbitration Law (Cons. Laws, ch. 72, § 3) pro

vides:

"A party aggrieved by the failure, neglect or refusal of another to perform under a contract or submission providing for arbitration may petition the Supreme Court, or a judge thereof, for an order directing that such arbitration proceed in the manner provided for in such contract or submission. * * * The court, or a judge thereof, shall hear the parties, and upon being satisfied that the making of the contract or submission or the failure to comply therewith is not in issue, shall make an order directing the parties to proceed to arbitration in accordance with the terms of the contract or submission."

(239 N. Y. 203)

DERY v. BLATE et al. (Court of Appeals of New York. Dec. 16, 1924.)

I. Sales 82(1)-Under contract to sell on credit fixing terms but not amount thereof, seller cannot compel acceptance for cash on delivery.

Under contract to sell on credit, terms of

which are fixed, but amount to be determined
chaser for cash on delivery.
by seller, he cannot compel acceptance by pur-

2. Sales 54-Ambiguities in contract drawn
on seller's order blank resolved against him.
Ambiguities in contract, drawn on seller's
order blank, must be resolved against him.

Appeal from Supreme Court, Appellate Division, First Department.

Action by D. George Dery, against Samuel A. Blate and others, copartners under the From firm name of Blate Bros. & Love. judgment on order of Appellate Division (209 App. Div. 467, 205 N. Y. S. 15), reversing order of Special Term denying motion of defendant for judgment on pleadings, plaintiff appeals. Affirmed.

I. Gainsburg and Joseph P. Segal, both of New York City, for appellant.

Edmund G. Joseph and Harold R. Zeamans, both of New York City, for respondents.

[4] We have a contract and a refusal to arbitrate under a contract. Unquestionably a claim may be so unconscionable or a defense so frivolous as to justify the court in refusing to order the parties to proceed to arbitration; but where a bona fide dispute in fact arises over the performance of a contract of purchase and sale, it does not devolve upon the pleadings dismissing the complaint. The the court to say that as matter of law there is nothing to arbitrate. It may be that un-question is whether the complaint states facts

POUND, J. Defendants have judgment on

sufficient to constitute a cause of action. Civil Practice Act, § 277 et seq.

.der the rules of the Raw Silk Association matters of strict law are subordinated to a The action is brought by the seller against course of dealing or to the equities of the case. Difficult questions of law as well as of the purchasers on a written contract for the fact may arise. By the terms of the con-purchase and sale of silk goods, satin and tract disputes whether of law or fact are arbitrable. Traders may prefer the decision of the arbitral tribunal to that of the courts on such questions. When they have selected their tribunal, the court ought not to interfere with them unless very substantial reasons are shown. Wood v. Tunnicliff, 74 N. Y. 38, 44; Smith, Coney & Barrett v. Becker, Gray & Co. (1916) 2 Ch. 86.

taffeta, to recover damages for nonacceptance of such goods. The goods were to be delivered one-fifth of each quantity in May, June, July, August, and September, 1920, on terms indicated as follows: "Term: 6/10/60," which means 6 per cent. discount, 10 days, 60 days extra, and would have given defendants 70 days to pay for the goods. But below the signature to the contract in fine type are The order of the Appellate Division should these words: "Subject to the rules of the be reversed, and that of the Special Term af- Silk Association of America as printed on firmed, with costs in this court and the Ap-back," and among the rules thus printed is pellate Division.

HISCOCK, C. J., and CARDOZO, McLAUGHLIN, ANDREWS, and LEHMAN, JJ.,

concur.

CRANE, J., absent.

Ordered accordingly.

the following: "(8) The amount of credit to be extended to buyer may be determined at any time by seller."

The complaint alleges that this was one of the terms of the contract, and that it was further intended and understood thereby that a financial statement should be furnished by the buyers to determine the amount, if any, of credit to be extended; that before the de