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(146 N.E.)

firmed, with costs, and the question certified | 6. Judgment 181-Remedy by summary to us should be answered in the negative.

HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, and LEHMAN, JJ., concur. CRANE, J., absent.

Order affirmed.

(239 N. Y. 267)

CURRY V. MACKENZIE.

judgment is to be administered in furtherance of justice.

Remedy by summary judgment under civil practice rule 113 is to be administered in furtherance of justice.

7. Judgment 185-Summary judgment held not warranted, in view of denial that defendant received bill of items.

Where complaint pleaded cause of action upon an account stated, affidavit in support of

(Court of Appeals of New York. Jan. 21, plaintiff's motion for summary judgment under

1925.) /

1. Judgment 181, 185-Rule as to grounds and affidavits for summary judgment stated. Court, before rendition of summary judgment for plaintiff under civil practice rule 113, must be convinced that issue is not genuine but feigned, and that there is in truth nothing to be tried by affidavits clearly and completely proving the cause of action by affiants who speak with knowledge and by failure on part of defendant to satisfy court by affidavit or other proof that there is any basis for his denial, or any proof in his defense.

2. Judgment 185-Summary judgment in action for labor and material held unwarranted.

Where plaintiff's motion for summary judgment under civil practice rule 113, for labor done and material furnished in construction of yacht, for defendant was supported by affidavit of officer of plaintiff's assignor, stating that defendant was formerly president of assignor, and that while he was president the assignor built a yacht for him, and where list itemizing the labor and material was appended thereto, and where défendant's opposing affidavit stated that other officers and stockholders of assignor acquiesced in construction of yacht for defendant that no account was kept of labor and material used in construction; that on certain date he was informed that further work on yacht would have to be paid for by him; and that he did in fact pay for work done thereafter, court was not warranted in giving summary judgment for plaintiff, a controversy for trial being presented.

3. Work and labor 24 (2)-Part payment cannot be proved under a general denial.

civil practice rule 113, that copy of bill of items was mailed to defendant on certain date by deposit in post office box, and that no objection to any of the items has been made, held not to entitle plaintiff to summary judgment in view of defendant's denial that statement was received.

8. Evidence 71-Evidence of mailing merely creates presumption that letter reached destination.

Evidence of mailing does no more than create a presumption that letter reached destination.

9. Account stated 6(2)-Debtor did not assent to items by failure to object, where parties were already in litigation.

Debtor did not assent to items by failure to object on receipt of bill of items, where parties were in litigation at such time, or within few days thereafter.

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

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Wilfred J. Curry against James M. Mackenzie. From a judgment entered on an order of the Appellate Division of the Supreme Court (208 App. Div. 849, 204 N. Y. S. 901), reversing an order of the Special Term, and granting plaintiff's motion for summary judgment under civil practice rule 113, defendant appeals. Judgment of Appellate Division reversed, and order of Special Term affirmed.

See, also, 239 N. Y. 509, 147 N. E. 173.

James E. Woods, of New York City, for

In action for labor and material, part pay-appellant.
ment must be pleaded, and cannot be proved
under a general denial.

4. Judgment 181-Answer shown imperfect
on plaintiff's motion for summary judgment
may be amended at trial or sooner.
Answer shown to be imperfect on plaintiff's
motion for summary judgment may be amended

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Walter B. Hall, of New York City, for respondent.

CARDOZO, J. [1] Civil practice rule 113 permits summary judgment at times in favor of a plaintiff, though material averments of his complaint have been traversed by the answer. To that end there must be support

ing affidavits proving the cause of action, and that clearly and completely, by affiants who speak with knowledge. There must be a failure on the part of the defendant to satisfy the court "by affidavit or other proof" that there is any basis for his denial or any

truth in his defense. The case must take the | is either a fabrication altogether, or at best usual course, if less than this appears. To an uncertain estimate. There is no attempt justify a departure from that course and the award of summary relief, the court must be convinced that the issue is not genuine, but feigned, and that there is in truth nothing to be tried. General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133, 139 N. E. 216.

Plaintiff's complaint is in two causes of action, each growing out of the same transaction, though framed as a separate count. The first cause of action is for work done for the defendant and materials supplied to him by plaintiff's assignor, the Jersey City Dry Dock Company, between August 9, 1921, and September 13, 1922, in the construction of a gasoline yacht at his special instance and request. The reasonable and agreed value of the labor and materials is stated to be $3,277.88. The second cause of action is upon an account stated, which is said to have resulted from the retention by the defendant, without objection or correction, of an account current and bill of items. The defendant's answer is in substance a general denial. Upon this motion for summary judgment, the plaintiff has submitted the affidavit of one Kolb, the secretary and treasurer of plaintiff's assignor. In support of the first cause of action the affiant states that the defendant was formerly the president of the Jersey City Dry Dock Company, and that while he was president the company built a gasoline yacht for him at its plant in Jersey City. Annexed to the affidavit is a list of the material used in the construction of this yacht, and of the labor there employed. The affiant states that he has carefully checked off the list, which gives no dates, though it does give quantities and values, and that the items there enumerated are the items actually paid. The defendant states in an opposing affidavit that the building of the yacht "was acquiesced in and consented to by the other officers and stockholders of the Jersey City Dry Dock Company;" that "your deponent was allowed to proceed with the same"; and that "no account was kept of labor and material used in said construction." He says that on or about May 1, 1922, he ceased to be general manager, though remaining president, and was thereupon informed that "any further work on the yacht would have to be paid for by him," and that he did pay from that time.

to identify its total with the reasonable value, except to the extent that such identity may be gathered from the statement that it is the amount actually paid. The statement that it was paid, and paid for the defendant's yacht, goes back, however, for its support to the statement that the items making up to the total are the items of this account, and rejection of the one would carry with it as a consequence the rejection of the other. Failure to keep an account, an omission that would often be suspicious or unnatural, takes on another aspect when we recall that in the defendant's thought and expectation the service was to be gratuitous. What he says in his affidavit as to the consent and acquiescence of the stockholders and officers may be too general and vague, unless supplemented by other proof, to rebut the implication of a promise that payment would be made for value, none the less, as an explanation of benefits conferred upon request. It has a his conduct and a revelation of his state of mind. Thus viewed, the absence of a record is seen to be the product of a belief, whether legitimate or illegitimate, that the transaction was a gift. We cannot say on such a showing that authenticity and accuracy have been so conclusively established that a trial will be a useless form.

[3-6] The defendant's affidavit discloses a defense also of part payment, in that he paid for the later services after he was no longer general manager. His answer in that regard is, it is true, defective, for payment should have been stated as a defense, partial, if not complete, and is not to be proved under a denial. The facts, however, have now been shown, and the answer, though imperfect, may be amended at the trial or sooner. Technical defects in the pleading of an adversary are not available to a plaintiff upon an application under this rule for the entry of summary judgment. The application is defeated, if the defendant "shall show such facts as may be deemed, by the judge hearing the motion, sufficient to entitle him to defend." Rule 113. The remedy is to be administered in furtherance of justice. Lynde v. Waithman, [1895] 2 Q. B. 180, 184; Jones v. Stone, [1894] A. C. 122, 124; Wallingford v. Directors, etc., of Mutual Society, 5 App. Cas. 685, 704.

[7-9] There remains the second cause of action, based, as we have seen, upon the [2] We find here a controversy that can be statement of an account. The plaintiff ofcomposed only by a trial. The cost or value fers little in aid of this branch of his comof what was done is an issue yet to be deter-plaint. There is an affidavit by the secretary mined. If "no account was kept of material and treasurer that a copy of the bill of items and labor used," the inference must follow was mailed to the defendant on January 22, that the list appended to the moving affidavit 1923, by deposit in a post office box, and

(146 N.E.)

that no objection to any of the items has
been made. The evidence of mailing does
no more than create a presumption that the
letter reached its destination. Against it, we

have the defendant's denial in his answer
At that
that the statement was received.
time, moreover, or within a few days there-
after, the parties were already in litigation,
though in a different forum, with reference
to the demand in suit. In such circumstanc-

es, the defendant's silence, when the bill
reached him through the mails, could. not
reasonably be interpreted by the sender as
an expression of assent. Spellman v. Muehl-
feld, 166 N. Y. 245, 59 N. E. 817. The lines
of battle had been drawn, and the contest
had begun.

The judgment of the Appellate Division should be reversed, and the order of the Special Term affirmed, with costs in the Appellate Division and in this court.

HISCOCK, C. J., and MCLAUGHLIN and LEHMAN, JJ., concur.

POUND, CRANE, and ANDREWS, dissent.

Judgment reversed, etc.

(239 N. Y. 273)

JJ.,

insurance carrier paying it, and taking assignment of cause of action against third person, recover amount assignor's held entitled to

might have recovered and not merely amount

of award, actual amount of which is often indeterminable under sections 16 and 22.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Travelers' Insurance Company against the Brass Goods Manufacturing Company to recover damages for a wrongful death. Judgment at Trial Term for plain. tiff was affirmed by Appellate Division (208 App. Div. 834, 203 N. Y. S. 956), and defendant appeals. Affirmed.

James J. Mahoney and George J. Stacy, both of New York City, for appellant. E. C. Sherwood, of New York City, for respondent.

ANDREWS, J. William J. Fitzgerald, while working for the National Packing Box Company in a hazardous business was killed through an accident arising out of and in the course of his employment but said to have been caused by the negligence of a third parHis widow and ty, the present defendant.

TRAVELERS' INS. CO. v. BRASS GOODS children elected to proceed against his em

MFG. CO.

(Court of Appeals of New York. Jan. 21, 1925.)

1. Master and servant 389-Acceptor of award not entitled to any part of recovery against wrongdoer.

Intention of Workmen's Compensation Law, in securing speedy and adequate provision for support of deceased's family, and as evidence in sections 11 and 29, making election to claim under act final, held contrary to theory of surviving right in acceptor of award under act to excess of recovery by assignee against wrongdoer above amount of award.

ployer under the Workmen's Compensation Law (Consol. Laws, c. 67), and therefore assigned their cause of action against the Brass Goods Manufacturing Company to the Travelers' Insurance Company, the insurance carrier, as provided by section 29 of the statute. To enforce that cause of action this suit was then brought. The serious question before us is the rule of damages to be applied in such cases. In the courts below it has been held that the carrier may recover precisely what might have been recovered by an administrator in an action brought by him for the benefit of the next of kin. The appellant argues that the whole theory of damages is based upon the idea of exact compen

2. Master and servant 389-“Subrogation" within Compensation Law defined. "Subrogation," in Workmen's Compensa-sation to the injured party for the loss sustion Law, § 29, is used as meaning substitution of one person in place of another so that he who is substituted succeeds to the rights of that other in relation to debt or claim and to its rights, remedies, or securities; and not in narrower sense of restoration of amount paid

out only.

[Ed. Note.-For, other definitions, see Words and Phrases, First and Second Series, Subrogation.]

3. Master and servant

389-Carrier subrogated to full rights of assignor accepting award under Compensation Law.

Where deceased's dependents have accepted award under Workmen's Compensation Law,

tained, and it is true that we have said that for a wrong the law's ideal is compensation neither more nor less. Orester v. Dayton Rubber Mfg. Co., 228 N. Y. 134, 126 N. E. 510. Some rule should be adopted, therefore, it is argued, which shall measure the recovery allowed to the carrier by the amount which it has paid or will be compelled to pay under the award made by the Workmen's Compensation Commission. This argument is strengthened, it is further said, by the title of section 29-"Subrogation to remedies of employees." "Subrogation" implies restoration of the amount paid by a surety or simi

That in this sense the title speaks is shown by the substance of the section which refers not to subrogation but to an assignment of the cause of action.

lar person and restoration of that amount or claim and to its rights, remedies, or seonly. curities. Leavitt v. Canadian Pac. Ry. Co., [1, 2] The supposed equity of some theory | 90 Me. 153, 37 A. 886, 38 L. R. A. 152. that might prevent a carrier from profiting by the transaction seems to have impressed courts and judges, yet they have failed to state any practical method consistent with the statute whereby this might be accomplished. [3] Assuming, therefore, that the widow In Casualty Co. of America v. A. L. Swett and children have no rights in the damages Electric Light & Power Co., 174 App. Div. which may be obtained by the carrier, the 825, 162 N. Y. S. 107, it was said that, while remaining question is as to the basis upon the carrier might recover from the person which these damages are to be computed. It causing the death the full damages therefor, has been held in several cases that these still the recovery was impressed with a trust remedies are to be limited by the loss which to in the first place reimburse itself for what- the carrier has sustained because it has or ever it may be compelled to pay under the may be compelled to make payments to the award as made, and then, if there be a sur- dependents. We see no basis for any such plus, to account therefor to the legal repre- rule. Ordinarily the assignee of a cause of sentatives of the deceased. A similar sug- action recovers in the right of his assignor gestion is made in Royal Indemnity Co. v. J. and to the extent that the assignor might G. White Engineering Corporation, 120 Misc. himself recover. How much the assignee Rep. 332, 198 N. Y. S. 264. The statute con- might have paid for the transfer to him, and tains no such provision. Indeed, the inten- whether the damages allowed are more or tion expressed by the Legislature is clearly less than the sum so paid, is entirely immato the contrary. The purpose of the act was terial. The general rule with regard to conto secure to dependents, the speedy, certain, fining damages to compensation applies to and adequate provision for their support. the party originally injured, not to his asThey may and must in case of accidental in- signee. There is no reason that the same juries causing death obtain an award from rule should not apply to the assignment of the employer under the act which shall be a cause of action for personal injuries were exclusive in place of any other liability on the same allowed. In this one case the ashis part except that, if he has neglected to signment of such a cause of action is expresssecure insurance, they may at their option ly authorized. And there is good reason why elect to claim compensation under the act it should be so authorized. Measuring the or maintain an action in the courts for dam- damages here by the loss to the assignee ages. Workmen's Compensation Law, § 11. would be impractical. Damages to the They cannot do both, and such election, when amount paid out by the carrier to the time made, is final. Matter of Pavia v. Petroleum of the commencement of the action or to the Iron Works Co. of Pennsylvania, 178 App. time of the trial only would be manifestly Div. 345, 164 N. Y. S. 790; Matter of Crini- unjust. It would serve to relieve the wrongeri v. Gross, 184 App. Div. 817, 172 N. Y. S. doer of a part of the responsibility for his 695. Likewise, under section 29, the statute acts and at the same time would deprive the requires a similar election which when made carrier who has suffered loss because of such is also final. Miller v. New York Rys. Co., wrongdoing of compensation for all future 171 App. Div. 316, 157 N. Y. S. 200. If they payments which it might be compelled to choose to pursue their remedy against the make. Nor would it be possible to fix with employer, their claim is satisfied by the reasonable certainty by any method of comaward. They retain no interest whatever inputation the total amount of such future paytheir cause of action. They assign it as a ments. No reference to the expectancy of whole. There is no hint of any remaining right, either legal or equitable, surviving against the carrier, unless it be because of the use of the word "subrogation" in the title of the section. Ordinarily one subrogated to the rights of another may retain only sufficient to protect himself from loss. But the expression is also used with a more general meaning. Subrogation is substitution, it has been said, of one person in the place of another so that he who is substituted succeeds to the rights of that other in relation to a debt

one or more lives would be of avail. So far as the widow is concerned, the award is made to her not for life but until she remarries, with other provisions in that contingency. Section 16. As to both the widow and children the amount of the award is not definitely fixed. It may at any time in the future be increased or decreased. Section 22. So as to what amount will be ultimately required we can but guess. It may be more or it may be less than the award of damages which the carrier may receive. Very possibly the

(146 N.E.)

amount of such damages as nearly measures the amount of the carrier's loss as any other sum which could be named to-day.

(239 N. Y. 279)

Petition of STATE COMMISSION OF HIGHWAYS.

Because of the seeming conflict in the In re GRADE CROSSINGS IN TOWN OF courts below on the question here involved, RIPLEY. (Case No. 471.) we have perhaps said more than was necessary, for in two recent cases the rule to (Court of Appeals of New York.

In

be adopted was at least foreshadowed. Travelers' Ins. Co. v. Louis Padula Co., 224 N. Y. 397, 405, 121 N. E. 348, 350, we said:

"In case the dependents elect to assign the cause of action the assignment creates its ordinary and established effects. It transfers to and vests in the assignee the cause of action. If the assignment is to the state, the cause of action is thereby made the property of the state; if to another, the cause of action becomes by virtue of the assignment the property of that other. In the case at bar the dependents assigned the cause of action to the plaintiff. A cause of action inherently includes and comprehends, in the absence of restrictive language, the right to maintain an action upon the claim or matter which also is inherently in cluded in it."

So in Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367, 372, 143 N. E. 222, 223, we again said:

*

"We think the cause of action against third parties for the benefit of next of kin is unchanged by the Compensation Act except to the extent that the act substitutes the carrier, upon the execution of appropriate assignments, to the distributive shares of next of kin who claim as dependents also. The statute thus construed will work out in practice the following results: If dependents, electing to assign, are the only next of kin, the entire beneficial interest in the cause of action against the wrongdoer will pass by their assignment to the carrier, who may sue or compromise at will."

Various other questions are argued by the appellant, but none of them do we consider of importance. There was evidence to sustain a finding that the defendant was guilty of negligence, and that the deceased was free from contributory negligence. As to the various rulings of the trial court which are claimed to be erroneous, none of them are of sufficient importance to justify a reversal under the facts of this case.

The judgment of the Appellate Division must be affirmed, with costs.

HISCOCK, C. J., and POUND, CRANE, and LEHMAN, JJ., concur. CARDOZO and MCLAUGHLIN, JJ., absent.

Judgment affirmed.

I. Railroads

1925.)

Jan. 21,

99 (2)-Railroads may be required to abolish grade crossings but not at own expense.

Railroads may be required to abolish grade crossings and build suitable viaducts, but, in view of Railroad Law, § 94, subd. 4, cannot be compelled to do so at their own expense. 2. Railroads 99 (2)-Public Service Commission has no power to appropriate land of railroad for overhead crossing under statute.

In proceedings under Railroad Law, § 91, to change grade crossing to overhead crossing, Public Service Commission held to have no power to appropriate railroad's land for an approach, where not necessary as engineering proposition, in view of section 94, subd. 4, providing expense of change shall be shared equally by state and railroad.

3. Railroads 99(2)—Public Service Commission had power to order crossing over entire right of way.

In proceedings under Railroad Law, § 91, to change grade crossing to overhead crossing, Public Service Commission held to have power to extend crossing over entire right of way, and not over tracks only.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Petition of the State Commission of Highways, under section 91, Railroad Law, for an order determining that the crossings at grade of Pennsylvania State Line-Westfield, Part 1, Highway No. 8031, and the New York Central Railroad (main line), the New York, Chicago & St. Louis Railroad, and the railroad of the Buffalo & Lake Erie Traction Company (street surface), in the Town of Ripley, Chautauqua County, shall be changed. From a judgment of the Appellate Division (208 App. Div. 827, 203 N. Y. S. 954), affirming orders of the Public Service Commission eliminating a grade crossing, an appeal was taken by permission. Reversed and remanded, with directions.

Locke, Babcock, Spratt & Hollister, of Buffalo (Herbert W. Huntington, of Buffalo, of counsel), for appellant.

Carl Sherman, Atty. Gen. (Edward G. Griffin, of Albany, of counsel), for respondent.

CRANE, J. On or about January 12, 1922, the State Commission of Highways present

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