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(239 N. Y. 264)

Kiersted v. Orange & A. R. R. Co., 69 N. Y. CROWLEY v. LEWIS et al.

343, 25 Am. Rep. 199; Beardsley v. Duntley,

69 N. Y. 577; Williams v. Gillies, 75 N. Y. (Court of Appeals of New York. Jan. 21,

197; Schaefer v. Henkel, 75 N. Y. 378; Tut1925.)

hill v. Wilson, 90 N. Y. 423; Whitford v. Principal and agent w 145(2)-Contract un. Laidler, 94 N. Y. 145, 46 Am. Rep. 131; Hender seal not specifically enforceable against ricus v. Englert, 137 N. Y. 488, 33 N. E. 550; undisclosed principals.

Elliott v. Brady, 192 N. Y. 221, 85 N. E. 69, Contract under seal may not be specifically 18 L. R. A. (N. S.) 600, 127 Am. St. Rep. 898; enforced against persons not parties to or in- Case v. Case, 203 N. Y. 263, 96 N. E. 440, terested in it on its face, on proof de hors the Ann. Cas. 1913B, 311. We repeat that we do instrument that they are undisclosed principals, not feel at liberty to change a 'rule so well in whose behalf contract was executed by nom- understood and so often enforced. If such a inal party.

change is to be made it must be by' legisla

tive fiat. Appeal from Supreme Court, Appellate Di.

Certainly nothing was said in Harris v. vision, Second Department.

Shorall (230 N. Y. 343, 130 N. E. 572), which Action by E. Chase Crowley against Jos- indicated any such disposition upon our eph H. Lewis, Jr., and others. From an or- part, even had the language there used been der of the Appellate Division (209 App. Div. necessary for the decision. As there pointed 903, 205 N. Y. S. 920), affirming an order of out, the importance of the seal in this state the Special Term, granting defendants' mo- has been much diminished, and we referred tion for judgment on the pleadings, plaintiff to certain cases bearing upon the question as appeals by permission. Order affirmed, and to whether a contract under seal might be certified question answered.

varied or discharged by a parol agreement The following question was certified: and to some conflict upon this point, and we “Does the complaint herein state facts suffi- gave some intimation that we might be cient to constitute a cause of action against the ready to follow the suggestion made by us defendants Frank T. Lewis, Mary A. Lewis, upon this subject in Thomson v. Poor, 147 N. Jane A. Scofield, and Lillian D. Allen?

Y. 402, 42 N. E. 13. We had no thought,

however, that all distinctions between sealed Frederick Behr and E. Chase Crowley, and unsealed instruments were swept aside. both of New York City, for appellant. Such an idea would have been impossible if

C. P. Lattin, of New York City, for re- for nothing else because of the rules conspondents.

tained in our statutes with regard to the

limitations of actions. Equally impossible is ANDREWS, J. The question involved on such an idea with regard to the subject now this appeal is whether a contract under seal before us. Thousands of sealed instruments may be enforced against persons not parties must have been executed in reliance upon to the instrument on the theory that they the authority of Briggs v. Partridge. Many are undisclosed principals in whose behalf times the seal must have been used for the the contract was executed.

express purpose of relieving the undisclosed "We find no authority for the proposition principal from personal liability. It may not that a contract under seal may be turned in- be unwise to preserve the distinction for this to the simple contract of a person not in any especial purpose. But whether wise or unway appearing on its face to be a party to wise the distinction now exists. or interested in it, on proof dehors the in The complaint asks for the specific performstrument, that the nominal party was acting ance of a contract under seal whereby the as the agent of another, and especially in plaintiff agreed to exchange a deed conveying the absence of any proof that the alleged certain premises for a $35,000 mortgage upon principal has received any benefit from it, other lands. The contract is annexed to the or has in any way ratified it, and we do not complaint, and it does not mention the refeel at liberty to extend the doctrine applied spondents by name. It is signed by the to simple contracts executed by an agent for plaintiff and the defendant Joseph H. Lexis, an unnamed principal so as to embrace this and all the covenants therein contained are case.” Briggs v. Partridge, 64 N. Y. 357, 365, the covenants of the parties thereto. The 21 Am. Rep. 617.

respondents are sought to be held simply upNeither do. we find any authority since on the allegation that they were undisclosed 1876 in this court for the proposition. principals of their agent Lewis. This may Briggs V. Partridge has been cited by us not be done. many times, with no hint of disapproval. The order appealed from should be af.

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(146 N.E.) firmed, with costs, and the question certified | 6. Judgment w 181-Remedy by summary to us should be answered in the negative. judgment is to be administered in furtherance

of justice. HISCOCK, C. J., and CARDOZO, POUND,

Remedy by summary judgment under civil MCLAUGHLIN, and LEHMAN, JJ., concur. practice rule 113 is to be administered in furCRANE, J., absent.

therance of justice. Order affirmed.

7. Judgment en 185_Summary judgment held

not warranted, in view of denial that defend

ant received bill of items. (239 N. Y. 267)

Where complaint pleaded cause of action CURRY V. MACKENZIE.

upon an account stated, affidavit in support of (Court of Appeals of New York. Jan, 21, plaintiff's motion for summary judgment under 1925.)

civil practice rule 113, that copy of bill of

items was mailed to defendant on certain date 1. Judgment 181, 185–Rule as to grounds by deposit in post office box, and that no oband affidavits for summary judgment stated. jection to any of the items has been made, held

Court, before rendition of summary judg- not to entitle plaintiff to summary judgment ment for plaintiff under civil practice rule 113, in view of defendant's denial that statement must be convinced that issue is not genuine was received. but feigned, and that there is in truth nothing 8. Evidence 71-Evidence of mailing merely to be tried by affidavits clearly and completely

creates presumption that letter reached des. proving the cause of action by affiants who

tination.
speak with knowledge and by failure on part of
defendant to satisfy court by affidavit or other

Evidence of mailing does no more than proof that there is any basis for his denial, or

create a presumption that letter reached desti

nation. any proof in his defense. 2. Judgment w 185–Summary judgment in 9. Account stated em 6(2)-Debtor did not asaction for labor and material held unwar

sent to items by failure to object, where par. ranted.

ties were already in litigation. Where plaintiff's motion for summary judg

Debtor did not assent to items by failure ment under civil practice rule 113, for labor to object on receipt of bill of items, where pardone and material furnished in construction of ties were in litigation at such time, or within yacht, for defendant was supported by affidavit few days thereafter. of officer of plaintiff's assignor, stating that de- Pound, Crane, and Andrews, JJ., dissenting. fendant was formerly president of assignor, and that while he was president the assignor Appeal from Supreme Court, Appellate built a yacht for him, and where list itemizing Division, Second Department. the labor and material was appended thereto, and where defendant's opposing affidavit stated

Action by Wilfred J. Curry against James that other officers and stockholders of assignor M. Mackenzie. From a judgment entered acquiesced in construction of yacht for de-on an order of the Appellate Division of the fendant that no account was kept of labor and Supreme Court (208 App. Div. 849, 204 N. material used in construction; that on certain | Y. S. 901), reversing an order of the Special date be was informed that further work on Term, and granting plaintiff's motion for yacht would have to be paid for by him; and that he did in fact pay for work done there. summary judgment under civil practice rule after, court was not warranted in giving sum- 113, defendant appeals. Judgment of Appelmary judgment for plaintiff, a controversy for late Division reversed, and order of Special trial being presented.

Term affirmed. 3. Work and labor em 24(2)-Part payment

See, also, 239 N. Y. 509, 147 N. E. 173. cannot be proved under a general denial.

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 Walter B. Hall, of New York City, for re-
under a general denial.

spondent.
4. Judgment am 181-Answer shown imperfect
on plaintiff's motion for summary judgment

CARDOZO, J. [1] Civil practice rule 113 may be amended at trial or sooner.

permits summary judgment at times in favor Answer shown to be imperfect on plaintiff's of a plaintiff, though material averments of motion for summary judgment may be amended his complaint have been traversed by the at trial or sooner.

To that end there must be support5. Judgment am 181-Defects in answer not ing aslidavits proving the cause of action, available to plaintiff on motion for summary and that clearly and completely, by affiants judgment.

who speak with knowledge. There must be Technical defects in answer are not avail

a failure on the part of the defendant to able to plaintiff on motion for summary judg- satisfy the court “by affidavit or other proof" ment under civil practice rule 113.

that there is any basis for his denial or any

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answer.

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 to identify its total with the reasonable val. the award of summary relief, the court must ue, except to the extent that such identity be convinced that the issue is not genuine, may be gathered from the statement that it but feigned, and that there is in truth noth- is the amount actually paid. The statement ing to be tried. General Investment Co. v. that it was paid, and paid for the defendInterborough R. T. Co., 235 N. Y. 133, 139 ant's yacht, goes back, however, for its supN. E. 216.

port to the statement that the items making Plaintiff's complaint is in two causes of up to the total are the items of this account, action, each growing out of the same trans- and rejection of the one would carry with it action, though framed as a separate count. as a consequence the rejection of the other. The first cause of action is for work done Failure to keep an account, an omission that for the defendant and materials supplied to would often be suspicious or unnatural, takes him by plaintiff's assignor, the Jersey City on another aspect when we recall that in Dry Dock Company, between August 9, 1921, the defendant's thought and expectation the and September 13, 1922, in the construction service was to be gratuitous. What he says of a gasoline yacht at his special instance in his affidavit as to the consent and acquies. and request. The reasonable and agreed val- cence of the stockholders and officers may be ue of the labor and materials is stated to be too general and vague, unless supplemented $3,277.88. The second cause of action is up

by other proof, to rebut the implication of a on an account stated, which is said to have promise that payment would be made for

benefits conferred upon request. It has a resulted from the retention by the defendant, without objection or correction, of an ac value, none the less, as an explanation of count current and bill of items. The defend his conduct and a revelation of his state of ant's answer is in substance a general denial. mind. Thus viewed, the absence of a record Upon this motion for summary judgment,

is seen to be the product of a belief, whether the plaintiff has submitted the affidavit of legitimate or illegitimate, that the transac

tion was a gift. We cannot say on such a one Kolb, the secretary and treasurer of

showing that authenticity and accuracy have plaintiff's assignor. In support of the first been so conclusively established that a trial cause of action the affiant states that the de will be a useless form. fendant was formerly the president of the

[3-6] The defendant's affidavit discloses a Jersey City Dry Dock Company, and that defense also of part payment, in that he while he was president the company built a paid for the later services after he was no gasoline yacht for him at its plant in Jersey longer general manager. His answer in that City. Annexed to the affidavit is a list of regard is, it is true, defective, for payment the material used in the construction of this should have been stated as a defense, partial, yacht, and of the labor there employed. The if not complete, and is not to be proved unaffiant states that he has carefully checked | der a denial. The facts, however, have now off the list, which gives no dates, though it been shown, and the answer, though imperdoes give quantities and values, and that fect, may be amended at the trial or sooner. the items there enumerated are the items Technical defects in the pleading of an adactually paid. The defendant states in an versary are not available to a plaintiff upon opposing affidavit that the building of the an application under this rule for the entry yacht "was acquiesced in and consented to by of summary judgment. The application is the other officers and stockholders of the defeated, if the defendant “shall show such Jersey City Dry Dock Company;" that "your facts as may be deemed, by the judge heardeponent was allowed to proceed with the ing the motion, sufficient to entitle him to same"; and that “no account was kept of defend." Rule 113. The remedy is to be adlabor and material used in said construc- ministered in furtherance of justice. Lynde tion." He says that on or about May 1, v. Waithman, (1895) 2 Q. B. 180, 184; Jones 1922, he ceased to be general manager, V. Stone, (1894) A. C. 122, 124; Wallingford though remaining president, and was there- v. Directors, etc., of Mutual Society, 5 App. upon informed that “any further work on Cas. 685, 704. the yacht would have to be paid for by him," [7-9] There remains the second cause of and that he did pay from that time.

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

recover

(146 N.E.) that no objection to any of the items has | insurance carrier paying it, and taking assignbeen made. The evidence of mailing does ment of cause of action against third person, no more than create a presumption that the held entitled to

amount assignor's letter reached its destination. Against it, we might have recovered and not merely amount

of award, actual amount of which is often indehave the defendant's denial in his answer

terminable under sections 16 and 22. that the statement was received. At that time, moreover, or within a few days thereafter, the parties were already in litigation,

Appeal from Supreme Court, Appellate Dithough in a different forum, with reference vision, First Department. to the demand in suit. In such circumstanc

Action by the Travelers' Insurance Comes, the defendant's silence, when the bill

pany against the Brass Goods Manufacturing reached him through the mails, could not Company to recover damages for a wrongful reasonably be interpreted by the sender as death. Judgment at Trial Term for plain. an expression of assent. Spellman v. Muehl- tiff was affirmed by Appellate Division (208 feld, 166 N. Y. 245, 59 N. E. 817. The lines App. Div. 834, 203 N. Y. S. 936), and defendof battle had been drawn, and the contestant appeals. Affirmed. had begun.

The judgment of the Appellate Division James J. Mahoney and George J. Stacy, should be reversed, and the order of the both of New York City, for appellant. Special Term affirmed, with costs in the Ap- E. C. Sherwood, of New York City, for repellate Division and in this court.

spondent. HISCOCK, C. J., and MCLAUGHLIN and

ANDREWS, J. William J. Fitzgerald, LEHMAN, JJ., concur.

while working for the National Packing Box POUND, CRANE, and ANDREWS, JJ.,

Company in a hazardous business was killed dissent.

through an accident arising out of and in the Judgment reversed, etc.

course of his employment but said to have been caused by the negligence of a third par

ty, the present defendant. His widow and (239 N. Y. 273) TRAVELERS' INS. CO. V. BRASS GOODS children elected to proceed against his em

ployer under the Workmen's Compensation MFG. CO.

Law (Consol. Laws, c. 67), and therefore as(Court of Appeals of New York. Jan. 21, signed their cause of action against the Brass 1925.)

Goods Manufacturing Company to the Trav. 1. Master and servant om 389-Acceptor of elers’ Insurance Company, the insurance caraward not entitled to any part of recovery rier, as provided by section 29 of the statute. against wrongdoer.

To enforce that cause of action this suit Intention of Workmen's Compensation was then brought. The serious question beLaw, in securing speedy and adequate provi- fore us is the rule of damages to be applied sion for support of deceased's family, and as

in such cases. In the courts below it has evidence in sections 11 and 29, making election to claim under act fipal, held contrary to theory been held that the carrier may recover preof surviving right in acceptor of award under cisely what might have been recovered by an act to excess of recovery by assignee against administrator in an action brought by him wrongdoer above amount of award.

for the benefit of the next of kin. The ap2. Master and servant 389—“Subrogation" pellant argues that the whole theory of damwithin Compensation Law defined.

ages is based upon the idea of exact compen"Subrogation," in Workmen's Compensa- sation to the injured party for the loss sustion Law, $ 29, is used as meaning substitution tained, and it is true that we have said that of one person in place of another so that he for a wrong the law's ideal is compensation who is substituted succeeds to the rights of neither more nor less. Orester v. Dayton Rubthat other in relation to debt or claim and to

ber Mfg. Co., 228 N. Y. 134, 126 N. E. 510. its rights, remedies, or securities; and not in narrower sense of restoration of amount paid Some rule should be adopted, therefore, it is

argued, which shall measure the recovery {Ed. Note.—For other definitions, see Words allowed to the carrier by the amount which and Phrases, First and Second Series, Subro- it has paid or will be compelled to pay under

the award made by the Workmen's Compen3. Master and servant 389_Carrier subro.

sation Commission.

This argument is gated to full rights of assignor accepting strengthened, it is further said, by the title award under Compensation Law.

of section 29—"Subrogation to remedies of Where deceased's dependents have accept- employees.” “Subrogation” implies restoraed award under Workmen's Compensation Law, I tion of the amount paid by a surety or simi

out only.

gation.)

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 That in this sense the title speaks is shown by the transaction seems to have impressed by the substance of the section which re. courts and judges, yet they have failed to fers not to subrogation but to an assignment state any practical method consistent with the of the cause of action. 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 imma. to 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 wrong. eri 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 in putation the total amount of such future partheir cause of action. They assign it as a ments. No reference to the expectancy of whole. There is no hint of any remaining one or more lives would be of avail. So far right, either legal or equitable, surviving as the widow is concerned, the award is made against the carrier, unless it be because of to her not for life but until she remarries, the use of the word "subrogation” in the ti- with other provisions in that contingency. tle of the section. Ordinarily one subrogated Section 16. As to both the widow and chilto the rights of another may retain only suffi-dren the amount of the award is not definitecient to protect himself from loss. But the ly fixed. It may at any time in the future be expression is also used with a more general increased or decreased. Section 22. So as meaning. Subrogation is substitution, it has to what amount will be ultimately required been said, of one person in the place of an we can but guess. It may be more or it may other so that he who is substituted succeeds be less than the award of damages which to the rights of that other in relation to a debt the carrier may receive. Very possibly the

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