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(239 N. Y. 298)

LARSCY v. T. HOGAN & SONS, Inc. (Court of Appeals of New York. Jan. 21, 1925.)

1. Accord and satisfaction 18-Compromise and settlement 5(2)—Part payment under agreement for settlement of personal injury claim not accord and satisfaction.

Where employer and employee made agreement for settlement of injury claim for submission as basis of award by commission, as authorized by Workmen's Compensation Law, § 20, as amended by Laws 1919, c. 629, and such law was afterwards held to be inapplicable because claimant was maritime employee, part payment and tender and refusal of balance under such agreement was not accord and satisfaction barring action for negligence.

2. Accord and satisfaction 19-Compromise and settlement 5(1)-Agreement for settlement of claim not amounting to accord and satisfaction invalid.

Agreement for settlement of personal injury claim is not bar to action for negligence, unless it amounts to accord and satisfaction. 3. Accord and satisfaction 22(2)—Compromise and settlement 2-Action for negligence maintainable without tendering back part payment under ineffective agreement.

Where part payment was made under agreement as to compensation for injury under the Workmen's Compensation Law, which was afterwards held to be inapplicable, commonlaw action for negligence could be maintained without tendering back the payment made. 4. Stipulations 18(9)-Agreement to deduct certain amount from verdict binding.

Where plaintiff, disregarding agreement for settlement, under which part payment had been made, sued on original claim, and court stated with consent of counsel that part payment would be deducted from verdict, it was error after return of verdict to refuse to deduct it.

In the Brassell Case an award was made by the State Industrial Board under the Workmen's Compensation Act (Consol. Law, c. 67) of a sum of money to an injured employee for a temporary disability. The full amount of the award was paid and accepted. As the injuries were received on navigable waters, the state Industrial Board was without jurisdiction to make the award. We held, however, that, even though the award were void, yet the acceptance of the amount of the award in full payment and satisfaction of the employee's claim was a discharge of the defendant's liability in an action at common law for negligence. The receipt and retention of the full amount of the award as full and complete payment amounted, we said, to an accord and satisfaction.

The facts in this case are different. The accident to the plaintiff in the case at bar At that occurred on November 10, 1919. time there was in force an Act of Congress of October 6, 1917 (40 Stat. 395, c. 97 [U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 991(3) 1233]), which saved to maritime employees the rights given to them under the Workmen's Compensation Laws of Section 20 of the Workthe various states. men's Compensation Law of this state (Cons. Laws, c. 67), as amended by chapter 629 of the Laws of 1919, provided that an employer and employee in case of injury might enter into an agreement for compensation which, after approval by the Commission, would result in an award. A report of such an agreement was to be made to the Commission within 10 days after its making, signed by both the employer and employee. After notice to the beneficiary, the Commission, if the agreement were strictly in accordance with the facts and provisions of the law, was to approve the agreement which approval would constitute an award.

[1-3] Larscy, the employee, who was a stevedore working on a ship, and his employer, Appeal from Supreme Court, Appellate Di. T. Hogan & Sons, Inc., after his injury envision, First Department.

Action by William Larscy against T. Ho gan & Sons, Inc. Judgment for the plaintiff was affirmed by the Appellate Division (208 App. Div. 835, 203 N. Y. S. 938), and the defendant appeals by permission. Judgment modified and affirmed.

Platt & Field (Eli J. Blair, of counsel), for appellant.

John C. Robinson and Morris A. Wainger, both of New York City, for respondent.

CRANE, J. By reason of our recent decision in Brassel v. Electric Welding Co. of America, 239 N. Y. 78, 145 N. E. 745, a word may be necessary in explanation of our affirmance of the judgment in the present case.

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tered into an agreement upon a blank form
stated to be a "joint report of agreement
as to payment of compensation." It recited:
"We *
have reached an agreement in
regard to compensation for the injury sustained
by said employee, and submit this joint report
of such claim and agreement. We agree that
the facts herein stated are the basis of a claim
made and to be paid in strict accordance with
the Compensation Law; and we further agree
to receive and to pay compensation * *
as may be determined from the nature, extent,
duration and result of the injury described
herein, and as may be awarded by the state
Industrial Commission."

Then follows the statement regarding the accident, the compensation to be paid, and the time for payment.

(146 N.E.)

The employer paid to the plaintiff the sum of $300, and apparently was willing to pay the balance, about $420, but the employee refused to receive it, in view of the decision on May 17, 1920, of the United States Supreme Court in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145, holding that the Workmen's Compensation Law was without jurisdiction in a case like this. The plaintiff thereupon brought this action to recover his damages for negligence.

The defendant set up in its answer this agreement of March 12, 1920, made under the Workmen's Compensation Law, and alleged that plaintiff agreed to take in full settlement and full satisfaction of his alleged claim against the defendant any amount provided under the Workmen's Compensation Law, and that, relying upon said agreement by plaintiff, it had paid $270, leaving a balance of $420, which the plaintiff had refused to take.

We therefore have in this case an agreement which may or may not have resulted in an award and under it part payment by the employer. Payment, and not the agreement, was to be the full and complete satisfaction. Payment has not been made. The Workmen's Compensation Law has no application to the case. The agreement, as part of the procedure under that law, was void, unless vitality can be preserved to it under common-law rules governing contracts. The defendant's counsel recognized this when offering the agreement in evidence, having stated at the time:

"Even though it was not made under the law applicable here, I contend it is good as a common-law agreement. Both sides agreed upon a figure, plaintiff and defendant, and we made payments thereunder."

As an agreement for a settlement at common law, the claim of the plaintiff would not be discharged or released until full and complete payment and execution. The agreement may have amounted to an accord, but payment only would amount to a satisfaction. Until there were an accord and satisfaction of plaintiff's claim by full and complete payment, the plaintiff was not barred from maintaining his action for negligence. Reilly v. Barrett, 220 N. Y. 170, 115 N. E.

453;

Williston on Contracts, § 1843. To maintain this action it was unnecessary to tender back the payment made. Crouch v. Quigley, 258 Mo. 651, 167 S. W. 978. [4] The judgment, however, must be modified. Even though there was not complete satisfaction, the plaintiff in repudiating his unexecuted agreement could not keep what had been paid him and at the same time recover full compensation. What the remedy of the defendant in such a case would be we need not here discuss. Either by direct action, if not by counterclaim, it surely could recover the partial payment which had been made under an agreement in the nature of an accord and satisfaction. The procedure, however, in this case was stated by the court and acquiesced in by the parties. Counsel conceded that his client had received $300 which should be deducted from any amount recovered. The judge thereupon stated with the consent of defendant's counsel that when the jury had arrived at their verdict there would be deducted the amount of $300. When the jury returned their verdict, it was for the somewhat unusual figure of $5,300. The jury no doubt had heard what the judge. said about the deduction of $300. It is evident that by the verdict they intended $5,000 as the amount to be allowed for pain, suffering, and loss of earnings after the deduction. Upon the rendition of the verdict the defendant's counsel moved the court to deduct the $300 in accordance with the ruling which had been made during the course of the trial. This the court refused to do, and an excep tion was duly taken. The law of this case with the consent of the parties. The amount was made by the judge at the request of or of $300 was to be deducted from the verdict of the jury. The case proceeded upon this theory to a verdict. The $300 should have been deducted. What the trial court should have done, we will do by modifying the judgment recovered below to this extent, and, as modified, affirming it, with costs to the ap pellant.

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

Judgment accordingly.

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Action by Frederick R. Van Vechten against the American Eagle Fire Insurance Company. From a judgment of the Appellate Division (206 App. Div. 39, 200 N. Y. S. 514), affirming by divided court a judgment of the Trial Term on a verdict of the

jury for plaintiff, defendant appeals. Judgments reversed, and complaint dismissed. Edward M. Brown, for appellant. James C. Bronner, for respondent.

CARDOZO, J.

Defendant's policy of in

Garage proprietor's unauthorized use of automobile left at garage for repairs would not constitute larceny, apart from Penal Law, § 1293a, declaring any one taking automobile from garage and using it for his own purpose, surance covering plaintiff's automobile inwithout owner's consent, guilty of larceny; sures against stated perils, among them felonious intent to appropriate it permanent- "theft, robbery, or pilferage," with exceply and wholly being lacking.

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"Theft," though often synonymous with "larceny" in penal statutes, is looser and more colloquial or popular term, and neither word has single meaning at all times and in all contexts, nor is always full equivalent of other. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Larceny; Theft.]

4. Insurance 425-"Larceny" under penal statutes different from "theft" under insurance policy even before extension of former term to include misuse of motor vehicles.

"Larceny," under Penal Law, § 1290, includes offense of obtaining property by false pretenses, which would not constitute "theft" under automobile theft insurance policy, and hence was something different from theft under such contract, even before larceny was extended by section 1293a to include misuse of

motor vehicles without owner's consent.

5. Insurance 425-"Theft" not limited to what was "larceny" at common law. "Theft," under automobile insurance policy, is not limited to what was "larceny" at

common law.

6. Insurance

425-"Theft," under automobile policy, not equivalent to "larceny" by unauthorized use of motor vehicle.

"Theft," under automobile insurance policy, is theft as commonly thought and spoken of, and not same as "larceny," under Penal Law, § 1293a, declaring any one taking automobile from garage and using it for his own purpose, without owner's consent, guilty of larceny.

tions not now material.

Plaintiff left his automobile at a garage and repair shop with instructions to the proprietor to make specified repairs. The proprietor took the car on a trip for his own it against a pole. Plaintiff, returning to the purposes, and on the homeward journey ran garage and receiving back his damaged car, makes claim against the insurance company that it reimburse him for his loss. The question is whether there was "theft" within the meaning of the policy.

[1] By Penal Law (Consol. Laws, c. 40) § 1293-a (as it stood when this loss was suffered):

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an auto

"Any chauffeur or other person who without the consent of the owner shall take, use, opcrate or remove, or cause to be taken, used, operated or removed from a garage, stable, or other building or place, mobile or motor vehicle, and operate or drive or cause the same to be operated or driven for his own profit, use or purpose, steals the same and is guilty of larceny and shall be punishable accordingly." Laws 1910, c. 621.

Apart from this statute, the misuse of plaintiff's car by the proprietor of the garage would not constitute a larceny, since there was lacking the felonious intent to appropriate another's property permanently and wholly. Parr v. Loder, 97 App. Div. 218, 220, 89 N. Y. S. 823; Ledvinka v. Home Ins. Co. of New York, 139 Md. 434, 115 A. 596. 19 A. L. R. 167; Michigan Commercial Ins. Co. of Lansing, Mich., v. Wills, 57 Ind. App. 256, 106 N. E. 725; Phoenix Assur. Co., Limited, of London, v. Eppstein, 73 Fla. 991, 75 So. 537, L. R. A. 1917F, 540; Valley Mercantile Co. v. St. Paul Fire & Marine Ins.

Co., 49 Mont. 430, 143 P. 559, L. R. A. 1915B, 327, Ann. Cas. 1916A, 1126; State v. South, 28 N. J. Law, 28, 75 Am. Dec. 250; Regina V. Trebilcock, 7 Cox Cr. Cas. 408; Pollock & Wright on Possession, p. 225. Indeed, the very purpose of the statute was to bring within the definition acts outside of it beAppeal from Supreme Court, Appellate fore. The courts below have held that, howDivision, Fourth Department. ever great the innovation, what is now laf

(146 N.E.)

ceny under the statute is also theft under their effect upon the victim. The crimes the policy. We hold another view.

[2, 3] The problem before us is not one of statutory construction. It is one of the meaning of a contract. The Legislature may affix to new combinations of events the name of an old crime. The conclusion does not follow that the same word, and still less another word which once was an equivalent, must suffer a like extension in the thought of parties to a contract. The way is thus pointed to the decision of the case before us. "Theft," though often used as synonymous with "larceny," the proper term of art in the penal statutes of New York, is none the less a looser term, and one more colloquial or popular. People ex rel. Jourdan v. Donohue, 84 N. Y. 438, 442. Neither has a single meaning at all times and in all contexts, nor is either always and in every setting the full equivalent of the other. Cf. Holmes, J., in Towne v. Eisner, 245 U. S. 418, 424, 38 S. Ct. 158, 62 L. Ed. 372, L. R. A. 1918D, 254.

are one to-day in the common speech of men as they are in moral quality. When we have recourse to these standards for the solution of our problem, the conclusion is not doubtful. The very heading of the new statute, "Unauthorized Use of Motor Vehicles," prefigures an offense that is something less than theft as theft has commonly been known. We read on with a deepening impression of movement from the ancient moorings. Operation of a car without the consent of the owner will be a crime and larceny if it continues for a month or for a day, but so also will it be if it continues for an hour or even a few minutes. Innovations such as these may persist and become general. In course of time they may sink into common thought and common speech. They have not done so yet. Theft under this contract is theft as common thought and common speech would now image and describe it.

One other consideration emphasizes the need for uniformity of meaning. The policy does not limit its protection to casualties suffered while the car is in New York. Theft, robbery, and pilferage in any other state are equally within its terms. This, without more, is sufficient to forbid a reading that would cause the risks to vary with the accidents of local laws. Neither insured nor insurer can have believed that the same act would be theft within the purview of the contract if committed in New York, and a mere trespass or conversion if committed in Massachusetts or New Jersey. They spoke in terms so common, so

[4-6] Larceny, in our law of crimes, includes the offense of obtaining property by false pretenses. Penal Law, § 1290; People v. Dumar, 106 N. Y. 502, 13 N. E. 325; People v. Miller, 169 N. Y. 339, 351, 62 N. F. 418, 88 Am. St. Rep. 546. If the plaintiff had sold his car on a credit fraudulently procured, he would be the victim of a larceny, yet manifestly the sale would not be theft under the provisions of this contract. Larceny under the statute was therefore something different from theft under the contract even before larceny had been extended to include misuse of motor vehicles. We have no reason to believe that the stat-responsive to realities, as to have a meanutory definition, if inapplicable before, has become applicable now. On the other hand, we do not say that theft is to be limited to what was larceny at common law. We assume that larceny by a bailee or a fiduciary would be theft within the policy, though at common law it would be classified under the heading of embezzlement. Pollock & Wright on Possession, pp. 134, 135, 157, 191. The distinction, now largely obsolete, did not ever correspond to any essential difference in the character of the acts or in 146 N.E.-28

ing everywhere. By this they must abide.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

HISCOCK, C. J., and POUND, MCLAUGHILIN, CRANE, ANDREWS, and LEHMAN, JJ., concur.

Judgments reversed, etc

434

(239 N. Y. 307)

PEOPLE v. WEINBERGER et al. (Court of Appeals of New York.

1925.)

Jan. 21,

1. Criminal law 400(4) - Compared transcript of alleged immoral drama admissible in prosecution for production thereof. Compared transcript of drama offered by defendant in prosecution for production of immoral drama, held admissible, notwithstanding rule that present recollection of witness must be exhausted to render record of past recollection admissible and though that foundation is not laid.

2. Criminal law 1179 Court of Appeals will not try fact questions on appeal from Appellate Division in criminal case.

On appeal from a judgment of the Appellate Division affirming a conviction for producing an immoral drama, the Court of Appeals may not pass upon whether the production was obscene and immoral, nor may it consider whether evidence presented was sufficient to enable jury to pass on question and supported its conclusion.

3. Criminal law 400 (4)-Record of past recollection admissible without exhausting present recollection.

Record of past recollection of witness is admissible without exhausting his present recollection, where that would be useless formality, and where such record is obviously more reliable.

Joab H. Banton, Dist. Atty. of New York City (James Garrett Wallace, Felix C. Benvenga, and Howard Hilton Spellman, all of New York City, of counsel), for the People.

LEHMAN, J. The defendant Weinberger, as manager, and the other defendants, as actors and performers, have participated in the production of a drama known as "The God of Vengeance." Because of such participation they have been indicted on the charge of "advertising, giving, presenting, and participating in an obscene, indecent, immoral, and impure drama, play, exhibition, entertainment which show, and tends and would tend to the corruption of the morals of youth or others."

At the trial the people presented the testimony of witnesses who saw the play when it was produced during the time set forth in the indictment. These witnesses described from memory the actions and gestures of the actors on the stage and the substance of the words of the play which they heard, and, so far as they remembered, the exact words. The defendants produced no witnesses who contradicted or added to the testimony of the Their counsel merely people's witnesses. cross-examined the people's witnesses, and upon the testimony of the plaintiff's witnesses the jury concluded that the play as produced was obscene, and the defendants

4. Criminal law 450-Opinion evidence held have been convicted of the crime for which they were indicted. properly excluded.

Witnesses' opinions as to morality of drama in question in prosecution for production of immoral drama held properly excluded.

5. Criminal law 338 (1)—Evidence as to alleged immoral performances after indictment competent, where same as those covered by

indictment.

Exclusion of testimony of witnesses as to what they saw and heard at performances subsequent to indictment for production of immoral drama would have been error, where evidence showed that subsequent performances were same as those covered by indictment.

Andrews and Crane, JJ., dissenting.

[1, 2] Upon this appeal we may not pass upon whether the production was obscene and immoral, nor may we consider whether the evidence presented to the jury was sufficient to enable the jury to pass upon the question submitted to it, and supports its conclusion; but one of the exceptions of the defendants to the exclusion of evidence offered by them raises the question of whether they were precluded from presenting to the jury evidence which might have afforded a more certain basis for a conclusion and which might have led to a different result.

After the testimony of the people's witnesses was presented in regard to what they

Appeal from Supreme Court, Appellate Di- had seen and heard when the play was prevision, First Department.

sented, the defendant Weinberger testified that from February 19th, the date named in Harry Weinberger and others were con- the indictment, no change in the play was victed of advertising, presenting, and partic-made "either in the business or the words." ipating in an immoral drama in violation of He then offered in evidence a transcript of Penal Law (Consol. Laws, c. 40), § 1140a. the play. He testified that the transcript The convictions were affirmed by the Appel- was copied by his secretary from the "actor's late Division (209 App. Div. 868, 205 N. Y. S. script," and that he compared it "word for 944), and defendants appeal. Judgments re- word with the play as played from February versed, and a new trial ordered. 19th, and every day thereafter." The transcript was excluded upon an objection for which no ground was stated, but the context

Samuel Seabury and Harry Weinberger, both of New York City, for appellants.

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