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(146 N. E.) the day and just previous to the accident, | play,” and that injury may result therethey had gone out through the rear door of from. It is within the power of the employer appellant's building into this place to play; to prevent these things, or at least to save that while they were at play one of their himself harmless from the consequences number suggested, banteringly, that they try thereof, by adopting rules according to the to get upon and climb the said fire escape; statute, and then enforcing such rule or that one of the boys, by first getting into a rules. It was upon the ground that such window some three or four feet above the rules had not been adopted, as provided by ground, managed to get onto and to climb statute, or if adopted, that they had not said escape; that appellee got into said win been enforced—that such play had been perdow. and tried to reach the lower end of mitted—that awards of compensation have said escape but found it beyond his reach; been, by the courts, upheld in such cases. he then, as he testified, gave "a leap" and In re Loper, 64 Ind. App. 571, 116 N. E. 324 ; tried to reach it, but, instead of catching Kokomo S. & W. Co. v. Irick (Ind. App.) hold of the permanent part of said escape, 141 N. E. 796. caught hold of the lower part of said "lad [4] In this case we have a fire escape on der" which became detached and he fell to the side of a building other than that in the ground and received the injuries for which appellee was employed, with the lower which he asks compensation ; that this vas end thereof ten feet above the surface of the the first time the boys had ever attempted. ground, and the question therefore arisesto get upon or to climb said fire escape. putting the case in its strongest phase

[3] In considering the question now before against appellant-was the employer in this us we note that section 8 of our Workmen's case reasonably bound to anticipate that the Compensation Act (as amended by Laws messenger boys, which it employed, would 1919, c. 57) provides that:

leave the premises of the employer, become “No compensation shall be allowed for an climb said fire escape, a matter wholly dis

trespassers and attempt to get upon and injury or death due to the employee's willful failure or refusal to obey a reasonable connected with their employment? We hold, written or printed rule of the employer. under the facts of this case, that the em

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ployer was not bound reasonably to antici

pate such conduct on the part of its said The Legislature evidently had in mind, employees, that such play was in no way when this law was enacted, that employers connected with their work, and that, under could and would protect themselves against the undisputed facts in this case, the said certain dangers-hazards of the employnient accident did not arise out of appellee's em-by adopting rules for the government of ployment. their employees in relation to such hazards. The award is therefore reversed and this As reasonable men, the employers should an cause is remanded to the Industrial Board ticipate the reasonable hazards of the em- for further proceedings. ployment and the natural and probable conduct of the employees with reference there REMY, P. J., and THOMPSON and Mcto. The employer knows that men and boys, MAHAN, JJ., concur. when associated together, will, under nat DAUSMAN, C. J.,' and NICHOLS, J., conural impulse, engage in frolic, in "horsecur in result.

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(239 N. Y. 298)

In the Brassell Case an award was made by LARSCY V. T. HOGAN & SONS, Inc. the State Industrial Board under the Work

men's Compensation Act (Consol. Law, c. 67) (Court of Appeals of New York. Jan. 21,

of a sum of money to an injured employee 1925.)

for a temporary disability. The full amount 1. Accord and satisfaction Cw18_Compromise of the award was paid and accepted. As the and settlement Ow5(2)-Part payment under injuries were received on navigable waters, agreement for settlement of personal injury the state Industrial Board was without jurisclaim not accord and satisfaction.

diction to make the award. We held, how. Where employer and employee made agree-ever, that, even though the award were void, ment for settlement of injury claim for sub- yet the acceptance of the amount of the mission as basis of award by commission, as award in full payment and satisfaction of the authorized by. Workmen's Compensation Law, $ 20, as amended by Laws 1919, C. 629, and such employee's claim was a discharge of the delaw was afterwards held to be inapplicable be- fendant's liability in an action at common cause claimant was maritime employee, part law for negligence. The receipt and reten: payment and tender and refusal of balance tion of the full amount of the award as full under such agreement was not accord and sat- and complete payment amounted, we said, isfaction barring action for negligence.

to an accord and satisfaction. 2. Accord and satisfaction om 19–Compromise

The facts in this case are different. The and settlement C5(1)-Agreement for set. accident to the plaintiff in the case at bar tlement of claim not amounting to accord and occurred on November 10, 1919. At that satisfaction invalid.

time there was in force an Act of Congress Agreement for settlement of personal in- of October 6, 1917 (40 Stat. 395, c. 97 (U. S. jury claim is not bar to action for negligence, Comp. St. 1918, U. S. Comp. St. Ann. Supp. unless it amounts to accord and satisfaction. 1919, 88 991(3) 1233]), which saved to mari. 3. Accord and satisfaction om 22(2)-Compro

time employees the rights given to them unmise and settlement Cm2 - Action for negli- der the Workmen's Compensation Laws of gence maintainable without tendering back the various states. Section 20 of the Workpart payment under ineffective agreement. men's Compensation Law of this state (Cons.

Where part payment was made under Laws, c. 67), as amended by chapter 629 of agreement as to compensation for injury under the Laws of 1919, provided that an employer the Workmen's Compensation Law, which was and employee in case of injury might enter afterwards held to be inapplicable, common into an agreement for compensation which, law action for negligence could be maintained after approval by the Commission, would rewithout tendering back the payment made.

sult in an award. A report of such an agree 4. Stipulations am 18(9)-Agreement to deduct ment was to be made to the Commission certain amount from verdict binding.

within 10 days after its making, signed by Where plaintiff, disregarding agreement for both the employer and employee. After nosettlement, under which part payment had tice to the beneficiary, the Commission, if been made, sued on original claim, and court the agreement were strictly in accordance stated with consent of counsel that part pay- with the facts and provisions of the law, was ment would be deducted from verdict, it was to approve the agreement which approval error after return of verdict to refuse to de- would constitute an award. duct it.

[1-3] Larscy, the employee, who was a stepAppeal from Supreme Court, Appellate Di. T. Hogan & Sons, Inc., after his injury en

edore working on a ship, and his employer, vision, First Department.

tered into an agreement upon a blank form Action by William Larscy against T. Ho- stated to be a "joint report of agreement gan & Sons, Inc. Judgment for the plaintiff as to payment of compensation.” It recited: was affirmed by the Appellate Division (208

“We *

* have reached an agreement in App. Div. 835, 203 N. Y. S. 938), and the de- regard to compensation for the injury sustained fendant appeals by permission. Judgment by said employee, and submit this joint report modified and affirmed.

of such claim and agreement. We agree that Platt & Field (Eli J. Blair, of counsel), for the facts herein stated are the basis of a claim

made and to be paid in strict accordance with appellant.

the Compensation Law; and we further agree John C. Robinson and Morris A. Wain- to receive and to pay compensation ger, both of New York City, for respondent. as may be determined from the nature, extent,

duration and result of the injury described CRANE, J. By reason of our recent deci- herein, and as may be awarded by the state sion in Brassel v. Electric Welding Co. of Industrial Commission." America, 239 N. Y. 78, 145 N. E. 745, a word Then follows the statement regarding the may be necessary in explanation of our af- accident, the compensation to be paid, and firmance of the judgment in the present case. the time for payment.

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(146 N.E.) The employer paid to the plaintiff the sum 453; Williston on Contracts, ģ1843.

To of $300, and apparently was willing to pay maintain this action it was unnecessary to the balance, about $420, but the employee re- tender back the payment made. Crouch y. fused to receive it, in view of the decision on Quigley, 258 Mo. 651, 167 S. W. 978. May 17, 1920, of the United States Supreme [4] The judgment, however, must be modiCourt in Knickerbocker Ice Co. v. Stewart, fied. Even though there was not complete 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 satisfaction, the plaintiff in repudiating his A. L. R. 1145, holding that the Workmen's unexecuted agreement could not keep what Compensation Law was without jurisdiction had been paid him and at the same time rein a case like this. The plaintiff thereupon cover full compensation. What the remedy brought this action to recover his damages of the defendant in such a case would be for negligence.

we need not here discuss. Either by direct The defendant set up in its answer this action, if not by counterclaim, it surely could agreement of March 12, 1920, made under the recover the partial payment which had been Workmen's Compensation Law, and alleged made under an agreement in the nature of that plaintiff agreed to take in full settlement an accord and satisfaction. The procedure, and full satisfaction of his alleged claim however, in this case was stated by the court against the defendant any amount provided and acquiesced in by the parties. Counsel under the Workmen's Compensation Law, conceded that his client had received $300 and that, relying upon said agreement by which should be deducted from any amount plaintiff, it had paid $270, leaving a balance recovered. The judge thereupon stated with of $420, which the plaintiff had refused to the consent of defendant's counsel that when take.

the jury had arrived at their verdict there We therefore have in this case an agree- would be deducted the amount of $300. ment which may or may not have resulted When the jury returned their verdict, it was in an award and under it part payment by for the somewhat unusual figure of $5,300. the employer. Payment, and not the agree- The jury no doubt had heard what the judge. ment, was to be the full and complete satis- said about the deduction of $300. It is evi. faction. Payment has not been made. The dent that by the verdict they intended $5,000 Workmen's Compensation Law has no appli- as the amount to be allowed for pain, suffercation to the case. The agreement, as part ing, and loss of earnings after the deduction. of the procedure under that law, was void, Upon the rendition of the verdict the defendunless vitality can be preserved to it under ant's counsel moved the court to deduct the common-law rules governing contracts. The $300 in accordance with the ruling which had defendant's counsel recognized this when of- been made during the course of the trial. fering the agreement in evidence, having stat- This the court refused to do, and an exceped at the time:

tion was duly taken. The law of this case “Even though it was not made under the law with the consent of the parties. The amount

was made by the judge at the request of or applicable here, I contend it is good as a com- of $300 was to be deducted from the verdict mon-law agreement. Both sides agreed upon a figure, plaintiff and defendant, and we made of the jury. The case proceeded upon this payments thereunder."

theory to a verdict. The $300 should have

been deducted. What the trial court should As an agreement for a settlement at com- have done, we will do by modifying the judgmon law, the claim of the plaintiff would ment recovered below to this extent, and, as not be discharged or released until full and modified, affirming it, with costs to the apcomplete payment and execution. The agree- pellant. ment may have amounted to an accord, but payment only would amount to a satisfaction. Until there were an accord and satis

HISCOCK, O. J., and CARDOZO, POUND, faction of plaintiff's claim by full and com- MCLAUGHLIN, ANDREWS, and LEHMAN,

JJ., concur.
plete payment, the plaintiff was not barred
from maintaining his action for negligence.
Reilly v. Barrett, 220 N. Y. 170, 115 N. E. Judgment accordingly.

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(239 N. Y. 303)

Action by Frederick R. Van Vechten VAN VECHTEN V. AMERICAN EAGLE against the American Eagle Fire Insurance FIRE INS. CO.

Company. From a judgment of the Appel(Court of Appeals of New York. Jan. 21,

late Division (206 App. Div. 39, 200 X. Y. 1925.)

S. 514), affirming by divided court a judg.

ment of the Trial Term on a verdict of the 1. Larceny w3(4)-Misuse of automobile by jury for plaintiff, defendant appeals. Judg

garage proprietor not larceny, in absence of ments reversed, and complaint dismissed. statute. Garage proprietor's unauthorized use of

Edward M. Brown, for appellant. automobile left at garage for repairs would

James C. Bronner, for respondent. not constitute larceny, apart from Penal Law, $ 1293a, declaring any one taking automobile CARDOZO, J. Defendant's policy of infrom 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.

tions not now material. 2. Insurance Om425–Meaning of term in con Plaintiff left his automobile at a garage

tract not affected by legislative application and repair shop with instructions to the thereof in defining crime.

proprietor to make specified repairs. The Statute affixing name of old crime to new proprietor took the car on a trip for his own combination of events does not require like extension of meaning of same word or former purposes, and on the homeward journey ran equivalent in thought of parties to theft in- | it against a pole. Plaintiff, returning to the surance policy.

garage and receiving back his damaged car,

makes claim against the insurance com3. Larceny l-"Theft" and "larceny" not pany that it reimburse him for his loss.

always of same meaning nor equivalent of The question is whether there was "theft” each other.

within the meaning of the policy. "Theft," though often synonymous with

[1] By Penal Law (Consol. Laws, C. 40) "larceny" in penal statutes, is looser and more colloquial or popular term, and neither word $ 1293-a (as it stood when this loss was sufhas single meaning at all times and in all con- fered): texts, nor is always full equivalent of other.

"Any chauffeur or other person who without (Ed. Note.-For other definitions, see Words the consent of the owner shall take, use, opand Phrases, First and Second Series, . Lar- crate or remove, or cause to be taken, used, ceny; Theft.]

operated or removed from a garage, stable, or other building or place,

an auto4. Insurance Cm425 — "Larceny" under penal mobile or motor vehicle, and operate or drive statutes different from "theft" under insurance policy even before extension of former for his own profit, use or purpose, steals the

or cause the same to be operated or driven term to include misuse of motor vehicles.

same and is guilty of larceny and shall be pun“Larceny," under Penal Law, § 1290, in- ishable accordingly.” Laws 1910, c. 621. cludes offense of obtaining property by false pretenses, which would not constitute "theft" Apart from this statute, the misuse of under automobile theft insurance policy, and plaintiff's car by the proprietor of the garage hence was something different from theft un- would not constitute a larceny, since there der such contract, even before larceny was ex was lacking the felonious intent to approtended by section 1293a to include misuse of priate another's property permanently and motor vehicles without owner's consent.

wholly. Parr v. Loder, 97 App. Div. 218, 5. Insurance ww 425—"Theft” not limited to 220, 89 N. Y. S. 823; Ledvinka v. Home Ins. what was "larceny" at common law.

Co. of New York, 139 Md. 434, 115 A. 596. “Theft,” under automobile insurance pol- 19 A. L. R. 167; Michigan Commercial Ins. icy, is not limited to what was "larceny" at Co. of Lansing, Mich., v. Wills, 57 Iyd. App. common law.

256, 106 N. E. 723; Phanix Assur. Co., Lim

ited, of London, v. Eppstein, 73 Fla. 991, 75 6. Insurance Ow425—"Theft," under automo- So. 5:37, L. R. A. 1917F, 540; Valley Mer

bile policy, not equivalent to "larceny” by un cantile 'Co. v. St. Paul Fire & Marine Ins. authorized use of motor vehicle.

Co., 49 Mont. 430, 143 P. 559, L. R. A. 1915B. “Theft," under automobile insurance policy, is theft as commonly thought and spoken of, 327, Ann. Cas. 1916A, 1126; State v. South, and not same as “larceny," under Penal Law, 28 N. J. Law, 28, 75 Am. Dec. 250; Regina $ 1293a, declaring any one taking automobile v. Trebilcock, 7 Cox Cr. Cas. 408; Pollock from garage and using it for his own purpose, & Wright on Possession, p. 225. Indeed, the without owner's consent, guilty of larceny. 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, how. Division, Fourth Department,

ever great the innovation, what is now lar

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(146 N. E.) ceny under the statute is also theft under their effect upon the victim. The crimes the policy. We hold another view.

one to-day in the common speech of [2, 3] The problem before us is not one of men as they are in moral quality. When statutory construction, It is one of the we have recourse to these standards for the meaning of a contract. The Legislature may solution of our problem, the conclusion is affis to new combinations of events the not doubtful. The very heading of the new name of an old crime. The conclusion does statute, “Unauthorized Use of Motor Vehinot follow that the same word, and still less cles,” prefigures an offense that is something another word which once was an equivalent, less than theft as theft has commonly been must suffer a like extension in the thought known. We read on with a deepening imof parties to a contract. The way is thus pression of movement from the ancient moorpointed to the decision of the case before ings. Operation of a car without the conus. “Theft,” though often used as synony sent of the owner will be a crime and larmous with “larceny," the proper term of art ceny if it continues for a month or for a in the penal statutes of New York, is none day, but so also will it be if it continues for the less a looser term, and one more col- an hour or even a few minutes. Innovations loquial or popular. People ex rel. Jourdan such as these may persist and become genv. Donohue, 84 N. Y. 438, 442. Neither has eral. In course of time they may sink into a single meaning at all times and in all common thought and common speech. They contexts, nor is either always and in every have not done so yet.' Theft under this consetting the full equivalent of the other. Cf. tract is theft as common thought and comHolmes, J., in Towne v. Eisner, 245 U. S. mon speech would now image and describe 418, 424, 38 S. Ct. 158, 62 L. Ed, 372, L. R. it. A. 1918D, 254.

One other consideration emphasizes the [4-6] Larceny, in our law of crimes, in- need for uniformity of meaning. The policy cludes the offense of obtaining property by does not limit its protection to casualties false pretenses. Penal Law, § 1290; People suffered while the car is in New York. v. Dumar, 106 N. Y. 502, 13 N. E. 325; Peo- | Theft, robbery, and pilferage in any other ple v. Miller, 169 N. Y. 339, 351, 62 N. F state are equally within its terms. This, 418, 88 Am. St. Rep. 546. If the plaintiff without more, is sufficient to forbid a readhad sold his car on a credit fraudulently ing that would cause the risks to vary with procured, he would be the victim of a lar- the accidents of local laws. Neither inceny, yet manifestly the sale would not be sured nor insurer can have believed that theft under the provisions of this contract. the same act would be theft within the purLarceny under the statute was therefore view of the contract if committed in New something different from theft under the York, and a mere trespass or conversion if contract even before larceny had been ex committed in Massachusetts or New Jertended to include misuse of motor vehicles. sey. They spoke in terms so common, so We have no reason to believe that the stat- responsive to realities, as to have a meanutory definition, if inapplicable before, has ing everywhere. By this they must abide. become applicable now. On the other hand, The judgment of the Appellate Division we do not say that theft is to be limited and that of the Trial Term should be reto what was larceny at common law. We versed, and the complaint dismissed, with assume that larceny by a bailee or a fiduci- costs in all courts. ary would be theft within the policy, though at common law it would be classified under the heading of embezzlement. Pollock &

HISCOCK, C. J., and POUND, MCLAUGII. Wright on Possession, pp. 134, 135, 157, 191. LIN, CRANE, ANDREWS, and LEHMAN, The distinction, now largely obsolete, did JJ., concur. not ever correspond to any essential difference in the character of the acts or in Judgments reversed, etc

146 N.E.-28

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