Motive and intent are not in law synonymous. | of contributory negligence as a matter of law As was said by Judge Werner in People v. in relying on the judgment of his superior, who Molineux, 168 N. Y. 264, 297, 61 N. E. 286, had been engaged in the business for 16 years. 296 (62 L. R. A. 193): See People ex rel. Hegeman v. Corrigan, 195 N. Y. 1, 12, 87 N. E. 792; Baker v. State, 120 Wis. 135, 97 N. W. 566. Good faith or bad faith or intent when con stituent and essential in a cause of action or defense is a fact and may be alleged and proved as such. Kain v. Larkin, 141 N. Y. 144, 36 N. E. 9; Clift v. White, 12 N. Y. 519, 538; Fisk v. Inhabitants of Chester, 74 Mass. (8 Gray) 506. The orders should be reversed, with costs in all courts, and motion denied, with costs, and the questions certified answered in the affirmative. HISCOCK, C. J., and CHASE, CUDDEBACK, HOGAN, MCLAUGHLIN, and CRANE, JJ., concur. Orders reversed, etc. (226 N. Y. 165) Appeal from Supreme Court, Appellate Division, Second Department. Action by Cesidio Pellegrino against the Clarence L. Smith Company under the Labor Law. From an order of the Appellate Division reversing a judgment for plaintiff and granting a new trial (176 App. Div. 930, 162 N. Y. Supp. 1135), plaintiff appeals. Order of Appellate Division reversed, and judgment of Trial Term affirmed. Supp. 1138; 173 App. Div. 900, 157 N. Y. Charles Oishei, of Buffalo, for appellant. Arthur K. Wing, of New York City, for respondent. CARDOZO, J. This is an action under the Labor Law (Consol. Laws, c. 31) by workman against employer. On September 22, 1913, the plaintiff was engaged in excavating for the foundations of a building. His hand was crushed by a stone which fell out of the wall as he worked. He had noticed cracks about the stone, and had called them to the attention of his foreman. They were 22 or 3 inches wide. The foreman told him that there was no danger, and to go on with the work. Simple tests would have shown the insecurity of the stone. The foreman made none. A half PELLEGRINO v. CLARENCE L. SMITH CO. hour after the assurance of safety the stone (Court of Appeals of New York. April 8, 1919.) INJU 1. MASTER AND SERVANT 190(14) MAN'S ERROR OF JUDGMENT. Where an employe engaged in excavating was injured by a falling stone, the foreman's act in assuring him there was no danger, without making any tests to ascertain its security, was evidence of negligence, although such act showed an error of judgment on the foreman's part. 2. MASTER AND SERVANT 190(16)-INJURIES TO SERVANT - FELLOW SERVANTS MASTER'S DUTY OF INSPECTION. fell. [1, 2] Those are the facts according to the plaintiff's evidence. Many of them are disputed, but the jury accepted the plaintiff's version. The Appellate Division reversed upon the ground that the foreman's conduct was evidence, not of negligence, but at the utmost of error of judgment. We do not share that view. Error of judgment there may have been, but error is not inconsistent with fault. The standard of diligence exacted is that of the typical prudent man. The individual must answer for the consequences when he falls below that norm Maguire v. Barrett, 223 N. Y. 49, 54, 55, 119 N. E. 79; Mertz v. Conn. Co., 217 N. Y. 475 477, 112 N. E. 166; Williams v. Hays, 143 N. Y. 442, 454, 38 N. E. 449, 26 L. R. A. 153, 42 Am. St. Rep. 743. A jury might fairly find that this foreman, however honest his error, had failed in his duty of reasonable inspection. Liability has heretofore been adjudged in other cases upon facts substantially the same. Bitolio v. Bradley ConWhere an employé engaged in excavating tracting Co., 222 N. Y. 553, 118 N. E. 1052; was injured by a falling stone which the fore- Campullu v. Bradley Contracting Co., 222 N. man had assured him was safe, he was not guilty | Y. 634, 118 N. E. 1053; O'Rourke v. McMul Where an employé engaged in excavating was injured by a falling stone and it appeared that he notified the foreman that there were cracks about the stone, but the foreman without making any test told him there was no danger, the foreman failed in his duty of reasonable inspection. 3. MASTER AND Servant 289(4)-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes len-Snare & Triest, Inc., 222 N. Y. 719, 119, 4. SALES 111. RESCISSION Rescission of a contract of sale included [3] We cannot say that the plaintiff is rescission of the terms of credit, which were a chargeable as a matter of law with contrib-part thereof. As against a seller's claim, not based upon express contract, the statute of limitations commenced to run from each and every delivery and acceptance of merchandise. 6. LIMITATION OF ACTIONS 155(7) — PAYMENT BY ASSIGNEE OR BANKRUPTCY TRUSTEE. utory negligence. He tells us that he re- 5. LIMITATION OF ACTIONS 46(9)—STATUTE lied upon the judgment of his superior, who OF LIMITATIONS-SALES. had been engaged in the business for upwards of 16 years. Whether reliance was reasonable was a question for the jury. Rice v. Eureka Paper Co., 174 N. Y. 385, 66 N. E. 979, 62 L. R. A. 611, 95 Am. St. Rep. 585; Daley v. Schaaf, 28 Hun, 314; Seaboard Air Line Railway v. Horton, 239 U. S. 595, 600, 36 Sup. Ct. 180, 60 L. Ed. 458; McCabe & Steen Constr. Co. v. Wilson, 209 U. S. 275, 282, 28 Sup. Ct. 558, 52 L. Ed. 788. The order of the Appellate Division should be reversed, and the judgment of the Trial Term affirmed, with costs in the Appellate Division and in this court. HISCOCK, C. J., and CHASE, HOGAN, POUND, MCLAUGHLIN, and ANDREWS, JJ., concur. Order reversed, etc. (226 N. Y. 61) AMERICAN WOOLEN CO. OF NEW YORK v. SAMUELSOHN et al. Payment of a dividend by the assignee for creditors or the trustee in bankruptcy of the buyers of goods does not take the seller's right of action out of the statute of limitations as being in effect an acknowledgment of the debt by the buyers and a promise to pay it. 7. BANKRUPTCY OR TRUSTEE. 246-POWER OF ASSIGNEE An assignee or trustee in bankruptcy has no power to represent the bankrupts except for the purposes of the Bankruptcy Act. 8. LIMITATION OF ACTIONS 110-BANKRUPTCY PROCEEDINGS AS TOLLING STATUTE. Commencement of bankruptcy proceedings against the buyers of goods under the Bankruptcy Act of 1898 does not stop or toll the running of the statute of limitations against the seller's cause of action for the price. 9. BANKRUPTCY CLAIM-EFFECT AS ADJUDICATION. 303 ALLOWANCE OF Where it does not appear that buyers of goods or either of them in any way examined (Court of Appeals of New York. March 18, claim filed by seller against their bankrupt es 1919.) 1. ELECTION OF REMEDIES 1, 14-CHOICE BETWEEN CLAIMS OF RIGHT. An election of remedies takes place when a choice is exercised between remedies which proceed upon irreconcilable claims of right, and when an election is made between such claims with full knowledge of the facts an action may not be maintained thereafter on the inconsistent claim. tate, allowance of claim by bankruptcy court, though sufficient as a judgment for purposes of bankruptcy proceeding, was not an adjudication binding buyers and rendering them liable to seller. Appeal from Supreme Court, Appellate Division, Fourth Department. Action by the American Woolen Company of New York against Abraham J. 2. ELECTION OF REMEDIES 3(3)- ACTION Samuelsohn, otherwise known as Abram J. FOR FRAUD-ACTION ON CONTRACT. An action to rescind a contract of sale on the ground of fraud and to recover goods alleged to have been sold in reliance upon fraudulent representations is inconsistent with an action on the contract of sale, and after disaffirming a contract of sale, and bringing a suit in replevin for the goods sold, the seller has no remedy on the contract of sale. Samuelsohn, and Henry Samuelsohn, impleaded with others. From a unanimous judgment of the Appellate Division (176 App. Div. 946, 162 N. Y. Supp. 1110) on an order of that court overruling defendants' exceptions ordered to be heard in the Appellate Division in the first instance, denying their motion for new trial, and directing judgment for plaintiff for the amount of the verdict di 3. SALES 111-RESCISSION-RECOVERY FOR rected at the Trial Term, defendants appeal. GOODS ACTUALLY USED. Where a seller by its formal and unequivocal statement elected to rescind each sale made within a certain period, and to reclaim the goods, it elected to rescind the contract of sale, and cannot subsequently sue thereon for the price, though the rescission does not prevent it from recovering as on an implied promise to pay the value of goods delivered and used. Judgment reversed, and complaint dismissed. This action was commenced March 29, 1915. The summons was served upon the defendants Abram J. Samuelsohn and Henry Samuelsohn, but not upon the other defend ants. The complaint alleges: "That between the 23d day of January, 1908, and the 20th day of February, 1909, the plaintiff For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sold and delivered to the defendants certain ["subject to reduction for any goods that goods, wares, and merchandise * * of the may be reclaimed, returned, or stopped in agreed price and reasonable value of $15,921.80, transitu, details of which are not known to and that the defendants agreed to pay said sum this creditor at this time." The amount was, therefor." by stipulation, reduced by the sum of $773.75, and the value of the goods reclaimed, viz $1,412.47, was credited thereon. The claim was thereupon duly allowed by the trustee in bankruptcy at $15,921.80. On March 31, 1911, dividends were paid on the claim in the bankruptcy proceeding amounting to $6,607.55. It further alleges a payment on account of $6,607.55. The defendants for a defense allege that the plaintiff with full knowledge of all the facts relating to the sale and delivery of the goods, wares, and merchandise set forth in the complaint, elected to rescind and did rescind said sales. The defendants also allege that the cause of action set forth in the complaint did not accrue, nor did any part thereof accrue, within six years next preceding the commencement of the action. The record shows that purchases of goods and merchandise were made from time to time during the time mentioned in the complaint, and that they were each made on four month's credit. The defendants were adjudged bankrupts February 25, 1909. Thereafter the plaintiff, by a proceeding commenced May 26, 1909, in the United States District Court, reclaimed certain specified goods and merchandise, a part of those so purchased by the defendants of the plaintiff. The value of the goods and merchandise so reclaimed was $1,412.47. Plaintiff in the petition in that proceeding alleged that it is the owner and lawfully entitled to the immediate possession of the goods and merchandise therein specifically described. It further alleged that on or about February 13, 1908, the defendants, "being then desirous of purchasing goods on credit from time to time from the American Woolen Company of New York, did thereupon make a statement in writing of the financial condition of said copartnership for the purpose of inducing the said American Woolen Company of New York to sell to the said bankrupts merchandise upon credit." It further alleged that, in reliance upon said statement, it "did thereafter from time to time sell to said bankrupts cloth upon credit including the cloth sought to be recovered in this proceeding." * * It further alleged that said statement was false, fraudulent, and deceitful in the particulars alleged, and that "upon the discovery of the fraud * which had been practiced upon it, and upon the 3d day of April, 1909, did elect to rescind the said sales made by it by reason of such fraud, and did demand possession of the said chattels" from the trustee in bankruptcy. The petition was denied by the defendants, but a decree was obtained by the plaintiff that the said goods described in the petition were its property, and that "title thereto never passed from the petitioners to the bankrupt, and that the said trustee has no interest therein or title thereto." On the trial of this action both parties moved for judgment. The action was commenced more than six years after the last alleged purchase and delivery of goods and merchandise mentioned in the complaint, but the court found, in substance, that goods and merchandise of the alleged value of $4,501.29 were purchased and received by the defendants of the plaintiff within six years and four months (four months being the alleged credit given on each sale) prior to the commencement of this action, and deducted therefrom all of the amount of $773.75, which by stipulation was deducted from the claim presented in the bankruptcy proceeding, and also all of the $1,412.47, the value of the goods and merchandise reclaimed, and directed judgment against defendants for $2,315.07. From the judgment entered thereon the plaintiff did not appeal. The defendants appealed to the Appellate Division, where the judgment was unanimously affirmed. Isaac Adler, of Rochester, for appellants. Glenn L. Buck, of Rochester, for respondent. CHASE, J. (after stating the facts as above). [1] An election of remedies takes place when a choice is exercised between remedies which proceed upon irreconcilable claims of right. When an election is made between such claims, with full knowledge of all the facts, an action may not thereafter be maintained upon the inconsistent claim. George v. Texas Co., 225 N. Y. 410, 122 N. E. 238; Mills v. Parkhurst, 126 N. Y. 89, 26 N. E. 1041, 13 L. R. A. 472; Droege v. Ahrens & Ott Mfg. Co., 163 N. Y. 466, 57 N. E. 747. [2] An action to rescind a contract of sale on the ground of fraud and to recover goods alleged to have been sold in reliance upon fraudulent representations is inconsistent with an action on the contract of sale. Reed v. McConnell, 133 N. Y. 425, 435, 31 N. E. 22. After disaffirming a contract and bringing a suit in replevin for the goods sold, a party has no remedy on the contract of sale. Wallace v. O'Gorman, and cases cited; s. c., 53 Hun, 638, 6 N. Y. Supp. 890, affirmed on opinion below, 126 N. Y. 638, 27 N. E. 411. On February 21, 1910, the plaintiff made The petition of the plaintiff in the proceedproof in the bankruptcy proceeding of a ing described in the record by which it sought claim against the bankrupt of $18,108.02, to reclaim certain goods delivered to the trustee in bankruptcy expressly asserts that there were fraudulent representations made to induce the sales by the plaintiff to the defendants, and that, commencing on or about the 6th of August, 1908, and continuously to the 6th of February, 1909, the plaintiff, in reliance upon such fraudulent representations, sold to the bankrupts goods and merchandise consisting of cloth, including the particular pieces thereof sought to be reclaimed. It thus appears that the goods reclaimed were not purchased pursuant to an alleged separate and independent fraudulent contract relating only to the goods so sought to be reclaimed, but that such goods and merchandise were included in the sales from time to time during the time mentioned. The goods reclaimed were that part of the goods and merchandise sold during the time mentioned which remained in the hands of the bankrupts unused when the bankruptcy proceeding was commenced. The court, in connection with directing judgment for the plaintiff, expressly found "that the goods which were subject to reclamation proceedings were a portion of the goods covered by the contracts of sale of which the goods mentioned in the complaint were also a part." [3, 4] The plaintiff by its formal and unequivocal statement elected to rescind each and every sale made to the defendants within the time mentioned. The plaintiff succeeded in its claim that title to the goods did not pass to the defendants. It having elected to rescind the contract by which the sales were made, it must abide the consequences. The rescission of the contract of sale does not prevent the plaintiff from recovering as upon an implied promise to pay the value of the goods delivered to the defendants and actually used by them. The plaintiff cannot, however, recover therefor upon the express contract of sale which it has rescinded. The rescission of the contract of sale includes a rescission of the terms of credit which were a part thereof. In the Wallace Case that we have mentioned the court refused, after a replevin action had been commenced to recover possession of a portion of goods remaining unsold of purchases made from time to time in reliance upon a fraudulent representation as to the purchaser's financial responsibility, to enforce an agreement for security, a part of the original contract, even as to the value of goods which the plaintiff was unable to recover in the replevin action. It was held that the agreement to sell and the agreement to give a mortgage to secure the purchase price of the goods sold were part of a single contract or transaction. So in this case the agreement to sell and the agreement to give a credit to the purchasers were part of one contract or transaction. The plaintiff cannot rescind the contract and act thereon and subsequently assert any right or advantage from the provisions of the contract as if in full force and effect. [5] There is no claim in the complaint that the time when the purchase price of the goods or any of them mentioned therein became due was extended by a credit given onthe sales alleged therein. Assuming that the plaintiff on the proof herein could have recovered on its complaint for any sales within six years and four months prior to the commencement of the action, its rescission of the contract of sale made it necessary for it to stand upon a claim for the value of the goods had and received by the defendants from it, and prevents its recovery upon the express contract which it has repudiated. As against a claim not based upon the express contract, the statute of limitations commenced to run from each and every delivery and acceptance of merchandise. More than six years had expired prior to the commencement of this action since each and every delivery by the plaintiff and accep tance by the defendants of merchandise. The plaintiff cannot recover, therefore, unless: (1) The payment of dividends on the plaintiff's claim by the trustee in bankruptcy is in effect an acknowledgement of the debt by the defendants and a promise to pay it. (2) The institution of the bankruptcy proceeding stopped or tolled the running of the statute of limitations. (3) The allowance of the claim by the trustee in bankruptcy at $15,921.80 in 1910 was an adjudication binding upon the defendants as parties in the bankruptcy proceeding. [6] Payment by a trustee in bankruptcy, like a payment by an assignee pursuant to a general assignment, is a duty pointed out by law. Neither his duty nor power includes authority to promise that the bankrupts or assignors will pay the residue of the debt. Such a payment by an assignee under a voluntary assignment for the benefit of creditors on account of a claim against the bankrupts does not take the case out of the statute of limitations. Pickett v. Leonard, 34 N. Y. 175. The same rule applies in the case of a payment by a trustee in bankruptcy. [7] The assignee or trustee in bankruptcy has no power to represent the bankrupts except for the purpose of the Bankruptcy Act. Moller v. Tuska, 87 N. Y. 166, 170. [8] The Bankruptcy Act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 544), unlike that of 1867 (Act March 2, 1867, c. 176, 14 Stat. 517), does not contain a provision restraining a creditor from pursuing his claim against a bankrupt debtor until the question of his discharge has been determined. The commencement of the bankruptcy proceeding does not, therefore, stop or toll the running of the statute of limitations. [9] A bankrupt is not required to examine claims presented in the bankruptcy court except when they are presented to him or unless ordered by the court or a judge thereof for cause shown, and the bankrupt shall be paid his actual expenses from the estate when examined or required to attend at any place other than the city, town or village of his residence. Bankruptcy Law, § 7 (U. S. Comp. St. § 9591). It does not appear in the record before us that the defendants or either of them ever in any way examined the claim filed by the plaintiff against the bankrupt estate of the defendants. Upon such record the allowance of the claim, although sufficient and controlling as a judgment for the purpose of the bankruptcy proceeding (Matter of John Osborn's Sons & Co., Inc., 177 Fed. 184, 100 C. C. A. 392, 29 L. R. A. [N. S.] 887; National Bank of Commonwealth v. Mechanics' National Bank, 94 U. S. 437, 24 L. Ed. 176), does not affect the question before us relating to the statute of limitations. The judgment should be reversed, and the complaint dismissed, with costs in all courts. HISCOCK, C. J., and HOGAN, POUND, MCLAUGHLIN, and ANDREWS, JJ., concur. CARDOZO, J., not voting. Judgment reversed, etc. (226 N. Y. 76) FLAHERTY v. CRAIG, City Comptroller. (Court of Appeals of New York. March 18, 1919.) 1. COUNTIES 137 - COURT ATTENDANTS SALARIES "OFFICER." The justices of the Supreme Court in Kings county could not, under Judiciary Law, § 168, raise salary of a court attendant after it had been fixed by them for the ensuing year in accordance with Greater New York Charter, § 226 (as amended by Laws 1917, c. 258), and sections 230, 1542, 1583; the judges being "officers," within section 1542, charged with duty of incurring obligations, payable out of money raised by taxation in a county within the territorial limits of the city. - [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Officer.] 2. COUNTIES 137 COURT ATTENDANTS SALARIES "COUNTY CHARGE." Judiciary Law, § 168, giving the justices of the Supreme Court the right to appoint an attendant and fix his salary, makes that salary by implication a "county charge" to be raised and paid in accordance with the provisions of the city charter; direct authority for making salaries of appointees county charges being found in sections 351, 352, 354. Appeal from Supreme Court, Appellate Division, First Department. Application by James Flaherty for a writ of mandamus against Charles L. Craig, as Comptroller of the City of New York. From an order of the Appellate Division (184 App. Div. 428, 171 N. Y. Supp. 624), affirming an order of the Special Term, granting a motion for a peremptory writ requiring the Comptroller to audit the pay roll of relator containing an increase in his salary as Supreme Court attendant, the Comptroller appeals. Orders reversed. See, also, 172 N. Y. Supp. 891. The question presented is whether, under section 168 of the Judiciary Law, the justices in Kings county can raise an attendant's salary after it has been fixed by them for the ensuing year according to the methods detailed in the Greater New York charter for the raising and paying of county charges. William P. Burr, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for appellant. Meier Steinbrink and Hunter L. Delatour, both of Brooklyn, for respondent. CRANE, J. [1] Section 168 of the Judiciary Law (Cons. Laws, c. 30) gives to the justices of the Supreme Court for the Sec ond Judicial District, residing in Kings county, the power to appoint, and at pleasure remove, all clerks, attendants, messengers, and court officers in the Supreme Court in said county and the right to fix their compensation except where such compensation is fixed by law. In accordance with the provisions of the New York City charter, the justices on July 13, 1917, submitted to the board of estimate and apportionment an estimate of the amount of expenditure required for 1918, including a statement of the salaries of the clerks, attendants, and other employés of the Supreme Court, Kings County. The relator's salary for the year 1918 was fixed therein at $1,800. On the 13th of December, 1917, the justices residing in Kings county, by resolution, increased the salary of the relator, as court attendant, from $1,800 to $2,000 per annum to take effect on the 1st day of January, 1918. The board of estimate and apportionment on January 15, 1918, by resolution, recommended that a letter be directed to the justices asking them to rearrange their salary schedules so as to keep within the budgetary allowance and not make necessary the issuance of special revenue bonds to meet this and other salary increases. To the letter thus sent, a reply was received which stated in substance that it was impossible to rearrange the salary schedule of the court for the year 1918 so as to keep within the budgetary allowance as now fixed, and the justices therefore renewed their application for additional funds. No action having been taken, this proceeding was commenced on the 9th day of April, 1918, for a mandamus For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |