1904, and expiring October 31, 1914, "with the privilege to said tenant of a renewal for another term of ten (10) years, upon the same terms as are contained herein. But should said tenant elect to renew the within lease for said term of ten (10) years, then and in that event it will by a notice in writing notify said landlord, his heirs or assigns, at least ninety days prior to the expiration of the term hereby created, of such intention to renew said lease." The tenant was prohibited from assigning the lease. The judgments thus far have held the defendant liable, as a matter of law, for the rent for the additional or renewal period of ten years. Prior to January, 1911, the defendant had removed its establishment and plant to premises of its own and desired to be free of the obligations of the lease. Prior to March 29, 1911, negotiations having that end in view were had between the defendant, the plaintiffs and their attorney, and the Irving Place Leasing Company as a potential tenant in the stead of the defendant. Propositions were discussed, a statement of which is not essential to the clarity of our decision or the reasons for it. During the negotiations, and on March 29, 1911, the defendant notified in writing the plaintiffs as follows: "Under the terms of our lease of the Sixteenth street building, we have the right to renew for a period of ten years on the same terms. We hereby notify you that it is our intention to take advantage of our rights and renew for a period of ten years, beginning November 1, 1914, terminating October 31, 1924, with the understanding that this notice is to be withdrawn if the court consents to accept the transfer of the lease now in course of negotiation to the Irving Place Leasing Company, in which event the estate of John C. Orr is to consent to the assignment of our lease to the Irving Place Leasing Company as per agreements now pending." There was no further action of importance until that of October 28, 1912, consisting of a letter from the defendant to the plaintiffs, which said: "On or about March 29, 1911, we notified you of our intention to renew the lease for the property at 133 East Sixteenth street for a period of ten years, taking advantage of the option given us in our lease. The second term begins November 1, 1914. The present tenant of the building, the Irving Place Leasing Company, desire to give to a prospective tenant a five-year lease for the fifth floor of the building, and have requested us to give them the lease for the second term, namely, from November 1, 1914, to November 1, 1924. Won't you please send us communication acknowledging receipt of our notice to you of our intent to take advantage of this option? * * The majority of my Brethren sitting in the case have concluded that the notification of March 29th was, within the provision of the lease, the notification by the defendant to the plaintiffs of its intention to renew the lease for the additional ten years, and not, as the appellant asserts, an independent pro- | posal to renew it on new terms, which would have effect only upon an acceptance of them declared by the plaintiffs. The language of the notification is direct, unequivocal, and conclusive. The acts of or the circumstances surrounding the parties could not make the meaning of it determinable by the jury, and the rulings of the court based upon such holding were not erroneous. It expressed and gave notice of the intention to renew the lease. The intention and its expression were absolute and unconditional. The defendant did not propose a change in or addition to the terms contained in the lease. It reserved or retained the right to withdraw or annul the intention and notification in case the events expressed in the letter occurred, and that was the right which was conditional. The defendant stipulated to withdraw the notification only if the court approved the transfer of the lease and the plaintiffs consented to its assignment. It was the withdrawal of the notification, and not the taking of the new term, which was conditioned upon the approval of the court and the consent of the plaintiffs. The notification contained no offer for the plaintiffs to accept or reject. It proposed no new term or condition to be acted upon by them. It, in effect, said to them, We intend to renew the lease for another term of ten years, upon the same terms as are contained in it; we retain the right to annul our intention in case the speci fied consent of the court and that of yourselves are had; until then and the annulment of our intention and notification they exist precisely as they would had no right of annulment been retained. The conditions permitting their annulment never existed. Therefore the intention and notification remained. [3] We are unanimous in the conclusion that the letter of October 28, 1912, was a repetition of the notification of the intention to renew the lease and an abrogation of the right retained in the notification of March 29th to withdraw it. The clause of the letter, "Won't you please send us communication acknowledging receipt of our notice to you of our intent to take advantage of this option?" did not make the notification equivocal or conditional. It was complete and absolute whether or not the plaintiff acknowledged it. The acknowledgment was not essential to the inception and operation of it. It therein differed from the proposition under consideration in Poel v. BrunswickBalke-Collender Co. of N. Y., 216 N. Y. 310, 110 N. E. 619, cited by the appellant. [4] The exercise by the defendant of the privilege of renewal extended the term of the lease for the additional period of ten years as a present demise for the full term of twenty years, the last half of which was to take effect at the termination of the first, at the option of defendant. A new lease for the additional years was not necessary. This conclusion is not in accord with the view of a considerable and weighty body of judicial opinion, which is that the interest of a lessee exercising the privilege of renewal is purely defendant alone were intended, inasmuch as the lease enumerates no other act, to extend the stipulations of the lease to the occupation through the additional years, and it is immaterial that the demise was to take effect as to the additional years or term in the future at the option of the defendant. [6] Inasmuch as the defendant holds the premises for the full term of 20 years by virtue of the original lease, no question as to the application of the statute of frauds arises. McClelland v. Rush, 150 Pa. 57, 24 Atl. 354. A consideration of the points of the appellant discloses none other meriting discussion. The judgment should be affirmed, with costs. and HISCOCK, C. J., and CHASE, CUDDE- equitable. That view rests upon a distinc-ditions of continuance in occupation, and a tion made between a privilege or covenant new lease would be useless. The acts of the of a renewal and a privilege or covenant of an extension. It holds that the former is a right to the grant of an estate; the latter a present demise operative immediately upon the exercise of the privilege. Sutherland v. Goodnow, 108 Ill. 528, 48 Am. Rep. 560; Leavitt v. Maykel, 203 Mass. 506, 89 N. E. 1056, 133 Am. St. Rep. 323; Quinn v. Valiquette, 80 Vt. 434, 68 Atl. 515, 14 L. R. A. (N. S.) 962; Fergen v. Lyons, 162 Wis. 131, 155 N. W. 935; Luthey v. Joyce, 132 Minn. 451, 157 N. W. 708, L. R. A. 1916E, 1235; Grant v. Collins, 157 Ky. 36, 162 S. W. 539, Ann. Cas. 1915D, 249; Miller v. Albany Lodge, 168 Ky. 755, 182 S. W. 936; Steen v. Scheel, 46 Neb. 252, 64 N. W. 957. | Under that view, the remedy of the plaintiffs would be either an action to enforce specific performance by compelling the defendant to accept a lease for the additional period, or an action on the covenant for damages for its breach. We do not give it approval. Our conclusion does not rest upon any decision of this court. In Swan v. Inderlied, 187 N. Y. 372, 80 N. E. 195, we left undetermined, because not necessarily involved, the question whether a covenant in a lease, strictly for a renewal instead of an extension of the demised term, contemplated a new lease. In no subsequent decision by us has the question been considered. The distinction made by the body of judicial opinion we have referred to is too refined and theoretical to be real, as a matter of law, in practical affairs. Men of ordinary learning, intelligence, and experience do not universally heed or invoke it in their business transactions. The law is neither just nor practical when it founds decisions of controversies exclusively upon that distinction. The word "renewal" or the words "to renew" have not a definite and fixed legal significance to which the parties are bound by the use of them. [5] A lease, like any other contract, is to be enforced in accordance with the expressed intention of the contracting parties. If interpretation of its language is necessary, the proper and established rules are to be applied. The language in question of the lease at bar means that the demise was for ten years absolutely and for ten additional years in case the lessee so elected, and gave the required notice of its election. The lease is a present demise of the premises. The defendant entered into occupation under it. lessor had no choice or decision in the matter of renewal. The letting was for the term of ten years "with the privilege to said tenant of a renewal for another term of ten years upon the same terms as are contained herein." There is no express covenant on the part of the lessor to enter into a new lease or do other act. The only acts called for to effect the renewal are on the part of the defendant. The renewal did not evoke new con The (223 N. Y. 369) LITTLER v. GEORGE A. FULLER CO. (Court of Appeals of New York. May 7, 1918.) 1. MASTER AND SERVANT 375(2)—WORKMEN'S COMPENSATION SCOPE OF EMPLOY MENT. Where employer, on demand of employés for free transportation from railway station to place of building a house, hired a truck to carry them to and from work, an employé injured while in such truck on the way to the station was injured within the scope of the employment under the Workmen's Compensation Law 2. MASTER AND SERVANT (Consol. Laws, c. 67). MEN'S COMPENSATION. 385(1) — WORK Where the evidence showed that a bricklayer averaged about 30 weeks' employment in awarded on the basis of his actual earning caeach year, compensation for injuries should be pacity under Workmen's Compensation Law, § 14, subds. 3, 4, and not on the basis of 300 times his daily pay under subdivision 2. Appeal from Supreme Court, Appellate Division, Third Department. Proceedings under the Workmen's Compensation Law by William Littler to obtain compensation for injuries, opposed by the George A. Fuller Company, employer. There was an award by the State Industrial Commission for the loss of left leg, which was affirmed by the Appellate Division, Third Department, of the Supreme Court (168 N. Y. Supp. 1116), and the employer, by permission, appeals. Reversed, with directions. E. Clyde Sherwood, of New York City, for appellant. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Asst. Atty. Gen., of counsel), for respondent. POUND, J. [1] Littler, the claimant, was a bricklayer. At the time he was hurt he was working for George A. Fuller Company. It was constructing a residence at Great For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Neck, L. I., two miles from the railroad station. The workmen, who came out by train, had refused to remain on the job unless the employer would furnish free transportation to and from the work from and to the railroad station. The employer hired an automobile truck to take the employés, morning and night, to and from their work. At the end of the day's work on May 22, 1917, when the truck was making its trip to the station, it went into the ditch. Littler was thrown off and injured. —, 119 N. E. 1060, the question was as to the average earning capacity of the injured man as a brick molder. It did not appear that brick molders in the locality did not work substantially the whole year. The computation was properly made under section 14, subdivision 2, on the basis of the occupation in which Minniece was engaged at the time of the accident, rather than on the basis of his actual earnings in the year preceding. The order of the Appellate Division should be reversed and the proceeding remitted to the State Industrial Commission to compute the average weekly wage of claimant on the basis of his actual annual earning capacity. HISCOCK, C. J., and COLLIN, CUDDEBACK, CARDOZO, CRANE, and ANDREWS, JJ., concur. Order reversed, etc. (223 N. Y. 365) ERICKSON v. PREUSS et al. (Court of Appeals of New York. May 7, 1918.) 1. MASTER AND SERVANT 347-WORKMEN'S COMPENSATION LAW-AWARDS-LEGISLATIVE DISCRETION. The entire matter of awards under the Workmen's Compensation Law (Consol. Laws, c. 67) is committed to legislative discretion. 2. MASTER AND SERVANT 385(1) — WORKMEN'S COMPENSATION LAW AWARD FOR DISFIGUREMENT. Under Workmen's Compensation Law (Consol. Laws, c. 67) § 15, subd. 3, added by Laws 1916, c. 622, the Industrial Commission may make an award to an injured employé for serious facial or head disfigurement, though it does not impair the earning capacity of the employé, the amount to be such as the commission deems proper and equitable in view of the disfigurement, not exceeding $3,500. The Industrial Commission properly held that the injuries arose out of and in the course of Littler's employment. The vehicle was provided by the employer for the specific purpose of carrying the workmen to and from the place of the employment and in order to secure their services. The place of injury was brought within the scope of the employment because Littler, when he was injured, was "on his way * * from his duty within the precincts of the company." De Voe v. N. Y. State Railways, 218 N. Y. 318, 320, 113 N. E. 256, L. R. A. 1917A, 250. The day's work began when he entered the automobile truck in the morning and ended when he left it in the evening. The rule is well established that in such cases compensation should be awarded. Donovan's Case, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778; Cremins v. Guest, [1898] 1 K. B. 469; Stewart & Son v. Loughwest, [1917] A..C. 249. The case would be different if at the time of the accident claimant had been on the railroad train on his way to or from Great Neck. [2] The average weekly wage of Littler was computed by the commission under subdivision 2 of section 14 of the Workmen's Compensation Law (Cons. Laws, c. 67), with the result that the award is based on annual earnings of 300 times his daily wage. No finding that bricklayers work substantially the whole of the year was made. The evidence is to the effect that they average about 30 weeks of employment at their trade in each year. Three hundred days' work in the year is the standard of steady employment. "The average weekly wages of an employé shall be one fifty-second part of his average annual earnings." Section 14, subd. 4. The award should not exceed two-thirds of the earning capacity. Average annual earnings are computed under subdivisions 1, 2, or 3 of section tion Law by Matilda Erickson, employé, op14, as the case requires. If the nature of the employment does not permit steady work during substantially the whole of the year the annual earning capacity of the injured employé in the employment is the proper basis of compensation. Section 14, subd. 3. The true test is this: What were the average weekly earnings, regard being had to the known and recognized incidents of the employment, including the element of discontinuousness? Anslow v. Cannock Chase Colliery Co., [1909] A. C. 435. 3. MASTER AND SERVANT 385(1) — WorkMEN'S COMPENSATION LAW-AWARDS FOR DISFIGUREMENT AND Loss OF EARNING POWER. Concurrent awards may be made to an inLaw, one for serious facial or head disfigurejured employé under Workmen's Compensation ment, and one for disability or loss of earning power, when it should clearly appear that the award for facial or head disfigurement does not include anything for diminution of earning power. Appeal from Supreme Court, Appellate Division, Third Department. Proceedings under Workmen's Compensa. posed by Max Preuss, employer, and the insurance carrier. Compensation was awarded, the award affirmed by the Appellate Division (169 N. Y. Supp. 1093), and the employer and insurance carrier appeal. Order of Appellate Division affirmed. William H. Foster, of Syracuse, for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Asst. Atty. Gen., of counsel), for respondent. PER CURIAM. On the 16th day of AugIn Minniece v. Terry Bros. Co., 223 N. Y. ust, 1916, the claimant was employed by one For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Max Preuss in a laundry operated by him. [3] Concurrent awards may be made, one for serious facial or head disfigurement, and one for disability or loss of earning power. If so made, then it should clearly appear that the award for facial or head disfigurement does not include anything for diminished earning power. We think that fact does here so appear. The order of the Appellate Division should therefore be affirmed, with costs. HISCOCK, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and MCLAUGHLIN, JJ., concur. Order affirmed. (223 N. Y. 288) WOLCOTT v. RENAULT SELLING (Court of Appeals of New York. April 23, TOMOBILE ACCIDENT - NEGLIGENCE At a hearing had before the commission, on the 20th of September, 1917, an award of $1,000 was made to her for the facial disfigurement, and the impairment of her earning power not being then known or ascertainable, her claim for compensation on that 1. MUNICIPAL CORPORATIONS 706(6)—Aʊground was continued for a further hearing. The employer and the insurance carrier appealed to the Appellate Division from the determination of the commission awarding $1,000 for the facial disfigurement. The Ap pellate Division affirmed the award, and they now appeal to this court. [1, 2] Subdivision 3 of section 15 of the Workmen's Compensation Law (Cons. Laws, c. 67), among other things, provides: "In case of an injury resulting in serious facial or head disfigurement the commission may in its discretion, make such award or compensation as it may deem proper and equitable, in view of the nature of the disfigurement, but not to exceed three thousand five hundred dollars." The provision quoted was added to subdivision 3 of section 15 in 1916. Chapter 622. Prior to this enactment the theory of the Workmen's Compensation Law was not indemnity to a workman for loss of a member but compenor physical impairment as such, sation for disability to work made on the Matter of basis of average weekly wages. Marhoffer v. Marhoffer, 220 N. Y. 543, 116 N. E. 379; Matter of Winfield v. N. Y. C. & H. R. R. R. Co., 216 N. Y. 284, 110 N. E. 614, Ann. Cas. 1916A, 817. The amendment of 1916, however, so far as facial or head disfigurement is concerned, is a departure from or modification to that extent of the prior theory upon which an award was based. The entire matter of awards under the Workmen's Compensation Law is committed to legislative discretion. Matter of Marhoffer v. Marhoffer, supra; Shanahan v. Monarch Engineering Co., 219 N. Y. 469, 114 N. E. 795. The commission may now make an award for serious facial or head disfigurement, even though such disfigurement does not diminish or impair the earning capacity of the claimant. The amount is to be such as the commission deems proper and equitable, in view of the disfigurement, not exceeding $3,500. QUESIn an action for the death of a pedestrian when he attempted to run between two automobiles, one of which was towed by the other, and tripped over the towing rope, whether defendant should have given a warning of some kind that the first car was towing the one behind it held for the jury. 2. MUNICIPAL CORPORATIONS 706(7)—AuTOMOBILE ACCIDENT-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. Whether decedent himself was negligent held for the jury. Appeal from Supreme Court, Appellate Division, First Department. Action by Rose A. Wolcott, as executrix, etc., against the Renault Selling Branch, Incorporated. From a judgment of the Appellate Division (175 App. Div. 858, 162 N. Y. Supp. 496), reversing a judgment of the Trial Term in favor of plaintiff, and dismissing the complaint, plaintiff appeals. Judgment of Appellate Division reversed, and new trial directed. H. H. Snedecker, of New York City, for appellant. Harry A. Talbot, of New York City, for respondent. ANDREWS, J. At noon on May 10, 1915, Charles A. Wolcott attempted to cross FiftyThird street near Eighth avenue in New York City. When he reached the middle of the street an automobile turned from Eighth avenue and came toward him. The chauffeur signaled with his horn. Mr. Wolcott stopped and the car passed him within 2 or 3 It was going slowly at the rate of feet. three or four miles an hour. Behind it 10 or 12 feet distant was a second car, apAs soon as proaching at the same speed. the first car had passed, Mr. Wolcott enThe deavored to run across in this space. second car, however, was attached to the first by a rope which ran about a foot and half above the ground. Mr. Wolcott a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes stumbled over this rope, fell, and was killed. He was warned of the first car, and heeded the warning; but, although he stood close to it and was seen by the chauffeur to be in the act of crossing the street, no timely warning was given that the space between the two cars was obstructed. His attention was attracted to the second car. Under the circumstances he might well fail to notice the tow rope. Standing where he did it would have been hidden from view until he was about to start. There was nothing in the condition or operation of the second car to show him that it was not under its own power. [1, 2] We think that under the circumstances it was for the jury to say whether the defendant should have given a warning of some kind to Mr. Wolcott. We also think that it was for them to determine whether as a matter of fact he himself was negligent. Varnum v. Barrett, 214 N. Y. 609, 108 N. E. 1110. The judgment of the Appellate Division must be reversed; but as errors were committed in the disposal of several requests to charge, a new trial must be directed, with costs to abide the event. HISCOCK, C. J., and COLLIN, CUDDEBACK, CARDOZO, POUND, and CRANE, JJ., concur. Judgment reversed, etc. (223 N. Y. 277) ANDERSON v. ERIE R. CO. (Court of Appeals of New York. April 23, 1918.) AGREEMENTS LIMIT 1. CARRIERS 307(2) ING LIABILITY-VALIDITY. An agreement, in consideration of receiving reduced fare, to exempt a carrier from liability for damages caused by the carrier's negligence, is valid and binding. 2. EVIDENCE 60-PRESUMPTIONS. The presumption is that Public Service Commissions Law (Consol. Laws, c. 48) 88 28, 33, providing for filing of tariffs by carriers and prohibiting transportation until they are filed, have been complied with, and the burden is on one claiming illegality of a contract by reason of failure to file tariffs to show it, because the law presumes that every person, including a railroad corporation, does his duty. Chase, Hogan, and Crane, JJ., dissenting. MCLAUGHLIN, J. Plaintiff's intestate, a clergyman, obtained from defendant, a written order that at any time during the year 1913 its agents would sell to him, for his personal use, a clerical ticket subject to the conditions on the back thereof. On the 10th of November, 1913, he presented this order to and purchased from defendant's agent at Elmira, N. Y., a ticket over defendant's road from that place to Leroy, N. Y., for which he paid $1.20 the regular fare being $2.35. The condition on the back of the ticket was: "In consideration of this ticket being sold at a reduced rate, a person accepting and using it expressly agrees to and does thereby assume all risk of accidents and damage to person and property, whether caused by negligence of the company or that of its agents or employés or otherwise. And as a condition precedent to the issuing and use thereof, each person represents that he or she is legally entitled to use such reduced rate ticket under all laws governing the same, and agrees that he or she will not use this ticket in violation of any law. This ticket is not transferable." The intestate having agreed to the condition, as evidenced by his signature thereto, the ticket was delivered to him, and while en route the car in which he was riding was derailed and he was killed. This action was brought to recover the damages alleged to have been sustained by reason of his death. Plaintiff had a verdict for a substantial sum, upon which judgment was entered. An appeal was taken to the Appellate Division, where the judgment was reversed and a new trial ordered. Plaintiff gave the usual stipulation and appeals to this court. [1] The sole question presented by the appeal is whether the release from liability for negligence given by plaintiff's intestate to defendant, in consideration of the reduced rate at which the ticket was sold to him, prevents a recovery. Had the intestate, at the time of the accident, been traveling on a pass, there could be but one answer to the question. A recovery could not be had. This court settled that question over half a century ago. Wells v. N. Y. C. R. R. Co., 24 N. Y. 181. It was there specifically held that a contract between a railroad corporation and a person traveling on a pass, by which the former was exempted from liability for the negligence of its agents or servants for an injury to the latter, was not against public policy, and was a valid agreement which would be enforced when called in question. Appeal from Supreme Court, Appellate Di-The rule as thus established has since been vision, Third Department. Action by Julia M. Anderson, as administratrix, etc., against the Erie Railroad Company. From a judgment of the Appellate Di vision of the Supreme Court (171 App. Div. 687, 157 N. Y. Supp. 740), reversing a judgment in favor of plaintiff, the plaintiff ap peals. Affirmed. F. W. Clifford, of Owego, for appellant. Halsey Sayles, of Elmira, for respondent. followed in this state. Perkins v. N. Y. C. R. R. Co., 24 N. Y. 196, 82 Am. Dec. 281; 47 Am. Rep. 75; Ulrich v. N. Y. C. & H. R. v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 562, R. R. Co., 108 N. Y. 80, 15 N. E. 60, 2 Am. St. Rep. 369; Hodge v. Rutland R. R. Co., 112 App. Div. 142, 97 N. Y. Supp. 1107, af For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |