(182 N.Y.S.) policy does not mean simply sound policy, or good policy, but it means the policy of a state established for the public weal "either by law, by courts, or general consent." Hollis v. Drew Theological Seminary, 95 N. Y. 171; Matter of Lampson, 33 App. Div. 51, 53 N. Y. Supp. 531. In the Girard Will Case, 2 How. 127, 11 L. Ed. 205, Mr. Justice Story said: "Nor are we at liberty to look at general considerations of the supposed public interests and policy of Pennsylvania upon this subject, beyond what its Constitution and laws and judicial decisions make known to us. The ques tion, what is the public policy of a state, and what is contrary to it, if inquired into beyond these limits, will be found to be one of great vagueness and uncertainty, and to involve discussions which scarcely come within the range of judicial duty and functions, and upon which men may and will complexionally differ." Neither under our statutes nor our decided cases can the estate of the wrongdoer, in such a case as the one at bar, be depleted to the detriment of his heirs at law, next of kin, and creditors. It does not seem to me that a declared public policy denying rights to a resident may be abrogated in favor of a nonresident who is seeking to substitute the policy of a foreign state in place of our own. The motion should be denied. Motion denied. CAMPOCCIA v. PANAMA R. CO. et al. (Supreme Court, Special Term, New York County. June 16, 1920.) 1. Admiralty 20-State Workmen's Compensation Law unconstitutional, as a regulation of maritime workers. The Workmen's Compensation Law is unconstitutional, in so far as it regulates and provides for injuries suffered by an employé in maritime work. 2. Admiralty 20-Maritime law governs rights of servant injured in maritime work. A servant injured while engaged in maritime work is entitled to resort to his common-law remedy in the state court, but the maritime law determines his rights. On reargument. Order on former hearing set aside. For former opinion, see 110 Misc. Rep. 116, 181 N. Y. Supp. 14. 一, DAVIS, J. [1] The Supreme Court of the United States, in the case of Knickerbocker Ice Co. v. Lillian E. Stewart, 252 U. S. 40 Sup. Ct. 438, 64 L. Ed. (decided May 17, 1920), reversing the determination of the Court of Appeals in such action (reported 226 N. Y. 302, 123 N. E. 382), has held that in so far as Congress undertook (chapter 97, 40 Stat. 395 [U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 991, subd. 3, and section 1233]), "to permit application of Workmen's Compensation Laws of the several states to injuries within the admiralty and maritime jurisdiction, and * * sought to authorize and sanction action by the states in prescribing * For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes as to all concerned, rights, obligations, liabilities, and remedies designated to provide compensation for injuries suffered and employés in maritime work," it was beyond the power of Congress so to do, and that therefore the Workmen's Compensation Law of the state (Consol. Laws, c. 67) was unconstitutional, in so far as it regulated and provided compensation for injuries suffered by an employé engaged in maritime work. The plaintiff in this case was engaged in a maritime employment at the time his injuries are alleged to have been suffered. [2] This application for a reargument of the motion heretofore made for judgment on the pleadings in favor of John T. Clark & Son, one of the defendants, which motion was determined in favor of such defendant prior to such decision of the Supreme Court of the United States, must therefore be granted, and the order directing judgment in favor of such defendant set aside, and the motion for judgment on the pleadings in favor of such defendant denied, with $10 costs. Plaintiff is entitled to resort to his common-law remedy in the state court. The maritime law, however, determines his rights in such an action to recover for any injuries in the course of his employment as longshoreman. Schuede v. Zenith S. S. Co. (D. C.) 216 Fed. 566, affirmed 244 U. S. 646, 37 Sup. Ct. 652, 61 L. Ed. 1369; Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Matter of Doey v. Howland Co., 224 N. Y. 30, 120 N. E. 53; Knapp v. U. S Transp. Co., 181 App. Div. 432, 170 N. Y. Supp. 384. Settle order on notice. BULOVA v. E. L. BARNETT, Inc. (Supreme Court, Appellate Term, First Department. June 14, 1920.) Parties 40 (7)-Invalidity of assignment and indemnity agreement to original debtor, executed after assignment, did not entitle assignor to intervene in action on assignment; "interest in the subject of action." In action for work, labor, and services rendered by plaintiff's assignor, a corporation, such assignor was not entitled, as having an "interest in the subject" of the action, under Code Civ. Proc. § 452, to be made a party defendant on the ground that the assignment was made by an unauthorized officer when the corporation was insolvent, to the knowledge of the officer and plaintiff, and that after the assignment the corporation was paid the debt by the defendant debtor upon giving the debtor its indemnity agreement, for the indemnity transaction, being subsequent to the assignment, could not be considered in determining the assignor's motion to be made a party. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interest.] Appeal from City Court of New York, Special Term. Action by Adolph Bulova against E. L. Barnett, Incorporated, in which the S. S. Corporation petitioned to be made a party defendant. From an order requiring plaintiff to bring in the petitioner as a party defendant, plaintiff appeals. Order reversed, and motion denied. See, also, 111 Misc. Rep. 150, 181 N. Y. Supp. 247. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexer (182 N.Y.S.) Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Sanford H. Cohen, of New York City (George Cohen, of New York City, of counsel), for appellant. Charles J. Doherty, of New York City, for respondent. BIJUR, J. Plaintiff sues E. L. Barnett, Incorporated, on a cause of action for work, labor, and services alleged to have been rendered to it by the S. S. Corporation, which claim plaintiff alleges had been assigned to it. The petition of the S. S. Corporation, upon which this order was granted, sets out that the assignment was made by an officer who had no authority, and that the corporation at the time was insolvent, to the knowledge of said officer and of the plaintiff; also that after the assignment had been made the S. S. Corporation procured the Barnett, Incorporated, to pay the debt to it (S. S. Corporation) which Barnett, Incorporated, did upon the S. S. Corporation's giving an indemnity agreement to Barnett, Incorporated. Upon this state of facts I see no warrant for the order made herein, which must find its authority, as conceded by both counsel, in section 452 of the Code of Civil Procedure. This is an action at law to recover for work, labor, and services rendered to the original defendant. The S. S. Corporation has no "interest in the subject thereof," in the sense in which those words are used in the section quoted. Chapman v. Forbes, 123 N. Y. 532, 26 N. E. 3; Bauer v. Dewey, 166 N. Y. 402, 60 N. E. 30. To hold otherwise would be to permit every assignor of a claim to be made a party defendant to the suit of his assignee against the original debtor upon the mere statement that the fact or the validity of the assignment was contested. The respondent makes the further contention that, having become an indemnitor to the original defendant, it is entitled to be made a party defendant to protect its interests as indemnitor. While this contention is not sought to be supported by any authority, it suffices, I think, to dispose of it, to point out that the indemnity transaction was subsequent to the acquisition by the plaintiff of the cause of action sued upon, and cannot, therefore, be considered in determining this motion. Order reversed, with $10 costs, and motion denied, with $10 costs. All concur. FISCHMAN v. SANITARY TOILET CO. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1. Bailment 1-Purchaser of towel from employé in station held not entitled to recover for loss of coat handed to such employé. Where plaintiff purchased towel from employé of defendant, who had privilege of selling towels in public toilet room of railroad station, and at the same time handed his overcoat to such employé, though there were hooks fastened on the wall, on which to hang clothing, the defendant was not liable for loss of coat on the plaintiff's return therefor two hours later, on theory that bailment existed; the plaintiff not being defendant's guest. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 2. Master and servant 302 (2)-Employé selling towels at station did not act within employment in taking coat of purchaser of towel. Where plaintiff, in buying towel from employé of defendant, who had privilege of selling towels in public toilet room of railroad station, handed his coat to such employé, and where the only duty of such employé was to clean the place and collect for the towels, defendant was not liable for loss of coat, since the employé, in taking coat, did not act within the scope of his employment. Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by William Fischman against the Sanitary Toilet Company. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. John T. Booth, of New York City, for appellant. PER CURIAM. Plaintiff on January 18, 1919, visited the public toilet room in the Flatbush Avenue station of the Long Island Railroad in the borough of Brooklyn, New York City. Thereafter he washed his hands, giving 10 cents to an attendant for a towel. He alleges that at the same time he handed his overcoat to the attendant, although there were hooks fastened to the wall upon which to hang clothing. Plaintiff testified that he was in a hurry, and after drying his hands rushed for the train. After he got on the train he missed the coat, but continued to the point of destination. He returned about two hours later, and asked the attendant for his coat. The latter replied that he did not have it, and that he had returned the garment to the plaintiff. The court below rendered judgment in favor of the plaintiff for the sum of $123, the value of the coat and its contents, together with costs and disbursements. [1, 2] The judgment must be reversed. The only theory advanced for sustaining the recovery is that the relation and conduct of the parties created a bailment, and that as a result thereof the defendant was responsible for the act of its employé in failing to return the coat upon demand. The plaintiff in support of its contention cites a number of cases, the facts of which are not analogous to the situation presented herein, and all of which proceed upon the theory of a bailment. No bailment, however, can be said to exist in the case at bar. The railroad maintains public toilets as a matter of necessity for the use of the traveling public, and it cannot be held that the plaintiff was in any sense the guest of the defendant who merely had the privilege of selling towels. The attendant therein, whose duty it was to clean the place and to collect for the towels, was not acting in the scope of his employment, so as to bind his master in taking charge of the plaintiff's coat. Judgment accordingly reversed, and complaint dismissed upon the merits, with $30 costs to appellant in this court and costs in the court below. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) ROSEN v. 981 UNION AVE. CORPORATION et al. SAME v. 976 TINTON AVE. CORPORATION et al. (Supreme Court, Appellate Term, First Department. June 16, 1920.) 1. Dismissal and nonsuit 12-Plaintiff may discontinue at any time before final submission. Plaintiff is entitled to discontinue his action at any time and for any reason before final submission to the jury, provided no substantial rights of defendant or a third party have intervened. 2. Dismissal and nonsuit 37-Tender of costs not condition precedent. Plaintiff's motion to discontinue before final submission need not be accompanied by or coupled with an actual tender of costs; such tender not being a condition precedent, although payment of costs may be a condition imposed by the court on granting the motion, with which plaintiff must of course comply, if he desires to avail himself of the permission. Appeal from City Court of New York, Trial Term. Actions by Solomon Rosen against the 981 Union Avenue Corporation and another and against the 976 Tinton Avenue Corporation and another, tried as one pursuant to stipulation. From a judgment for defendants, and from an order denying plaintiff's motion for a new trial, plaintiff appeals. Judgments and orders reversed, and motion for leave to discontinue granted, and actions discontinued. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Lind & Pfeiffer, of New York City (Alexander Pfeiffer, of New York City, of counsel), for appellant. Strasbourger & Schallek, of New York City (Max L. Schallek, of New York City, of counsel), for respondents. WAGNER, J. The correctness or validity of the verdicts as to substance and subject-matter does not arise, the sole question upon this appeal relating to the refusal of the trial court to discontinue the actions, tried as one pursuant to a stipulation of counsel, on motion of the plaintiff made during the trial. After plaintiff's case had been presented, and plaintiff had rested, and the defendants' motion to dismiss the complaint had been denied by the trial justice, the plaintiff asked the court, after a colloquy had taken place, to which it is unnecessary here to refer, to withdraw a juror, which motion was denied. Plaintiff then moved to discontinue the actions, which motion was likewise denied. Under protest the learned trial justice compelled plaintiff's counsel, who had notified the court that he had withdrawn from the case, to continue the trial thereof, and the latter, with the express view of avoiding any imputation of contempt, and upon renewed protest at the court's procedure, did continue, again moving at the end of the entire case to discontinue, which motion similarly was denied. [1] It is well settled that a plaintiff is entitled to discontinue his action at any time before final submission to the jury, provided no substantial rights of the defendant or a third party have intervened. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |