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Chief Justice Waite, in whose opinion a majority of the court concurred, held that the arrangement scheme was not contrary to the policy of our laws, as it was in effect a composition in bankruptcy, which is here allowable. He also held that it was not injurious to our citizens, because it took the place of a foreclosure sale, and unless the scheme went through the bondholders and all others interested would suffer great losses. Therefore it was held that the true spirit of international comity required that it should be enforced in other jurisdictions. Justice Harlan, in a vigorous dissenting opinion, held that the arrangement was contrary to our public policy, did injustice to our citizens, and therefore international comity did not call upon our courts to enforce the same.
It is quite true that some things are said in the prevailing opinion which, if taken literally, might destroy the obligation of every contract made by a Canadian corporation. However, that the court intended to hold that a Canadian corporation could come into this state, ask and receive permission to do business here, and under such permission solicit business and make contracts, and then by act of Parliament become relieved from their contract obligations, which discharge would be binding and enforceable in our state, I cannot persuade myself to believe. Such a proposition would manifestly ignore the fact that the inviolability of contract rights is inherent in our Anglo-Saxon civilization and in a constitutional country governed by the principles of Magna Charta must strike the mind as being inconsistent with the fundamental doctrines of civil liberty.
On the contrary, I think what was said was intended to apply only to the facts then before the court which was that of a Canada contract made by a Canadian corporation, and therefore to be construed and given effect according to the Canadian laws; the only question being whether, in view of the importance of the work in which the corporation was engaged, and the consequences to the public, as well as to the bondholders, of a failure of the scheme proposed, it was contrary to our public policy to permit an enforcement of the same.
Nor do I think the decision in the Simmelink Case, 152 App. Div. 892, 136 N. Y. Supp. 527, which is pressed upon my attention by defendant's counsel, is at all controlling. If that decision was in point, it would be my duty to follow it, though decided by a divided court. This case, however, as I read it, is quite unlike the one now before the court. I have been furnished with the record, and see that there was no finding that it was a New York contract, and it is doubtful if there was sufficient evidence to support such a finding. On the contrary, the record shows an express finding that the certificate of insurance was issued to plaintiff at Toronto, Canada. The Simmelink Case could therefore be well held to be a Canadian contract, and governed by the laws of that Dominion, as was done in the Gebhard Case above cited. Herein that case differs from the Green Case, 206 N. Y. 591, 597, 100 N. E. 411, where there was a finding that the certificate was a New York contract, and therefore the rights of the parties must be determined according to the laws of this state.
My attention is also called to the case of Stockwell v. Supreme Court of the Independent Order of Foresters, 216 Fed. 205, where the District Court of the United States, upon a similar state of facts, seems to have arrived at a different conclusion than that expressed in this opinion. It is sufficient for me to say that, while I entertain great respect for the distinguished jurist who wrote in that case, I think the decision there made involves a more rigid application of the principles of the Gebhard Case than is consistent with that decision and the settled law of this state.
Finally, the defendant's counsel argue that the purpose of the special assessment was to equalize the amounts paid by the pre-99 members with the amounts paid by those who joined after that date, and also, if the assessment is not allowed to stand, the defendant will be unable in the future to meet its obligations and will be obliged to go into liquidation. However desirable it might be from a strictly moral standpoint to have all members contribute equally to the funds of the defendant, the rights of the parties are to be determined in a forum of law, not that of conscience, and, having made a contract, the defendant cannot successfully urge as a reason for not fulfilling the same that it does injustice to other persons with whom defendant has contractual relations. Nor is the fact that defendant may have made an improvident contract any reason for violating its obligations.
So far as any alleged deficiency is concerned, it is quite manifest that it arises from an attempt on the part of defendant to abandon the purely assessment plan on which the defendant started out, depending on extrà assessments to meet emergencies, and to transform itself into an insurance association doing business on the old-line system, whereby a reserve fund is created which, in connection with the regular monthly assessments, is sufficient to meet all the obligations of the company. This is allowable, if it does not interfere with vested rights, but not otherwise. Wright v. Minnesota Mutual Life Ins. Co., 193 U. S. 657, 24. Sup. Ct. 549, 48 L. Ed. 832.
But, treating the actuarial report as an actual deficiency, the evidence shows that before the raise in rates in 1908 said deficiency was $55,000,000, which, under the increased rates of thạt year was reduced in 1912 to less than $24,000,000, or a reduction of nearly 60 per cent. in four years. It also appears that in 1913 there was an accumulated surplus from the whole membership, after paying all death claims and other charges and expenses, of over $300,000. There is no apparent reason given why this increase in the surplus will not continue. The question whether the surplus fund in connection with assessments levied under the rates established in 1908 will not be sufficient to meet the defendant's obligations is at best problematical, depending on the future death rate, the influx of new members, the number of extra assessments levied, and the economy exercised in conducting the affairs of the defendant. At all events, it will be many years before the defendant's present surplus of over $20,000,000 will be exhausted, and it be compelled to discontinue business. It may also be added that the same argument was used in the Wright Case, 196 N. Y. 391, 89 N. E. 1078, 31 L. R. A. (N. S.) 423, 134 Am. St. Rep. 838, and held to be not forceful by the Court of Appeals.
I conclude that the action of defendant in making the special assessment in question and declaring the same a lien on plaintiff's certificate of insurance impaired the obligation of the contract defendant made, and was consequently invalid and void, as being in violation of the vested contract rights of plaintiff. The relief asked seems to be well within the jurisdiction of a court of equity. Langan v. American Legion of Honor, 174 N. Y. 267, 66 N. E. 932. A decree should, therefore, be made in favor of plaintiff, granting him such relief, together with costs.
Findings may be prepared in accordance with this opinion, and, if not assented to by counsel, settled before me on five days' notice. The plaintiff's attorney will serve a copy of this opinion with the proposed findings.
WIEN V. NEW YORK CENT. & H. R. R. CO. (No. 6919.) (Supreme Court, Appellate Division, First Department. March 12, 1915.) 1. CARRIERS Om 177-CONNECTING CARRIERS—LIABILITY OF INITIAL CARRIER
Loss OR DAMAGE-INTERSTATE COMMERCE ACT.
Under the Carmack amendment to the Interstate Commerce Act (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [Comp. St. 1913, $ 8592]), making initial carriers liable for any loss or damage caused by a connecting carrier, the initial carrier is liable, not only for the neg. ligence of its own servants, but for those of connecting carriers, resulting in any loss or damage to the goods en route.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 775–789, 791
803; Dec. Dig. 177.) 2. CARRIERS 177–CONNECTING CARRIERS-LIABILITY OF INITIAL CARRIER
DELIVERY TO CONSIGNEE-INTERSTATE COMMERCE ACT.
Under the Carmack amendment to the Interstate Commerce Act, the initial carrier is liable for any loss or damage resulting from the final carrier's failure to notify the consignee of the arrival of goods at destination, and for its failure, on the consignee's refusal to accept them, to store the goods for the account of the consignor, or to exercise proper care in holding them for him.
[Ed. Note.--For other cases, see Carriers, Cent. Dig. 88 775–789, 791
803; Dec. Dig. Om 177.) 3. CARRIERS Ams9 - DELIVERY OF GOODS - PRESUMPTION – CONSIGNOR AS
Under the Carmack amendment to the Interstate Commerce Act, it is presumed, upon a shipment by bill of lading, without notation thereon or elsewhere with respect to notifying the consignor or any one of the consignee's refusal to accept, that the consignee is the owner.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. $8 324330; Dec.
Dig. 89.) 4. CARRIERS ww89-DELIVERY OF GoodS-LIABILITY.
The common-law liability of the carrier ends when the goods reach their destination, and the consignee has a reasonable time after notice to accept them, and fails to do so or refuses to accept them.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 3242330; Dec.
Dig. Om89.] 5. CARRIERS Eml40-DELIVERY OF Goods-LIABILITY AS WAREHOUSEMAN.
Upon the consignee's failure to accept goods after notice and a reasonable time to remove them, the liability of the carrier as a warehouseman commences.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. $$ 609, 60912, 611616; Dec. Dig. Om 110.)
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
6. CARRIERS 175-DELIVERY OF GOODS-CONSIGNEE'S REFUSAL TO ACCEPT
- NOTICE TO CONSIGNOR.
At common law a carrier is not bound to notify the consignor of the consignee's refusal to accept the goods after notice and reasonable time for removal, at least where the consignee appears presumptively to be the owner, or unless in the circumstances of the rticular case reasonable care requires it; nor does the Interstate Commerce Act expressly require such notice to the consignor, and thereunder the carrier's liability is not beyond that imposed by the common law as construed by the federal and state courts; and even if it was the duty of the final carrier to notify the consignor of the consignee's refusal to accept, the initial carrier would not be liable, where no damage resulted from its failure to do so.
(Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 764, 765; Dec.
Dig. Om 175.) 7. CARRIERS C 89-CONSIGNEE'S REFUSAL TO ACCEPT-DUTY OF CONSIGNOR.
Where the consignee, after notice of arrival, refuses to accept goods, the consignor is bound to demand delivery of the goods to himself and to take charge of them at destination.
(Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 324-330; Dec. Dig. -89.] 8. CARRIERS 177_ACTION FOR NON DELIVERY_LIABILITY—“DAMAGE OR IN
Where a consignor, upon learning that his interstate shipment of goods had not been accepted by the consignee and had not been delivered, directed the initial carrier to have them returned at once, and then himself took the matter up with the final carrier, the initial carrier was not liable for damages from the final carrier's failure to return them under its agreement with the consignor; any “damage or injury" in such case not being within Interstate Commerce Act, $ 20, imposing liability on initial carrier for damage or injury by connecting carrier, nor within section 1 of that act (Comp. St. 1913, § 8563), defining “transportation," as used in section 20, to include services in connection with the receipt, delivery, and transfer in transit.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 775–789, 791803; Dec. Dig. 177.
For other definitions, see Words and Phrases, First and Second Series, Transport.)
Hotchkiss, J., dissenting. Appeal from Appellate Term, First Department. Action by Joseph Wien against the New York Central & Hudson River Railroad Company. Judgment in the Municipal Court for defendant was reversed by the Appellate Term (85 Misc. Rep. 42, 146 N. Y. Supp. 1010), and defendant appeals. Reversed, and judgment of Municipal Court affirmed.
See, also, 163 App. Div. 945, 148 N. Y. Supp. 1150.
Argued before CLARKE, LAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ.
William Mann, of New York City, for appellant.
LAUGHLIN, J. As I view the case, it is unnecessary to decide whether the defendant would have been liable for failing to procure the return of the goods, if plaintiff had left the matter in its hands on its agent's undertaking or promise. The decision of that question would depend upon whether the negotiations constituted a new and valid contract as a carrier for the transportation of the goods back
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
to the point from which they had been shipped, or only a contract for forwarding them (see G. C. & S. Ry. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. 360, 51 L Ed. 540), or merely an agreement to transmit further shipping instructions to the final carrier for compliance with which it would not be liable as a carrier. Howatt v. Bennett, 156 App. Div. 849, 142 N. Y. Supp. 135. The plaintiff, after opening negotiations with the agent of the defendant for the return of the goods, acquiesced in the suggestion of the agent that he take the matter up with the agent in New York of the final carrier, on the ground that by so doing a return of the goods could be had a few days sooner than if the matter were left to the defendant to arrange. The testimony of the plaintiff with respect to his response to that suggestion is as follows:
“I said, 'Very well;' and I went to the Atchison, Topeka & Sante Fé Railway on Broadway, and saw Mr. Mills," and thereupon "opened the negotiations" with him as the agent of the final carrier, and made no report or further application to the defendant.
[1, 2] Under the Carmack amendment, so called, to the Interstate Commerce Act, the defendant would have been liable, not only for the negligent acts and omissions of its own employés, but for those of connecting carriers resulting in any loss or damage to the goods en route, and also for any loss or damage resulting from the failure of the final carrier to notify the consignee of the arrival of the goods at destination, and for its failure, on the consignee's refusing to accept them, to store the goods for the account of the shipper or to exercise proper care in holding them for him. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Kansas City Southern Rd. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516; Atlantic Coast Line
Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7; Becker v. Pa. Rd. Co., 109 App. Div. 230, 96 N. Y. Supp. 1; Earnest v. D., L. & W. R. Co., 149 App. Div. 330, 134 N. Y. Supp. 323; Coovert v. Spokane, P. & S. Ry. Co., 80 Wash. 87, 141 Pac. 324; Norfolk & W. R. Co. v. Stuart Draft Co., 109 Va. 184, 63 S. E. 415.
 The goods were consigned to the People's Store at Coffeyville, Kan. There was no notation on the bill of lading or elsewhere with respect to notifying the shipper or any one else, and presumptively, therefore, the consignee was the owner, which distinguishes the case from Nashville, C. & St. L. Ry. Co. v. Dreyfuss, 150 Ky. 333, 150 S. W. 321, where the goods were consigned to the order of the shipper with directions to notify, at the place of destination, one Howe, who refused to accept them, and the initial carrier was held liable, on account of the failure of the final carrier to give it notice of the rejection of the consignment, for damages caused by fire while the goods remained in possession of the final carrier. The duty of notifying the consignor was predicated upon the ground that the bill of lading showed that it owned the goods.
[4-6] The general rule, well settled in this jurisdiction, is that the common-law liability of the carrier ends when the goods reach their