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(184 N.Y.S.)

for the transportation of sugar, that thereafter plaintiff transported a cargo of sugar for defendants, and by reason thereof became entitled from defendants to the specified freight, sufficiently alleges that the freight earned for the transportation of that cargo was the particular freight assigned to plaintiff.

3. Assignments 12-Order for payment of freight to charterer held not collateral security for owner's obligation.

A letter by a shipowner to a shipper, directing the latter to pay a portion of freight to a charterer of a vessel, is an assignment of that portion of the freight, not a mere security for payment thereof by the shipowner, so that the charterer can recover from the shipper without proving failure by the shipowner to pay the charterer.

Action by A. O. Andersen & Co., Incorporated, against Arthur H. Lamborn and others. On motion by plaintiff for judgment on the pleadings. Motion granted, with leave to defendants to withdraw their demurrer and to answer.

Duncan & Mount, of New York City, for the motion.
Louis O. Van Doren, of New York City, opposed.

GIEGERICH, J. The plaintiff moves for judgment upon the pleadings, consisting of a complaint and a demurrer interposed upon the ground of insufficiency. The complaint contains, among others, the following allegations:

That on or about December 29, 1919, the Susquehanna Steamship Company, Incorporated, a domestic corporation, made and delivered to the plaintiff an order of which the following is a copy:

"Susquehanna Steamship Company, Inc., 52 Broadway. New York, December 29, 1919. Messrs. Lamborn & Co., New York City-The Susquehanna Steamship Company, Incorporated, has to-day entered into a charter party with A. O. Andersen & Co., Incorporated, as agents, on the steamer Lydia, to lift the February sugar under our contract with you. Under this contract you will be obligated to pay us the freight on this sugar in accordance with the terms of our contract, and we wish to provide for the payment of the freight money which will be due from the Susquehanna Steamship Company to A. O. Andersen & Co., Incorporated, as agents, and we therefore request and direct you to pay to A. O. Andersen & Co., Incorporated, as agents, at the rate of $30 per ton on this sugar, in the same manner and at the same time as provided in our contract. The payment made to A. O. Andersen & Co., Incorporated, as agents, will be in reduction of your obligation to pay us under our contract with you. Yours truly, Susquehanna Steamship Co., Inc. [Signed] J. D. Phillips, Vice President and General Manager."

That a contract had been made between the said steamship company and the defendants, who are copartners doing business under the firm name Lamborn & Co., by which the steamship company undertook to provide for the transportation of sugar for Lamborn & Co. from Cuba to Holland, and Lamborn & Co. agreed to pay the steamship company therefor at a rate in excess of $30 per ton on the sugar so transported. That on the said 29th day of December, 1919, a charter party was entered into as stated in the above letter between the plaintiff, as agent for the steamship Lydia, and the said steamship company, whereby the plaintiff chartered the said steamship to the said steamship company for the transportation of a cargo of

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sugar from Cuba to Holland; said cargo being one which the said steamship company was under obligation to transport for the defendant under its said agreement. That the order above set forth was made by the steamship company, and delivered by it to the plaintiff in part consideration of the plaintiff's chartering the steamship Lydia to the said steamship company as aforesaid. That on or about the 9th day of January, 1920, the plaintiff gave notice to the defendants of the said order by delivering the same to the defendants, and that thereafter the said steamship was tendered to the defendants in Cuba for a cargo in accordance with the agreements aforesaid, and there was provided by the defendants and loaded on board the said steamship a cargo consisting of 4,928 tons of sugar, which was thereupon carried by the said steamship to Holland and delivered in accordance with the bill of lading therefor. That by reason of the premises there became due from the defendants to the said steamship company freight on said cargo of sugar at a rate in excess of $30 per ton, and that thereafter the defendants, without the consent of the plaintiff, and in disregard of the said order, paid to the said steamship company the entire freight on said cargo of sugar, and failed and refused to pay to the plaintiff the amount specified in said order, namely, $30 per ton on 4,928 tons, or $147,867.45, for which amount judgment is demanded.

[1] I am of the opinion that under the decisions the order above quoted constituted an assignment pro tanto of the moneys to become due from the defendants to the steamship company. Brill v. Tuttle, 81 N. Y. 454, 37 Am. Rep. 515; Hibbs v. Brown, 190 N. Y. 167, 82 N. E. 1108; Muller v. Kling, 209 N. Y. 239, 103 N. E. 138; Foley v. N. Y. Sav. Bank, 157 App. Div. 868, 142 N. Y. Supp. 822; Hofferberth v. Duckett, 175 App. Div. 480, 162 N. Y. Supp. 167. I cannot accede to the argument made by the learned attorney for the defendants that the letter above quoted constituted a demand on the defendants that they accept a new contractual relation for the carriage of goods with new parties. The allegations of the complaint, construed together, should, I think, be taken to mean that the steamship company's contract with the plaintiff was one it was permitted to make under its contract with the defendants and that the plaintiff's transportation of the cargo referred to was a part of the steamship company's performance of its contract with the defendants or, for aught that appears in the complaint, full performance of such contract, and that everything contained in the letter of December 29th, except the order to pay, is to be treated as merely explanatory.

[2] Neither do I think that the complaint fails to allege that the particular fund described in the order became due from the defendants to the steamship company. There is nothing to show that the steamship company's contract with the defendants called for the transportation of anything but February sugar, and nothing to show that the carriage of the cargo by the plaintiff's vessel was not full performance of such contract. It may be that some of the allegations of the complaint are close to the border line of conclusions, within the meaning of that term in the consideration of pleadings; but, when taken in connection with the allegation that the defendants paid to

(184 N.Y.S.)

the steamship company the entire freight on the cargo in question, I am of the opinion that it should be held that the complaint sufficiently states a cause of action.

[3] It is finally claimed by the defendants that the complaint is insufficient, because it fails to allege that the plaintiff has not received payment of the freight moneys from the steamship company. This contention is based upon the theory that the order in question in terms gives notice to the defendants that the assignment from the steamship company to the plaintiff was by way of collateral security and that therefore the defendants' obligation under it was that of a surety. I cannot assent to this view. The purpose of the order was that the defendants should pay the freight moneys to the plaintiff in the first place, and thus relieve the steamship company of the necessity of making payment of the same itself to the plaintiff. Under the terms of the order the defendants were obliged to pay the moneys in question directly to the plaintiff as soon as they became due. It does not, as claimed by the defendants, provide security for such payment if the steamship company should fail to make it. There is nothing contained in the order which warrants the inference that the obligation of the defendants to pay the freight moneys was conditioned upon the steamship company's failure to pay the same. On the contrary, the order, as I construe it, created a direct and primary obligation on the part of the defendants to pay the freight on the cargo of sugar to the plaintiff (Hirschfield v. Ludwig, 69 Hun, 554, 557, 24 N. Y. Supp. 634; Gallagher v. Nichols, 60 N. Y. 438, 444, 445), and consequently, if the defendants, under the circumstances alleged, voluntarily paid over the money to the steamship company, they did so in their own wrong (Brill v. Tuttle, supra, 81 N. Y. at page 460, 37 Am. Rep. 515).

The motion should therefore be granted, with $10 costs, but with leave to the defendants to withdraw their demurrer and to answer within 20 days after service of a copy of the order to be entered hereon, with notice of entry thereof, and upon payment of such costs. Ordered accordingly.

(193 App. Div. 258)

MILLER v. INTERNATIONAL HARVESTER CO. OF NEW JERSEY. (Supreme Court, Appellate Division, Fourth Department. July 6, 1920.) 1. Pleading 214 (1)-Demurrer admits statements of complaint. In passing on demurrer, the court must accept the statements of the complaint as true.

2. Contracts

186 (1) —Privity necessary to cause of action ex contractu. That a cause of action may arise out of a breach of duty created by a contract, there must be privity of contract between the person bringing the action and defendant.

3. Negligence 2-Duties imposed by law stated.

In cases where the law imposes duties in addition to those created by express contract, liability for negligence rests on the principle that, if a person undertakes to do an act or discharge a duty by which the conduct of another party may be properly regulated and governed, he is bound to do so in such manner that those rightfully led to assume that For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the act or duty will be properly performed shall not suffer injury by his negligence.

4. Negligence

110-Pleading contract for sale of machine injuring buyer's

employé held proper.

In an action by a farm hand against a manufacturer, selling a tractor, for injuries sustained while being taught to operate the machine, the contract between the manufacturer and plaintiff's employer was properly set out to show the relationship between the parties, the defendant's duty to the plaintiff arising out of the relations between them.

5. Negligence 2-Seller of tractor liable for injuries to buyer's employé. Where a manufacturer sold a tractor, agreeing with the purchaser to teach his infant employé how to operate it, the seller was liable to the employé for any negligence in the work of teaching leading to his injury, as by leaving unguarded a part of the tractor which, when inadvertently touched, put it in motion and crushed the employé's foot.

Appeal from Special Term, Oneida County.

Action by Perry B. Miller, an infant, by Frank P. Miller, his guardian at litem, against the International Harvester Company of New Jersey. From an order denying plaintiff's motion for judgment on the pleadings, and sustaining defendant's demurrer to the complaint, and directing judgment for defendant on the pleadings, also from judgment dismissing plaintiff's complaint entered on such order, plaintiff appeals. Order and judgment sustaining demurrer reversed.

Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ.

Putney, Twombly & Putney, of New York City (Lemuel Skidmore, Jr., of New York City, of counsel), for appellant.

Underwood, Storke, Seward & Elder, of Auburn (Frederic E. Storke, of Auburn, of counsel), for respondent.

HUBBS, J. The complaint in this action alleges that the plaintiff is an infant more than 18 years of age; that he was employed by one Garlock as a farm helper; that defendant is a corporation engaged in manufacturing kerosene oil tractors; that the defendant sold and delivered to Garlock a tractor; that the defendant, at or about the time of the sale of the tractor, agreed with Garlock "to teach, and did teach and instruct, the plaintiff herein as employé of said Garlock in the operation of said tractor, for the purpose of enabling the plaintiff to operate said tractor as employé of Garlock upon the farm of said Garlock"; that upon the tractor there was a certain exposed unguarded part, which, if touched while the motor was running, would set the tractor in motion; that there was a locking device thereon which would prevent the starting of the tractor, if said exposed part was touched; that the defendant, in teaching the plaintiff, failed to inform him that, if he touched said part, it would start the tractor, and failed to inform him about the locking device; and that the plaintiff, while working, touched said exposed part with his foot, the tractor started, and his left foot was so crushed that it had to be removed. The defendant demurred to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action. The Special Term sustained the demurrer.

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(184 N.Y.S.)

We think the complaint states a cause of action. The question is whether or not the manufacturer of a tractor, who agrees upon the sale thereof with the purchaser to instruct his hired man how to operate the same, and in pursuance of such agreement does give instructions, is liable, in an action for negligence, to such hired man, who is injured because of negligence in giving such instruction.

[1] We are bound, in passing upon this demurrer, to take the statements of the complaint as true. We will assume that, if there had been no agreement to instruct the plaintiff and no attempt to instruct him, there would be no liability. We will exclude the rule applicable in some cases to the sale of dangerous instrumentalities. Does the sale of a tractor, with an agreement with the purchaser to teach an infant helper how to operate it, when the seller enters upon the work of teaching the helper in pursuance of the agreement, bring the seller and the servant into such relation as to make the seller liable to the servant of the purchaser for negligence in the performance of the work of teaching?

[2] It is urged by the respondent that there was no contractual relation between the plaintiff and the defendant, that the agreement to teach the plaintiff was not made with the plaintiff or for his benefit, but that it was an agreement between the defendant, the seller, and the plaintiff's master, the purchaser. Our attention is called to the rule that there cannot be negligence without duty, and that there is no duty without privity, that there was no privity between the plaintiff and the defendant, that the defendant did not owe the plaintiff any duty, and that it had no contract with him or for his benefit. It is urged that it was the duty of the plaintiff's master to instruct him, and that the plaintiff could not have maintained an action. against the defendant for failure to instruct him. It is doubtless true that, where a cause of action arises out of a breach of duty created by a contract, there must be privity of contract between the person bringing the action and the defendant. There are, of course, wellestablished exceptions to this rule. 29 Cyc. 478.

[3] There are cases where the law imposes duties in addition to those created by express contract. In those cases—

"liability for negligence rests on the principle that, if a person undertakes to do an act or discharge a duty by which the conduct of another party may be properly regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of his negligence." 29 Cyc. 426; Wharton on Negligence (2d Ed.) § 437.

In Wallace v. Casey Co., 132 App. Div. at 40, 116 N. Y. Supp. 398, Justice Miller said:

"Ever since the leading case of Coggs v. Bernard, 2 Ld. Raym. 909, Smith's Leading Cases, 354, one undertaking gratuitously to discharge a duty has been held accountable for the manner of its discharge."

In Wittenberg v. Seitz, 8 App. Div. at 441, 40 N. Y. Supp. 900, Justice Adams said:

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