Service Commission should be annulled, with Order reversed, etc. (220 N. Y. 71) GLATZL et al. v. STUMPP. In re STANDARD ACC. INS. CO. (Court of Appeals of New York. Jan. 30, 1917.) 1. MASTER AND SERVANT 361-WORKMEN'S COMPENSATION LAW-"HAZARDOUS EMPLOYMENT"-DELIVERY DRIVER. An employé of a florist, whose duty it is to drive the delivery wagon, is within the protection of the Workmen's Compensation Law (Consol. Laws, c. 67), which enumerates the operation of wagons and other vehicles as a hazardous employment, though the business of a florist is not of itself hazardous. [Ed. Note. For other cases, see Master and livered. Arriving at that place, the other Servant, Dec. Dig. 361.] 2. MASTER AND SERVANT 373—WORKMEN'S COMPENSATION ACT-INJURIES INCIDENT TO EMPLOYMENT. Where the driver of the florist's delivery wagon, who was to assist in making deliveries when necessary, received injuries which resulted in his death when the ladder, on which he was standing while arranging a window box after making a delivery, fell, those injuries were not an incident of his hazardous employment as driver of the delivery wagon, and his dependents are not entitled to compensation therefor under the Workmen's Compensation Law. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 373.] 3. MASTER AND SERVANT 418(6)-REVIEWDECISION OF INTERMEDIATE COURT FIND ING OF FACT. Where the Industrial Commission found in detail the circumstances of the accident in which an employé was injured, and also found that the work he was doing when injured was incidental to his hazardous employment, the unanimous affirmance of the award by the Appellate Division was not a finding of fact that the injury was incidental, but a mere conclusion from the specific facts, and it can be reviewed by the Court of Appeals. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 418(6).] man on the wagon delivered the flowers, and Glatzl and the other man proceeded to adjust a window box in the house. For this purpose Glatzl got up on a ladder in front of the house, and while working there he lost his balance and fell into the front areaway, and the window box fell on top of him, causing a compound fracture of left thumb and lacerations of the same. On or about November 17th the wound showed evidence of infection. On November 24th Glatzl died from tetanus, which had developed as a result of his injury. [1] The Workmen's Compensation Law, in its enumeration of hazardous employments covered by the act, mentions the following: "The operation, otherwise than on tracks, on streets, highways, or elsewhere, of cars, trucks, Section 2, group 41. wagons or other vehicles." It has been said that the employer of Franz Glatzl was engaged in carrying on the busiLess of a florist, which is not a hazardous employment, under the act, and that Glatzl, his employé, was not, therefore, protected in that view. It is true that the business of florWe do not accept any degree by the statute. ist is not mentioned in the act as a hazardous Appeal from Supreme Court, Appellate Di-employment; but in this case, as incident to vision, Third Department. his business, the florist undertook to deliver Claim under the Workmen's Compensation to his customers the flowers which they purLaw by Eugenie Glatzl and others for com- chased, and in carrying on that branch of pensation for the death of Franz Glatzl, op- the business he operated a wagon on the posed by G. E. M. Stumpp, employer, and the streets and highways of the city. That was Standard Accident Insurance Company, in- within the words of the statute a hazardous surance carrier. The State Industrial Com-employment, and Glatzl was hired to drive mission made an award of compensation, the wagon. If the injury which he received which was affirmed by the Appellate Division (159 N. Y. Supp. 1115), and the employer and insurance carrier appeal. Order of Appellate Division reversed, and determination of Industrial Commission annulled. See, also, 160 N. Y. Supp. 1131. William A. Jones, Jr., of New York City, for appellants. Egburt E. Woodbury, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondents. had arisen out of and in the course of that employment, it would seem plain that a case under the statute was made out. Matter of Larsen v. Paine Drug Co., 218 N. Y. 252, 112 N. E. 725. Then the widow and children would be entitled to the award, but Glatzl was not engaged in such service when he fell. [2] I can observe no connection between the driving of the delivery wagon by Glatzl and his fall from the ladder which resulted For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in his death. In order to charge the em- men in hazardous employments." Section 3, ployer with liability under the Workmen's subd. 3. "Employment" included "employCompensation Law, the court must be ablement only in a trade, business or occupation to see that the hazards which accompanied carried on by the employer for pecuniary the duties of the employé have turned against gain." Section 3, subd. 5. If employment means employment only in a hazardous trade, business, or occupation carried on by the employer, the test of lia him to his loss and damage. If there is only a casual or remote connection between the hazard of the employment and the loss, if the one does not flow naturally from the oth-bility for compensation is the trade, business, er, the liability is not established. It was not because Glatzl was the driver of the delivery wagon that he fell from the ladder. Any other person adjusting the window box might have been injured in the same manner. The case of Matter of Costello v. Taylor, 217 N. Y. 179, 111 N. E. 755, on which the Attorney General relies, does not authorize a recovery here. [3] The Industrial Commission found in detail the circumstances of the accident in which Glatzl was injured, and also found in substance that the work which he was doing when injured was incidental to driving the delivery wagon. The determination of the Appellate Division affirming the award of the Commission was unanimous, and it has been said that the unanimous affirmance prevents this court from reviewing the question whether the work of the decedent when injured was or was not incidental to the operation of the delivery wagon. That was simply a conclusion drawn from the facts found in detail, about which there was no dispute at the Appellate Division, and about which there is no dispute in this court. We have, therefore, power to review the determination made at the Appellate Division. Otten v. Manhattan Ry. Co., 150 N. Y. 395, 44 N. E. 1033. The order of the Appellate Division should be reversed, and the determination of the State Industrial Commission annulled, with costs against the State Industrial Commission. or occupation of the employer. The florist's business is not classified as hazardous; therefore his employés were not protected. Employment as a driver by a florist is not employment in the occupation of operating wagons or other vehicles, for that is not found to be the florist's occupation. If the business of the employer in certain cases may be such that it may be said that he operates wagons as a part thereof, although his principal business is nonhazardous, that does not help Glatzl, for the findings are that his employer was engaged in the florist's business, and there is no finding that the employer was engaged in the occupation of operating wagons. While I think that the law originally did not contemplate the occupation of the employé as a test, it does so now, for by Laws 1916, c. 622, "employé" is defined to mean either a person engaged in one of the occupations specified or who is in the service of an employer whose principal business is that of carrying on a specified hazardous employment. CHASE, COLLIN, HOGAN, and CAR DOZO, JJ., concur with CUDDEBACK, J. (220 N. Y. 18) WADDLE v. CABANA. (Court of Appeals of New York. Jan. 9, 1917.) 1. APPEAL AND ERROR 1175(7) APPELLATE DIVISION RENDERING FINAL JUDGMENT. cision of the trial court without a jury, the AppelOn appeal from judgment entered on the delate Division may deal with the evidence as the trial court should have done, and may render final judgment accordingly without granting a new trial, under Code Civ. Proc. § 1317, as to judgment or order of Appellate Division upon appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4581; Dec. Dig. 1175(7).] 2. APPEAL AND ERROR 1083(3)—APPELLATE DIVISION-REVERSAL. POUND, J. (concurring in the result). As it is clear that Glatzl was not engaged in the occupation of a driver, or in doing anything incidental thereto, when he was injured, the decision of the question whether he was protected in any degree by the Workmen's Compensation Law is unnecessary to the proper disposition of the case; but I am decidedly of the opinion that under the Workmen's Compensation Law (Laws 1914, c. 41) as it was at the time of the accident, unless the employer was engaged in an enumerated hazardous trade, business, or occupation, his employés did not have the benefit of the law. Compensation was provided for injuries sustained or death incurred "by employés engaged in the following [42 enumerated] hazardous employments." Section 2. But "employé" meant "a person who is engaged in a hazardous employment in the service of an 3. APPEAL AND ERROR 1083(3)-DECISIONS employer carrying on or conducting the REVIEWABLE-MARKET VALUE OF STOCK. same." Section 3, subd. 4. "Employer" In action for specific performance of conmeant a person employing work-tract to sell stock, where there was no conten A judgment of reversal by the Appellate Dipresents to the Court of Appeals a question of vision, expressly disapproving a finding of fact, law whether there was any evidence in the trial court to support the finding disapproved of by the Appellate Division. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4278, 4279, 4345, 4346; Dec. Dig. 1083(3).] tion that the stock had an ascertainable market to plaintiff's intestate 100 shares of stock, value and it appeared that no price had been and dismissing the complaint on the merits, established by public sales in the way of ordinary business, nor had any other property of plaintiff appeals. Reversed, etc. the same kind been the subject of purchase and sale, the Appellate Division's disapproval of the finding of the trial court that there was no known or ascertained market value for the stock was erroneous as a matter of law, and the finding should be reinstated. [Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 4278, 4279, 4345, 4346; Dec. Dig. 1083(3).] 4. APPEAL AND ERROR 1083(3)-APPELLATE DIVISION-REVERSAL-EXERCISE OF DISCRE TION. In action where relief may depend upon the discretion of the court, and where judgment of the Appellate Division, reversing a judgment granting relief, shows such reversal was on the facts in the exercise of discretion, no question of law remains for the consideration of the Court of Appeals. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4278, 4279, 4345, 4346; Dec. Dig. 1083(3).] 5. SPECIFIC PERFORMANCE. 70 FOR PURCHASE OF STOCK. - CONTRACT A contract for the purchase of stock freely sold in the market is not specifically enforceable, as an adequate remedy at law exists in such cases. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. § 203; Dec. Dig. 70.] 6. SPECIFIC PERFORMANCE 70-CONTRACT FOR PURCHASE OF STOCK. Where stock was not sold on the market, but was practically all owned by one man and could be obtained only from him and only as a favor and for special reasons, a purchaser to whom the sale of such stock had been contracted was entitled to specific performance of such contract as a matter of law. [Ed. Note.-For other cases, see Specific Per formance, Cent. Dig. § 203; Dec. Dig. 70.] 7. SPECIFIC PERFORMANCE 70-MUTUALITY -PROMISSORY NOTE. Specific performance of a contract to sell stock will not be denied to administratrix of the purchaser because the contract called for the note of her decedent as evidence of his indebtedness, and because performance became impossible by his death; the contract being one for the payment of money, and not a personal one. [Ed. Note.-For other cases, see Specific Per: formance, Cent. Dig. § 203; Dec. Dig. 70.] 8. TAXATION 533, New, vol. 11 Key-No. Series TRANSFERS OF STOCK. Carlton E. Ladd, of Buffalo, for appellant. Daniel J. Kenefick, of Buffalo, for respondent. POUND, J. This is an appeal from the Appellate Division, Fourth Department, unanimously reversing a judgment of the sell and transfer to the plaintiff, as adminisErie Equity Term, directing that defendant tratrix of the estate of her deceased husband, 100 shares of the capital stock of the corporation known as the Buffalo Specialty Company, at the agreed price of $250 the share, in specific performance of a contract therefor entered into between respondent and the appellant's intestate in his lifetime, by the terms of which appellant's intestate was to execute his promissory note for $25,000, payable $2,500 annually, the stock to remain as collateral security for the indebtedness until it was fully paid. The contract is not in dispute. The only stock in the corporation not owned by respondent consists of 11 out of 5,000 shares. Respondent has entire control of the business; success therein depends largely upon the success of specialties manufactured by secret processes. Appellant's intestate was the general manager of the company. contract was made on the 1st day of August, 1912, and he died on the 8th day of September, 1912. The order of the Appellate Division provides as follows: The "Ordered, that the judgment so appealed from be, and the same hereby is, reversed, and judg ment directed for the defendant, dismissing the complaint, with costs, including the costs of this appeal, and the fifth finding of fact, so far as it states 'that the said stock has no known or ascertained market value,' is hereby disapproved. Held, that the plaintiff did not make a case for specific performance, or show that she did not have an adequate remedy at law for damages." As the answer admits, in substance, that the stock had no market value, and that any price placed upon the same has been by private agreement, and as the evidence and the findings fully sustain the allegations of the complaint in this regard, the reasons for the reversal are not clear from the statement of the court below that it disapproves the finding set forth in its order, and holds that plaintiff had not made out a case for specific performance. The necessary inference seems to be that the Appellate Division was not satisfied on the evidence with this finding Appeal from Supreme Court, Appellate of the trial court, and by disapproving it Division, Fourth Department. A contract for the purchase of corporation stock was not unenforceable for failure to comply with Tax Law (Consol. Laws, c. 60), §§ 270278, relative to taxable transfers of stock, for the statute would be fully satisfied when the stock certificates were actually transferred, since the seller would then have to stamp them to make an effective delivery in fulfillment of his contract. Cuddeback, J., dissenting. intended to leave the appellant without find Action by Edna P. Waddle, as adminis-ings sufficient to make out a case for specific tratrix, etc., against Oliver Cabana, Jr. From a judgment of the Appellate Division, Fourth Department (169 App. Div. 968, 154 N. Y. Supp. 1149), reversing judgment of the Erie Equity Term, which required defendant to perform his contract to sell and transfer performance, because it would not then appear that she did not have an adequate remedy at law. It left undisturbed the findings that the stock of the Buffalo Specialty Company was almost entirely owned by the respondent; that it had a large, special, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes peculiar value, and that it could not be ob- late Division thought that on the facts the tained on the market. stock had no ascertainable value. This court [1-4] On an appeal from a judgment en-reversed the Appellate Division, and ordered tered on the decision of the trial court with- judgment on the report of the referee (186 out a jury, the Appellate Division may deal N. Y. 259, 78 N. E. 1002), because the order with the evidence as the trial court should of reversal was silent as to the grounds. If have done and may render final judgment ac- it had appeared that the Appellate Division cordingly without granting a new trial. Code had reversed on the facts in the exercise of Civ. Pro. § 1317; Lamport v. Smedley, 213 N. discretion, this court would have affirmed the Y. 82, 106 N. E. 922; Acme Realty Co. v. Appellate Division, but it was compelled to Schinasi, 215 N. Y. 495, 109 N. E. 577, L. R. assume that the judgment was reversed on A. 1916A, 1176. In this case, in the exercise the law only, and as no error of law appearof its original jurisdiction, it disapproved a ed and there was evidence to sustain the finding of fact, as appears on the face of the findings of the referee, the judgment entered order (Code Civ. Pro. § 1338), and then re- upon the report of the referee was necessaversed the judgment. It follows that in this rily affirmed. In Clements v. Sherwood-Dunn, court the question of law is presented-this 108 App. Div. 327, 95 N. Y. Supp. 766, the being a judgment of reversal and not of af- trial court granted specific performance, the firmance whether there was any evidence to Appellate Division reversed and granted a permit a finding that the stock had not a new trial. It appeared that there had been known or ascertainable market value (Liv-sales of the stock, and that the defendant did ingston v. City of Albany, 161 N. Y. 602, 604, not own a large majority of it. Plaintiff 56 N. E. 148), for the court below could not stipulated for judgment absolute, and came disapprove the finding of the trial court ex- to this court, which affirmed the Appellate Dicept on the evidence. The case is destitute vision (187 N. Y. 521, 79 N. E. 1102) without even of the contention that the stock had any opinion, presumably because it appeared that known or ascertainable market value. No on the law a case for specific performance price therefor has been established by pub-had not been established. lic sales in the way of ordinary business. No [5, 6] The value of the stock in suit can be other property of the same kind has been the ascertained only in the most speculative way. subject of purchase and sale. Sloan v. Baird, A contract for the purchase of stock freely 162 N. Y. 327, 330, 56 N. E. 752. The disap-sold in the market would not be thus enproval of the finding of the trial court was forced, for an adequate remedy at law extherefore erroneous, and, as matter of law, ists in such cases, but to deny this remedy the finding should be reinstated. The when the stock has no ascertainable value, is findings are sustained by the evidence and nearly all owned by one man, and can be obsustain the judgment. It follows that the tained only from him, and only as a favor judgment of the Appellate Division should be and for special reasons, would be to deny to reversed and that of the Trial Term affirm- appellant the substantial benefit of the coned, but it does not appear that the Appellate tract (Butler v. Wright, supra; Adams v. Division reversed in the exercise of discre- Messinger, 147 Mass. 185, 188, 17 N. E. 491, tion. In an action for specific performance 9 Am. St. Rep. 679; Northern Ry. Co. v. of a contract relating to personal property, Walworth, 193 Pa. 207, 44 Atl. 253, 74 Am. the case presented may be a proper one for such relief in the sound discretion of the court, but not as matter of right (Butler v. Wright, 186 N. Y. 259, 78 N. E. 1002), and if the judgment below had proceeded on the theory that no case had been made out to jus- [7] Respondent urges that relief should be tify the exercise of discretion in appellant's denied for lack of mutuality, because the confavor, no question of law would remain. The tract called for the personal promissory note Appellate Division was authorized to reverse of Waddle for $25,000 as evidence of his inin its discretion, upon a consideration of the debtedness for the purchase price of the facts, but it was not bound or authorized to stock, and that by his death performance bedo so as a question of law. Butler v. Wright, came impossible. But the contract is not one supra. The reversal was because the facts for the personal services of Waddle, and did found by the Appellate Division were held not depend on his continued existence. It to be insufficient to sustain the judgment was for the payment of money by him, and on the law. The practice has been indicated in two recent cases in this court. In Butler v. Wright, 103 App. Div. 463, 93 N. Y. Supp. 113, the referee had found for plaintiff, and ordered specific performance because the stock had no market or ascertainable value. The Appellate Division reversed, but the order of reversal did not specify the ground. St. Rep. 683), and defeat the relief which should in conscience be given. On the law, the appellant was entitled to the judgment of the trial court, and it was error to reverse on the law. his death did not put on end to the obligation of the parties. Lorillard v. Clyde, 142 N. Y. 456, 462, 37 N. E. 489, 24 L. R. A. 113. His estate is bound by the obligations in the contract. The trial court has found, and the finding remains undisturbed, that the note was not a material condition of the agreement, and was not insisted upon by the de fendant as collateral security for the indebt-[3. TRUSTS 217(1)-TRUST FUNDS--COMBINATION OF TRUST FUNDS-MANNER OF KEEPING ACCOUNTS. edness and to be released only when the same was fully paid, the note was to be merely evidence of the indebtedness. The contract was mutual in its obligation and remedy. It binds the plaintiff, and the defendant must perform. Catholic Foreign Mission Society v. Oussani, 215 N. Y. 1, 8, 9, 109 N. E. 80. The question at most addressed itself to the discretion of the court, and no error of law is presented in the finding thereon. [8] The contract is not unenforceable for failure to comply with the Tax Law (sections 270-278) relative to taxable transfers of stock. When the stock certificates are actually transferred, the seller must stamp them to make an effective delivery in fulfillment of his contract (Bean v. Flint, 204 N. Y. 153, 157, 97 N. E. 490), and the statute will then be fully satisfied. The judgment of the Appellate Division should be reversed, and the judgment entered upon the decision of the trial court affirmed, with costs in the Appellate Division and in this court. COLLIN, HOGAN, and CARDOZÓ, JJ., concur. CUDDEBACK, J., dissents. HISCOCK, C. J., absent. Judgment reversed, etc. (219 N. Y. 514) In re UNION TRUST CO. OF NEW YORK. When trust or other funds are combined for a single investment, the instrument, acknowledging and securing the investment or some to be bound thereby, should show the true owncontemporaneous, instrument executed by those ers thereof and the interests therein of the several persons or trusts whose funds have been combined in making the investments. Dig. §§ 301-303, 309; Dec. Dig. 217(1).] [Ed. Note.-For other cases, see Trusts, Cent. 4. TRUSTS 217(1)—TRUST FUNDS-INVEST MENT. The rule that a trustee should not invest trust funds in his own name should not be abandoned, qualified, or in any way impaired; ing the same in this respect. the duty of a corporate or individual trustee be [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 301-303, 309; Dec. Dig. 217(1).] 5. TRUSTS 217(1)—TruST FUNDS-INVEST MENT. Trust funds should not only be kept independent of individual or other trust funds, but the investments thereof should, so far as possible, be clearly defined, and at all times stamped with the individual trust to which they severally belong. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 301-303, 309; Dec. Dig. 217(1).] 6. TRUSTS 217(1)-TRUST FUNDS-INVESTMENT BY TRUST COMPANIES. The investment by a trust company of trust funds in securities in its own name and in its own right, leaving the account relating thereto wholly to its own bookkeeping and the form adopted by it for keeping accounts, violates the rule that trustee should invest trust funds in the name of the trustee as such, and also the rule that trust funds should, at all times, be kept so far as reasonably possible in the name of the trust, so that they can be identified, dised therein. (Court of Appeals of New York. Dec. 28, 1916.) tinguished, and followed by all persons interest 1. TRUSTS 324 INVESTMENT OF TRUST FUNDS-DECLARATIONS OF TRUST. Declarations of trustee that certain investments previously made on bonds and mortgages were allotted to certain trust estates when full, complete, and open to inspection in a public office, or where they are full and complete and in the possession of the parties interested in the investments, so that the rights of the several persons or trusts therein can be fully established thereby are sufficient to answer, upon an accounting, all objections to the form of investments theretofore made of the trust funds, for the decree upon an accounting in such case rests upon the fact that declarations of trust have been actually made and delivered, and not in approval of the original or other investments made in the individual name of the trustee. [Ed. Note.-For other cases, see Trusts, Cent. Dig. 482; Dec. Dig. 324.] 2. TRUSTS 217(1)-TRUST FUNDS-INVEST- [Ed. Note.-For other cases, see Trusts, Cent. Dig. 88 301-303, 309; Dec. Dig. 217(1).] 7. TRUSTS 217(1)—TRUST FUNDS-INVESTMENT-KEEPING IDENTITY OF TRUST FUNDS SEPARATE. The identity of investment of trust funds should not, when otherways reasonably possible. be wholly dependent upon the continuance of rules relating thereto by corporate trustees or the accuracy and honesty of bookkeepers and employés. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 301-303, 309; Dec. Dig. 217(1).] 8. TRUSTS 217(1)-TRUST FUNDS-LEGALITY OF TRUST COMPANY'S INVESTMENTS. Where a trust company in charge of trust funds made investments in bonds and mortgages in its own name and in its own right, and clearly allotted on its own records the proportion of each investment held by each trust, and notified the life beneficiaries of each trust by letter of investments and changes in investments at the time when made, with full statements thereof, and sent at regular intervals to the life beneficiaries, and to the remaindermen if they wished, principal accounts, recapitulating all the mortgages, and the ownership of any mortgage, interest, or share in mortgage held for such trust could be established, the beneficiaries could not complain of the investments so reported to them. [Ed. Note.-For other cases, see Trusts. Cent. Dig. §§ 301-303, 309; Dec. Dig. 217(1).] Willard Bartlett, C. J., dissenting in part. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-67 |