given enforcement by the courts of New York and held to prevent recovery here. The plaintiff at bar seeks, however, to avoid these salutary rules of comity by assertion of the principle that New York courts will not recognize or enforce any statute or decision of another state, if the same be contrary to the established public policy of this commonwealth. Counsel for the plaintiff ingeniously argues that under the decision in Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A. (N. S.) 162, Ann. Cas. 1912B, 156, the New Jersey Compensation Act of 1911 must be regarded as repugnant to the fundamental public policy of this state, that accordingly no New York court can recognize the 1911 statute as effectively superseding or repealing the Liability Act of 1909, and that, therefore, the plaintiff may maintain suit in New York under a New Jersey statute which the legislative, executive, and judicial authorities of that state do not recognize as in force at the time the plaintiff was hired or at the time he was hurt. [3] I cannot accept the contention of counsel that the Compensation Act of 1911 is repugnant to the public policy of this state. By going to New Jersey to obtain work, the plaintiff submitted himself to the law of the place of contract, and, if New Jersey courts find nothing in the 1911 statute to offend, why should New York courts reject it and remand the parties to protracted litigation under a statute which is out of harmony with the humanitarian spirit of to-day? In the first place, is any New York court now warranted in holding that a workmen's compensation statute is contrary to the public policy of this state? By a constitutional amendment adopted in November, 1913, the people of the state declared, by an overwhelming majority, that no conception of public policy should thereafter be held to invalidate any workmen's compensation act, whether "compulsory" or "elective" in form. This state has itself put in force a compensation plan far more sweeping than the optional system embodied in the New Jersey law. It would be a curious turning back of the scroll of events to hold that "public policy" still prevents New York from recognizing New Jersey decisions upholding the constitutionality of a New Jersey statute applicable to a right concededly to be determined on the basis of the New Jersey law. In the second place, with the public policy of New York now so definitely aligned on the side of compensation legislation, it at least seems reasonable to regard the decision in the Ives Case as hereafter applicable only to the precise matter before the court in that case, viz., a statute imposing liability on the employer "without his consent and without his fault." The New Jersey act of 1911 is "optional" or "elective" in form, and in many American courts the Ives decision has been held to be no precedent for the unconstitutionality of an "elective" system of compensation. Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489; Opinion of Justices, 209 Mass. 607, 96 N. E. 308; Mondou v. New York, New Haven & Hartford R. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554; Sexton v. Newark District Telegraph Co., supra; State v. Clausen, 63 Wash. 535, 116 Pac. 7; Young v. Duncan, 218 Mass. 346, 106 N. E. 1, decided by the Supreme Court of Massachusetts in June, 1914. I do not believe that the Ives decision would properly be deemed now a holding that the public policy of this state forbids a compensation plan “optional" in the New Jersey sense; i. e., applicable unless the parties exercise their option and express in writing their intention not to be governed thereby. An adjudication precisely in point is that in Albanese v. Stewart, 78 Misc. Rep. 581, 138 N. Y. Supp. 942, in which, as here, the plaintiff sued in New York for injuries received while he was employed in New Jersey. The defendant pleaded the New Jersey Compensation Act of 1911, and the plaintiff demurred to the defenses based thereon. Mr. Justice Cohalan, in overruling the demurrer, held that the New Jersey statute determined the plaintiff's rights and that the conceptions of public policy declared in the Ives decision did not bar the New Jersey act of 1911 from full recognition in the courts of New York. In Schweitzer v. Hamburg-American Line, 78 Misc. Rep. 448, 138 N. Y. Supp. 944, the question was whether the employé's compensation act of Germany barred a New York action at common law by a workman hired in Germany. The learned justice in the Kings County Special Term held that the German statute was such a bar, and that the public policy of this state was not contravened by an "elective" or "optional" system of compensation, such as provided for in the German act. The Appellate Division for the Second Department evidently reached the same conclusion, in deciding a question of pleading in the same case. Schweitzer v. Hamburg-American Line, 149 App. Div. 900, 134 N. Y. Supp. 812. Essentially the question under consideration was before the Appellate Division for the Second Department last February, in Bakewell v. Orford Copper Co., 160 App. Div. 671, 145 N. Y. Supp. 1070. The employé, who sued in this state, had been injured on an unguarded circular saw in a factory at Constable Hook, N. J., prior to the enactment of the Compensation Act of 1911. Under the antecedent statutes, as construed by the New Jersey courts, an employé might assume the risk of injury from an unguarded saw, even though, as was true in this case, an explicit statutory provision required the employer to provide suitable guards for such saws. Mika v. Passaic Print Works, 76 N. J. Law, 561, 70 Atl. 327; Goodrich v. Cort, 80 N. J. Law, 653, 77 Atl. 1049. The trial court submitted to the jury the question of assumption of risk, and the jury found adversely to the plaintiff. On appeal, the injured workman called attention to decisions. of the New York Court of Appeals, subsequently to the trial of the action, in which the rule of the earlier case of Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986, 32 L. R. A. 367, was reversed, and the position was taken by Chief Judge Cullen that the public policy of this state "precludes an employé from assuming the risk created by a vio lation of the statute or waiving liability of the master for injuries caused thereby." Fitzwater v. Warren, 206 N. Y. 355, 99 N. E. 1042, 42 L. R. A. (N. S.) 1229; Welch v. Waterbury Co., 206 N. Y. 522, 100 N. E. 426. From this it was argued that the public policy of this state forbids recognition of the New Jersey rule that the employé may assume the risk created by a violation of statute. The learned justice who wrote for the Appellate Division, while in evident sympathy with the conception of public policy declared by Chief Judge Cullen (see Welch v. Waterbury Co., 159 App. Div. 509, 144 N. Y. Supp. 688), held that in determining rights governed by the New Jersey statute the New York courts should give effect to the view of law and policy declared by the highest courts of New Jersey. The people of New Jersey, in response to a humanitarian sentiment largely created by organizations of employés, have established by statute a comprehensive and scientific system of compensation for personal injuries sustained by employés of the industrial enterprises of that commonwealth. The new system is deemed an enlightened and economical substitute for the haphazard and wasteful resort to litigation, which was the misfortune of both employer and employed, even under the Liability Act of 1909. The people of this state, by a deliberate expression of their mature will, have gone even further than the people of New Jersey in establishing the fundamental policy of the commonwealth as favorable to legislation of this character. No fancied fealty to those conceptions of policy held in this state before the adoption of the recent constitutional amendment should lead New York courts to refuse full enforcement now to the salutary New Jersey statute of 1911 and to the enlightened construction placed upon it by New Jersey courts. The first trial of this case lasted three days and resulted in a disagreement of the jury. When it came on for retrial before me, I felt that the question of plaintiff's right to maintain this action should be determined before testimony was taken. After hearing argument, I granted the defendant's motion to dismiss, with the understanding that, if after the submission of briefs I became convinced that the dismissal was error, I would restore the cause to the calendar. The foregoing considerations convince me of the correctness of the action taken on the trial, and an order dismissing the complaint may now be entered. Complaint dismissed. (87 Misc. Rep. 141) PAUL ARMSTRONG CO. v. MAJESTIC MOTION PICTURE CO. (City Court of New York. October, 1914.) 1. ATTORNEY AND CLIENT (§ 81*)-AUTHORITY OF ATTORNEY-RATIFICATION OF ACTS-SUFFICIENCY OF EVIDENCE. Evidence in an action to recover advance royalties on previously executed written contracts binding defendant to produce motion pictures based on copyrighted dramas belonging to plaintiff, which agreement was made by defendant's attorney in consideration of the discontinuance of a temporary injunction obtained by plaintiff against defendant, held insufficient to show that defendant's attorney was authorized to make such agreement or that defendant had ratified the agreement. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 141, 142, 144-146; Dec. Dig. § 81.*] For other cases see same topie & § NUMBER in Dec. & Am. Digs. 1907 to date & Rep'r Indexes 2. PRINCIPAL AND AGENT (§ 99*)-ACTS OF AGENT-WHEN BINDING ON PRINCIPAL APPEARANCE OF AUTHORITY. A principal is responsible only for such unauthorized acts of his agents as are done under an appearance of authority caused by himself, and not for acts done under an appearance of authority caused only by the agent. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 254261; Dec. Dig. § 99.*] 3. ATTORNEY AND CLIENT (§ 81*)-CONTRACTS ON BEHALF OF CLIENT-BUBDEN OF PROOF. In an action to recover advance royalties under an agreement made by defendant's attorney in consideration of the discontinuance of an injunetion, the burden was on plaintiff to prove that the attorney was defendant's agent, with authority to agree to such discontinuance and to the making of the advance payment. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 141, 142, 144-146; Dec. Dig. § 81.*] Action by the Paul Armstrong Company against the Majestic Motion Picture Company. On motion for new trial. Denied. Phelan Beale, of New York City, for plaintiff. Seligsberg & Lewis, of New York City (Clarence M. Lewis, of New York City, of counsel), for defendant. FINELITE, J. This action came on for trial on October 14, 1914, before this court and jury, to recover the sum of $1,000 as advance royalties. At the end of the plaintiff's case a motion was made by the defendant to dismiss the complaint on the ground that the plaintiff had failed to prove facts sufficient to constitute the cause of action mentioned in the complaint, and on the specific grounds that the plaintiff has affirmatively proved an agreement which was intended to be made with the defendant through a person not having authority to bind the defendant, and that the party acting for the defendant had no authority on behalf of the defendant to make the agreement to pay $1,000 to the plaintiff, and that it was without the scope of his agency or employment. The court thereupon dismissed the complaint, upon the ground that it affirmatively appeared from the testimony of plaintiff's attorney, who was the vice president of the plaintiff, that he failed to prove that the attorney for the defendant had authority to pay $1,000 for the discontinuance of the temporary injunction which had been obtained by the plaintiff against the defendant. Plaintiff thereupon moved for a new trial on all the grounds stated in section 999 of the Code of Civil Procedure, which motion the court entertained. [1] It will be necessary to refer to the facts testified to herein to spell out, if possible, a cause of action in behalf of the plaintiff. It appears that the plaintiff and the defendant were domestic corporations, each having a place for the transaction of business in the borough of Manhattan, city of New York, and that on the 14th day of November, 1913, the plaintiff and defendant each with the other entered into two certain agreements in writing, wherein and whereby the defendant promised and agreed, among other things, to produce on the terms. and conditions and for the compensation therein set forth certain mo *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date. & Rep'r Iudexes tion pictures based upon and depicting two certain copyrighted dramas, entitled respectively "The Escape" and "The Romance of the Underworld." Said dramas were the property of the plaintiff. Defendant was to produce the same on or prior to the 1st day of February, 1914, and on the failure of the defendant to produce said dramas on or before said time the plaintiff was at liberty to terminate the agreement upon notice to the defendant. The defendant failed to produce said dramas in the form of motion pictures on or before the 1st day of February, 1914. A notice was duly served in writing upon the defendant that the defendant's right, title, and interest accruing to it under either of the said agreements was terminated and at an end, and that the plaintiff was duly reinvested in said dramas. Thereafter, on the 10th day of March, 1914, the plaintiff instituted an action against the defendant in the Supreme Court, in the county of New York, asking as relief that judgment be awarded in favor of the plaintiff against the defendant, and decreeing that the defendant have no right, title, or interest of any kind in and to a certain one of the said dramas, to wit, the drama entitled "A Romance of the Underworld," or any rights under the said agreement thereto relating, and praying that a permanent injunction issue restraining a violation by defendant of plaintiff's rights, the plaintiff praying as a further relief that the said court should grant an injunction pendente lite restraining the defendant from producing said drama "The Romance of the Underworld" in motion pictures or otherwise, or from selling or disposing of the same, or otherwise interfering with the rights of the plaintiff in and to said drama. The motion papers for said injunction pendente lite were served on the defendant, together with the summons and complaint in said action, on the 10th day of March, 1914. The motion was made returnable on the 20th day of March, 1914. On the 18th day of March, 1914, two days previous to the hearing of said motion, plaintiff and defendant's attorney entered into a certain oral agreement relating to the withdrawal by the plaintiff of the said application for an injunction pendente lite and discontinuance of the suit. Defendant's attorney promised and agreed with the plaintiff that the defendant would then and there pay to the plaintiff the sum of $1,000 at once or before the end of the day in exchange for said promise and agreement of the defendant's attorney and concurrently therewith, and in consideration therefor the plaintiff made its promise to and agreed with the defendant's attorney that the plaintiff would discontinue its application for said injunction pendente lite and that the action would be discontinued against the defendant, without costs, and that the sum of $1,000, as aforesaid, was to be considered as an additional advance royalty on the "Romance of the Underworld" production received by plaintiff for the advance royalties as agreed between them in the former agreement of November 14, 1913, and that the plaintiff would extend the time for the completion of said motion. picture "Escape" to the 15th day of April, 1914, and the time for the completion of the motion picture of the "Romance of the Underworld" to the 20th day of May, 1914; that, relying upon the assurance of the defendant's attorney that the $1,000 would be paid on said day, the 149 N.Y.S.-66 |