"If offer is accepted, possession of said premises is to be given to me on delivery of deed on said June 1, 1912, at which time all taxes, inadjusted, to and including May 31, 1912." surance premiums, and water rates are to be

sprinkling, maintenance of streets and parks, | him, must be held to a strict interpretation of and cleaning of walks done pursuant to ordi- them, rather than plaintiffs, who merely acnances of the common council, and must be cepted them. If there is doubt as to the delivered to the city clerk on or before the 1st meaning of the words employed, the defendday of April in each year (section 188); the ant is responsible for it, as they were his common council, having acted upon the an- own. The language used was as follows: nual estimate (section 105), must meet on the 1st day of April in each year, or if that day be Sunday then on the next day following, for the purpose of confirming the annual tax rolls and levying the annual taxes, and must within five days confirm such tax to the amount set forth in the budget adopted by it on all the real and personal property in the city according to the statement and valuation of the same set forth in the annual tax rolls for the current year, and must levy and assess the water tax (sections 107, 108, 109). Assessments for local improvements appear in a separate assessment roll (section 191). All annual taxes, all local assessments, and all water rates assessed by the city, together with interest, fees, etc., are and remain until actually paid a lien upon the land, tenement, or real estate on which, or in respect to which, the same have been made from the time of the passage of the ordinance of the common council levying the same in the case of annual taxes, and from the time of the confirmation by the common council of the rolls in the case of local assessments and from the time the same becomes due in the case of water rents (section 199). The city treasurer must on the 1st day of May in each year proceed to collect taxes from the several persons named in the annual tax roll (sections 165, 166, 167, 168). Local assess-paying the same to June 1st, and defendant's ments, water rates, etc., added to the tax roll become a part of the annual tax (sections 172-176).

The tax rolls for county taxes, after equalization and correction of the same by the board of supervisors and insertion of the tax levied and assessed by that board, are required to be delivered to the county treasurer, with a warrant annexed to each roll, on or before January 15th in each year, and the tax is payable before April 15th (section 209). Under the city charter, the city tax for the year 1912, as well as other taxes, if unpaid, were liens upon the premises in question on May 9, 1912, when the contract between the parties was made. Under the first clause of the agreement above quoted the plaintiffs were to furnish a tax search showing the premises free and clear of all liens. That obligation required plaintiffs to remove the lien, not only of the city taxes for 1912, but of any additional unpaid tax by a payment thereof; otherwise, a tax search would fail to disclose the absence of liens for taxes on the property. Had the contract terminated with that clause, the payment of the city tax for 1912 would devolve on plaintiffs.

The defendant prepared the form of the contract and invited the plaintiffs to accept the same. The defendant, having chosen the words employed in the writing prepared by

Under the city charter, city taxes, local assessments, and water rates were liens upon the property. Defendant required all such liens to be discharged and shown to have been satisfied by a tax search. That general requirement was, however, followed by the particular clause quoted above, which so far as taxes were concerned was incompatible with the general requirement, and must be construed as an exception of some tax or taxes to be adjusted to and including May 31, 1912. The nature of the adjustment to be made must be determined from the language employed and the action of the parties in relation thereto. What was to be adjusted on May 31st? "All taxes, insurance premiums, and water rates." What adjustment was to be made of insurance premiums? The plaintiffs were privileged to assign the insurance of the three classes held by them to defendant, but there remained an unearned premium upon the policies. The defendant in the adjustment allowed plaintiffs the amount of the unearned premium from June 1, 1912. The water rates were adjusted by plaintiffs

assumption of same thereafter. I assume that defendant believed that it would be inequitable to require plaintiffs to pay water rates for the business block during the remainder of the year for the benefit of defendant. The parties adjusted the insurance premiums and water rates proportionately; the plaintiffs bearing the proportionate share down to the date of the transfer of title and the defendant assuming the same from that date forward. Defendant is presumed to be familiar with the provisions of the city charter, viz., that city taxes were assessed for the fiscal year 1912; that they were payable May 1st; that a city tax would not again be levied until early in the year 1913. De fendant was to occupy the premises for the remaining seven months of the year for which plaintiffs had paid the taxes. That the defendant should pay an allotted amount of the taxes during his occupancy of the premises would be equitable with the allotment made as to insurance premiums and water rates, which were apportioned on that basis. The words "taxes, insurance premiums, and water rates" were grouped together; "taxes" were to be adjusted; "insurance premiums" were to be adjusted; "water rates" were to be adjusted. Insurance premiums and water rates were adjusted by the parties by an apportionment of the same as

stated. Notwithstanding the defendant them, are, that the defendant, through a agreed to adjust taxes, he refused to do so. superintendent in charge, was engaged in Under the language of his proposition he intended to adjust taxes, and a reasonable interpretation of his language leads to the conclusion that he intended to adjust them in the same manner in which the other items were to be and were actually adjusted by apportionment, which results in holding him liable for a proportionate amount of the city tax.

The order and judgment of the Appellate Division should be reversed, and the judgment of the Trial Term affirmed, with costs to the appellants in the Appellate Division and this court.

HISCOCK, CHASE, CUDDEBACK, and POUND, JJ., concur. WILLARD BARTLETT, C. J., and CARDOZO, J., dissent. Ordered accordingly.

(217 N. Y. 542)

BIDWELL v. CUMMINGS. (Court of Appeals of New York. April 11, 1916.)

erecting a building at Fulton. A part of the main walls of the first story of the building had been completed, and consisted of 4 inches of brick on the outside, and 12 inches of tile on the inside, with an air space of 2 inches between the brick and tile. At the time the plaintiff received his injuries such walls were 9 or 10 feet high. There was a partition wall the same height and 4 inches thick erected parallel to and 15 feet inside of one of the main walls. Boards about seven-eighths inch thick and about 5 or 6 inches wide had been placed on top of and along the entire length of the brick part of such main wall. There was an open space in such main wall 40 inches wide where a door was to be placed, and a doorframe about 7 inches wide had been placed in the opening between the tile so that the top of the frame was flush with the top of the wall. One of the boards on the brick wall mentioned extended over the opening, and it was placed against the outside of such doorframe. The masons that had erected the main wall and partition had removed to another part of the building and had taken the scaffolding and planks that they had used with them. The plaintiff and another person who were employed by the defendant as carpenters were sent by the superintendent to place joist or timbers across from said main wall to said partition wall on which to support the floor for the second story of the building. No scaffolding was furnished for them. To place these joists the plaintiff was compelled to work on the main wall and his fellow workman on the partition wall, and the joists which were 12 inches wide and 2 inches thick, and long enough to reach across the opening and weighed about 150 pounds each, were handed up to them from the ground floor. The plaintiff and his fellow workman placed Action by Frank H. Bidwell against James these joists about 12 inches apart from cenC. Cummings. From a judgment of the Ap-ters, standing them on edge, and they were pellate Division (162 App. Div. 926, 147 N. Y. Supp. 1099), affirming a judgment of the Trial Term dismissing his complaint, plaintiff appeals. Reversed.

MASTER AND SERVANT 289(17)—QUESTIONS
FOR JURY-CONTRIBUTORY NEGLIGENCE.

Plaintiff, a carpenter, was working on an
18-inch brick and tile wall, 9 or 10 feet high.
In a space in the wall there was placed a door-
frame about 7 inches wide with its top flush
with the top of the wall. In placing joists and a
"header" for the door opening plaintiff, in shift-
ing his position, stepped back upon the board
laid across the opening, and it broke, and he
fell and was injured. Held, it was reversible
error to dismiss his complaint at the close of his
case, as it was for the jury to say whether the
plaintiff was guilty of contributory negligence.
[Ed. Note. For other cases, see Master and
Servant, Cent. Dig. § 1108; Dec. Dig.
289(17).]

Appeal from Supreme Court, Appellate Division, Fourth Department.

Thomas Woods, of Syracuse, for appellant. Jerome L Cheney, of Syracuse, for respondent.

CHASE, J. This action is brought to recover damages for personal injuries. A notice was served by the plaintiff as required by the Labor Law. Consolidated Laws, c. 31, § 201. At the trial the court at the close of the plaintiff's case granted a motion of the defendant for a nonsuit, and dismissed the plaintiff's complaint. The only question for our consideration is whether the testimony should have been submitted to the jury for it to determine the issues between the parties. The facts, as the jury could have found

levelled by them and fastened by temporary stays. The joists were thus placed until the door opening was reached. They were directed by the superintendent, who was present during all the time that the work herein described was being done, to put a "header" across inside of the doorframe and parallel with, and one inch from it. The header and the joists opposite the doorway had to be prepared with mortises and tenons to hold their own weight and that of the floor to be placed thereon opposite the opening for the door. The work of framing the header and such joists was performed on the ground floor. That work had been done, and the plaintiff and his fellow workman were engaged in placing such header and joists and had succeeded in inserting one of the tenons of the header into the joist on either side of the opening. It was necessary for the plain

For other cases see same topic and KEY-NUMBEP. in all Key-Numbered Digests and Indexes

of the defendant in furnishing such a scaffold and the contributory negligence of the plaintiff in inadvertently stepping upon the unsafe part would be questions of fact for the jury. In determining whether the plaintiff was guilty of contributory negligence, it

tiff to hold one end of the joists severally sufficiency of the scaffold and the negligence while inserting the tenons into the mortises prepared for them. After the tenons on two of the joists were inserted into the header and while the plaintiff was unsuccessfully endeavoring to insert the tenon of the third joist and of adjusting the header in accordance with instructions, his fellow workman is necessary to consider that the work that came around the outer wall to assist him and took hold of the joist, and the plaintiff, in shifting his position, stepped back upon the board laid across the opening in the brick wall, and it broke, and he fell to the ground, sustaining the injuries for which this action is brought. A part of plaintiff's testimony is as follows:

He further testified that at the time he stepped back he was thinking of his work and did not realize that the board was unsafe.

It was the duty of the defendant under the Labor Law to furnish such safe, suitable, and proper scaffolds as were reasonably necessary for the safety of the employés engaged in constructing the building. We think upon the evidence the jury could have found that a scaffold was reasonably necessary for the plaintiff's use in the work in which he was engaged, particularly as to that part of it in which it was necessary to put together with mortises and tenons the heavy pieces of timber as stated, and that it was unsafe for the

plaintiff to perform the work that he was required to do from the top of the wall, at the particular place where the accident occurred.

he was required to do made it necessary for him to face the inside of the building. He was required to bend over in such a position that he could take hold of and sustain a heavy weight at a level below that of his feet. He was necessarily working in an awkward and trying position. It was while working in such position that the accident occurred. He testified that he did not know that it was not intended that the board should be stepped upon.

We think that it was for the jury to say whether the plaintiff under all the circumstances described was guilty of contributory negligence. The judgment should be reversed, and a new trial granted, with costs to abide the event.

WILLARD BARTLETT, C. J., and COLLIN, HOGAN, CARDOZO, and SEABURY, JJ., concur. HISCOCK, J., not voting. Judgment reversed, etc.

(218 N. Y. 29)

FISH v. VANDERLIP. (Court of Appeals of New York. April 18, 1916.)

1. INSURANCE C24(7)—SEVERAL LIABILITY -ACTION-PARTIES.

Where a number of underwriters insured they bound themselves severally, and not jointa vessel by a contract expressly declaring that ly, for its performance, the insured could not maintain a single action against all the insurers to recover an aggregate amount of the policy.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1569, 1570; Dec. Dig. 624(7).j 2. JUDGMENT 675(1) - CONCLUSIVENESS —

The respondent asserts that 18 inches of wall is as safe as 18 inches of scaffold, and that the plaintiff would have fallen if he PARTIES PARTICIPATING IN DEFENSE. had stepped from an 18-inch scaffold as Where a party of underwriters insured a surely as he did in stepping from an 18-inch vessel by a contract making the liability of each wall. Admitting the correctness of this state- party several, and not joint, a judgment against ment the assumption is not in accord with the insured in his action against one of the insurers, in which the defendant and other insurthe facts as they were shown on the trial. ers openly participated in the defense and conEven upon the defendant's contention all that tributed to the expense thereof, was not a bar the plaintiff had to stand upon at the place to a subsequent action against the defendant, as he was not a party to, and could not properof the opening was the top of the 7-inch ly have been made a party in, the former action. doorframe. The board that was outside of [Ed. Note.-For other cases, see Judgment, and adjoining the doorframe was not, accord-Cent. Dig. §§ 1190, 1194; Dec. Dig. ing to the defendant's contention, intended 3. JUDGMENT 540-CONCLUSIVENESS-PARfor use to support in whole or in part the TIES-CONTROL OF SUIT. carpenters while they were engaged in placing the header and joists that were prepared to be fastened together. If a person had been placed on a scaffold that had but 7 inches of safe floor, with additional flooring confessedly unsafe, to hold the weight of a person, and such person was required on such scaffold to do work similar to that which the plaintiff was required to do, the

675(1).]

a plea in bar, must have been a determination A former adjudication, to be available as of the same issue between the same parties or their privies, though it is not always necessary, for the person sought to be bound should have but it is enough if he had a right to control been a party to the record in the former suit, the litigation and appeal from the judgment.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1079; Dec. Dig. 540.] Chase, Collin, and Pound, JJ., dissenting.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The court at Special Term held that the judgment in the former suit set up in this Action by J. Albert Fish against Frank A. separate defense was not res adjudicata and Vanderlip. From an order of the Appellate sustained the plaintiff's demurrer. The orDivision (170 App. Div. 780, 156 N. Y. Supp. der entered upon this decision was affirmed 38), affirming an order sustaining a demur- at the Appellate Division. That court has alrer to the fifth separate defense in the amend-lowed an appeal and certified the question ed answer, defendant, by permission, appeals whether the defense above set forth is suffion a certified question. Affirmed, and ques- cient in law upon the face thereof to contion certified answered in the negative. stitute a defense to the plaintiff's cause of action.

The action is brought to recover $150 upon a "United States Lloyds" policy of insurance covering the yacht Senta, which is alleged to have been destroyed by fire on October 25, 1910, while lying in the harbor of Edgartown, Mass. The defendant, together with WILLARD BARTLETT, C. J. (after stat99 other individual subscribers, signed the ing the facts as above). [1] The obligation insurance contract, each obligating himself assumed by the underwriters toward the to the payment of $150. The aggregate assured was a several liability. Not only amount of the insurance was $15,000, and was this expressly declared in the contract was effected through the subscriber's attor- of insurance, but the assumption of any neys in fact, Higgins & Cox, "by the under- joint liability was distinctly negatived theresigned firms and individuals, as separate un-in. It has been held that the insured under derwriters, each represented by the above at- such a contract cannot maintain a single actorneys." By the terms of the policy the tion against all the insurers to recover the subscribers bound "themselves severally and aggregate amount of the policy.. Straus v. not jointly, nor one for the other, * Hoadley, 23 App. Div. 360, 48 N. Y. Supp. 239.

York courts and that there is ample author- are examples:

Theller v. Hershey (C. C.)

ity to be found in federal cases for taking 89 Fed. 576; Lane v. Welds, 99 Fed. 286, 39 this desirable step in advance. The federal C. C. A. 528. decision which gives most support to the There are other cases, however, decided by position of the appellant is Greenwich Ins. the federal courts, where a contrary doctrine Co. v. Friedman Co., 142 Fed. 944, 74 C. C. seems to have been laid down, and in which A. 114, decided by the Circuit Court of Ap- it was held that where a party, to protect peals for the Sixth Circuit. In that case a some interest of his own, aids and contribstore belonging to the insured parties at utes to the expense of a suit, he does not Grand Rapids, Mich., had been destroyed by thereby become bound by the judgment in a fire, and a large loss was sustained. Some subsequent litigation where he is a party 30 insurance companies had issued policies and the same issues are involved. Helm v. covering the property destroyed. Payment Zarecor (D. C.) 213 Fed. 648, 654; Merchants' was refused by the companies upon the Coal Co. v. Fairmont Coal Co., 160 Fed. 769, ground that a substantial part of the loss 777, 88 C. C. A. 23. The cases holding otherwas occasioned by the fall of the building wise are all patent infringement cases, exprior to the fire. The assured recovered cept the Greenwich Insurance Company judgment against two of the companies in Case, supra, which does not appear to have actions where the issue thus raised was de- been since cited or followed. It is true that cided against the companies. These former an application for a writ of certiorari to judgments were set up by the assured as review the decision in that case was denied conclusive upon the liability of the Green- by the United States Supreme Court (200 U. wich Insurance Company, and the claim thus S. 621, 26 Sup. Ct. 758, 50 L. Ed. 624), but set up was sustained. The court's decision we may not assume from this action of that was based upon the finding of fact that the court that it approved of the decision sought Greenwich Insurance Company had for the to be reviewed. The federal Supreme Court protection of its own interests joined with the exercises its power of granting the writ of defendants in the other suits, and that the certiorari very sparingly, and only where said joinder was open and avowed and was the case is one of gravity or general imporwell known to the assured. The Circuit tance. Matter of Woods, 143 U. S. 202, 12 Court of Appeals, in sustaining the decision | of the lower court, rested its decision upon the rule announced in previous cases to the following effect:

"The doctrine is well settled that one who, for his own interest, joins in the defense of a suit to which he is not a party of record, is as much concluded by the judgment as if he had been a party thereto, provided his conduct in that respect was open and avowed, or otherwise well known to the opposite party."

The rule thus stated was quoted from Penfield v. Potts, 126 Fed. 475, 61 C. C. A. 371, which was one of several patent infringement suits in which several parties, who were charged as infringers of the same patent, had joined together in making defense. In one of such suits the complainant was defeated, and the judgment therein was held to be conclusive upon him in another suit against another alleged infringer. The court there, after stating the rule as above quoted, said:

"Thus the question in respect of the infringement of the third claim was in each of these two cases identical, and, if the appellants were privies with the Anderson Machine Company in such sense that they would have been concluded in each case, it must follow, from the mutuality of an estoppel, that the patentees, who were plaintiffs in both cases, would be also concluded, for an estoppel by judgment or decree must be mutual.'

Sup. Ct. 417, 36 L. Ed. 125; Forsyth v. Hammond, 166 U. S. 506, 17 Sup. Ct. 665, 41 L. Ed. 1095.

The general rule is that a former adjudication, to be available as a plea, must have been a previous determination of the same issues between the same parties or their privies. It is not always necessary, however, that the person sought to be bound should have been a party to the record in the previous suit. It is enough if he had the right to control the conduct of the litigation and appeal from the judgment. Such was the case of Castle v. Noyes, 14 N. Y. 329, 335. There it appeared that in a former action the defendant had sued the servant of the plaintiff's testator for the recovery of property belonging to the testator. The defendant was defeated in the former action, and the judgment therein was held conclusive. In that case Judge Comstock said:

"Upon these facts the parties are to be regarded as the same. It is by no means true that, in order to constitute an estoppel by judgment, the parties on the record must be the same. The term has a broader meaning. It includes the real and substantial parties who, although not upon the record, had a right to control the proceedings and appeal from the judgment."

Professor Greenleaf thus states the true ment proceed: principles upon which estoppels by judg

The court there in effect held that the defendant there had become privy to the de"The rules of law upon this subject are foundfendant in the former action by its conducted upon these evident principles or axioms that in joining in the defense of the former suit it is for the interest of the community that a with the knowledge of the plaintiff. Similar limit should be prescribed to litigation, and decisions have been rendered in other cases be brought twice to a final determination. Justhat the same cause of action ought not to in the federal courts, of which the following | tice requires that every cause be once fairly and