(217 N. Y. 549) REILLY V. STEINHART. (Court of Appeals of New York. April 11, 1916.) 1. VENDOR AND PURCHASER 2-CONTRACTS -VALIDITY-WHAT LAW GOVERNS. Where plaintiff, by an agreement in writing made in Cuba, gave defendant an option to buy a concession for the construction of a railroad in Cuba, the existence of the contract must be determined by the Cuban law. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 2; Dec. Dig. 2.] 2. VENDOR AND PURCHASER 301 TRACTS-ACTION FOR BREACH-WHAT LAW GOVERNS. The law of New York governs the remedy. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 844; Dec. Dig. 301.] 3. VENDOR AND PURCHASER 2-CONTRACTS -ACTIONS FOR BREACH-WHAT LAW GovERNS "PUBLIC DOCUMENT"-"PROTOCOL IZE. Of the concession and for the property that [1, 2] At Trial Term the plaintiff had a verdict in his favor. The Appellate Division reversed the judgment and dismissed the comCON-plaint. The order shows that the reversal was on the single ground that, under the law of Cuba, a valid contract had not been made. That the contract was good if tested by our law is undoubted. The effect of the Cuban law is the sole question before us. The trouble with this option is said to be that it was not made a public document. A public document under the Cuban Civil Code is one "authenticated by a notary or by a competent public official with the formalities required by law." A contract which has been thus authenticated is said to have been "protocolized." Every contract which is intended to create, transmit, modify, or extinguish property rights in real property must be expressed in a public instrument. Every assignment of rights "arising from an act contained in a public instrument" must be expressed in like form. If those requirements mean that until the instrument is protocolized, a contract does not exist, the plaintiff's right of action fails. The existence of a contract must be determined by the Cuban law. Civ. Code Cuba, art. 1280, providing that contracts affecting rights in real property must be expressed in a "public document," described as a document authenticated by a notary or other competent official, called "protocolizing" the instrument, in view of article 1279, providing that contracting parties may compel each other to comply with special formalities, does not affect the existence of the contract, but provides a rule of evidence, and as such does not bind the New York court. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 2; Dec. Dig. m2. For other definitions, see Words and Phrases, First and Second Series, Public Document.] 4. VENDOR AND PURCHASER 2-CONTRACTS -VALIDITY-WHAT LAW GOVERNS. Where a written option executed in Cuba, by which the plaintiff agreed to convey all rights in a railroad concession in Cuba, was a valid contract under the Cuban law, but unenforceable until "protocolized," since the law of New York follows the law of Cuba in recognition of the contract, but prescribes its own remedy and pursues its own procedure, the contract is enforceable. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 2; Dec. Dig. 2.] Appeal from Supreme Court, Appellate Division, First Department. Action by Hugh J. Reilly against Frank Steinhart. From a judgment of the Appellate Division (161 App. Div. 242, 146 N. Y. Supp. 534), dismissing the complaint and reversing a judgment for the plaintiff, the plaintiff appeals. Reversed. William C. Rosenberg and Charles Gross man, both of New York City, for appellant. Morgan J. O'Brien, of New York City, for respondent. CARDOZO, J. The plaintiff gave the defendant an option to buy a concession which had been granted to the plaintiff for the construction of a railroad in Cuba, as well as all the lands, rights, bonds, and stocks of the company organized to construct the road. The agreement is in writing, and was made in Cuba. The option was given on January 22, 1907. It was to hold good till April 22, 1907. The price to be paid for Cuba R. R. Co. v. Crosby, 222 U. S. 473, 478, 32 Sup. Ct. 132, 56 L. Ed. 274, 38 L. R. A. (N. S.) 40; Union Nat. Bank of Chicago v. Chapman, 169 N. Y. 538, 62 N. E. 672, 57 L. R. A. 513, 88 Am. St. Rep. 614. If the meaning is that a contract exists, but that until made a public instrument, a remedy in the courts of Cuba is withheld, the plaintiff must prevail. The law that governs the remedy is the law of New York. In construing the Cuban law we must be guided by the evidence in this record, and, thus guided, we think that the failure to authenticate the option as a public instrument affects, not the substance of the contract, but the remedy for its enforcement. We are told by the Cuban Civil Code that: "A contract exists from the moment one or more persons consent to bind himself or themselves, with regard to another or others, to give something or to render some service' (article 1254); that "contracts are perfected by mere consent, and from that time they are binding, not only with regard to the fulfillment of what has been expressly stipulated, but also with regard to all the consequences which, according to their character, are in accordance with good faith, use and law" (article 1258); that "consent is shown by the concurrence of the offer and acceptance of the thing and the cause which are to constitute the contract" (article 1262); and that "contracts, shall be binding, whatever may be the form in which For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes they may have been executed, provided the essential conditions required for their validity exist" (article 1278). The article which enumerates the contracts that must appear in a public instrument is article 1280; but immediately preceding it, provision is made by article 1279 that: "Should the law require the execution of an instrument or other special formality in order to make the obligations of a contract binding, the contracting parties may compel each other to comply with said formalities from the moment in which consent and the other requirements necessary for their validity have taken place." The meaning of these provisions seems plain; but it is made still plainer by the testimony of an expert witness called by the defendant. His testimony is that an action for the specific performance of this contract could not, while it remained in its present form, be maintained in the Cuban courts. But if the defendant, after being cited to appear before a notary, refused to convert the contract into a public instrument, the plaintiff could maintain an action to compel him to authenticate it. Unless sufficient cause for refusal was shown, the execution of the contract as a public instrument would be decreed. No reason why its execution as such an instrument should be refused was apparent, according to the witness, on the face of the option. Every element of a valid contract was disclosed in the writing. All that was lacking was a formality which the courts of Cuba had jurisdiction to supply. [3] It seems obvious that the informality affects the remedy alone. The contract, though informal, exists. The jurisdiction of the courts to convert it into a public instrument is proof of its existence. Courts do not create contracts; they do not compel men to contract. To say, therefore, that this contract might be protocolized against the defendant's protest is to deny that it is void. The requirement that it be protocolized is thus seen to be a rule of evidence. As such, it does not bind our courts. Bristowe v. Sequeville, 5 Exch. 275; Emery v. Burbank, 163 Mass. 326, 327, 39 N. E. 1026, 28 L. R. A. 57, 47 Am. St. Rep. 456; Dicey, Confl. of Laws (2d Ed.) 710; Wharton, Confl. of Laws (3d Ed.) § 688. The rule is not changed because the contract has relation to real estate. Polson v. Stewart, 167 Mass. 211, 45 N. E. 737, 36 L. R. A. 771, 57 Am. St. Rep. 452; Clement v. Willett, 105 Minn. 267, 117 N. W. 491, 17 L. R. A. (N. S.) 1094, 127 Am. St. Rep. 562, 15 Ann. Cas. 1053; Klinck v. Price, 4 W. Va. 4, 6 Am. Rep. 268. There is no attempt to give effect to it as a conveyance. The defendant's sole obligation is to pay a sum of money. If the obligation exists, the evidence that will establish its existence is to be determined by our law. The defendant argues that the law of Cuba is similar in effect to our own statute of frauds. But the analogy is hardly helpful. Whether the statute of frauds "is addressed to the necessary constituent elements of the contract on the one hand, or to the evidence by which it shall be 'proved on the other" (Emery v. Burbank, supra), has been debated often and with varying conclusions (Wharton, Conf. L. [3d Ed.] 690a et seq.). There is support for the view that it declares a rule of evidence and is part of the lex fori. Leroux v. Brown, 12 C. B. 801; Crane v. Powell, 139 N. Y. 379, 384, 34 N. E. 911; Matthews v. Matthews, 154 N. Y. 288, 48 N. E. 531; Pritchard v. Norton, 106 U. S. 124, 134, 1 Sup. Ct. 102, 27 L. Ed. 104. A distinction is drawn between provisions which require the "contract" to be in writing and those which require "a note or memorandum" of the contract. Wigmore on Ev. § 2454. Perhaps there may be other distinctions (Marie v. Garrison, 13 Abb. [N. C.] 210, 250; Third Nat. Bank v. Steel, 129 Mich. 434, 88 N. W. 1050, 64 L. R. A. 119; Whart. Confl. of Laws, supra), but that is a controverted question (Townsend v. Hargraves, 118 Mass. 325, 335; Wilson v. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680; Dicey, Confl. of Laws, 711 note), and we need not go into it now. The line of division between the statute of frauds and the Cuban statute is a plain one, even though, to some extent, the effect of each may be the same. There is no remedy known to our law by which parties to an oral contract, which, under the statute of frauds, ought to be in writing, may be compelled to put it in writing, and thus satisfy the statute. Of course, we exclude cases where equity grants relief on the ground of fraud or part performance. Under the Cuban statute it is not the public instrument, but the contract back of it, that controls. The public instrument does not create the right. It registers an existing right. If either party refuses to make the registry complete, the law steps in and compels him to act. It is true that in resistance to a suit to protocolize the contract, he may show that for fraud or other cause the contract ought not to be enforced. Those defenses, however, would be equally available if the contract were one that did not need to be protocolized. They are equally available to the defendant when sued in our courts. [4] The situation may be summed up in a sentence: The law of Cuba recognizes the contract as valid, but prescribes a double remedy. The law of New York follows the law of Cuba in recognition of the contract, but prescribes its own remedy, and pursues its own procedure. We are unable for these reasons to concur in the conclusion of the Appellate Division that under the law of Cuba a valid contract was not created. In return for a promised payment, the plaintiff gave the defendant the right to buy a railroad. He became subject to an obligation, which the defendant could have enforced. If he had refused to fulfill his contract on the ground that it was not protocolized, the defendant could have made him protocolize it. The contract would have been enforceable at the instance of the defendant, | City of New York in favor of the defendand it is enforceable against him. ant, plaintiffs, by permission, appeal. Affirmed. The judgment should be reversed, with costs to the appellant in this court, and the case remitted to the Appellate Division to pass upon those questions of fact which have not yet been considered. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, and SEABURY, JJ., concur. Judgment accordingly. (217 N. Y. 711) FOX et al. v. PROCTOR. (Court of Appeals of New York. 1916.) April 11, APPEAL AND ERROR 1094(3) — MUNICIPAL In an action for goods sold and delivered, where the Municipal Court judgment for the defendant after hearing the evidence was unanimously affirmed, it imported that there was sufficient evidence to sustain the decision of the trial court that there was no sale, and prolibited the Court of Appeals from inquiring into the sufficiency of the proof to establish the alleged sale, and the judgment will be affirmed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4341, 4342, 4344-4348; Dec. Dig. 1094(3).] Wm. C. Rosenberg, of New York City, for appellants. Millard F. Tompkins, of New York City, for respondent. PER CURIAM. This appeal comes to this court by permission of the Appellate Division, which has affirmed a determination of the Appellate Term, which had affirmed a judgment of the Municipal Court of the City of New York in favor of the defendant in an action for goods sold and delivered. The pleadings were oral. The plaintiff claimed for goods sold and delivered. The defendant interposed a general denial. The Municipal Court, after hearing evidence for both parties, rendered judgment for the defendant. The affirmance of this judgment being unanimous, it imports that there was sufficient evidence to sustain the decision of the trial court that there was no sale. The unanimous affirmance rule prohibits us from inquiring into the sufliciency of the proof to establish the alleged sale, which is the only question argued by counsel or discussed by the court below. For this reason, and without passing upon that question, the judgment must be affirm Appeal from Supreme Court, Appellate Di-ed, with costs. vision, First Department. Action by Hugh L. Fox and others against WILLARD BARTLETT, C. J., and CHASE, Frederick F. Proctor. From a judgment of COLLIN, CUDDEBACK, CARDOZO, and the Appellate Division (160 App. Div. 712, POUND, JJ., concur. SEABURY, J., not sit145 N. Y. Supp. 709), affirming a determina- ting. tion of the Appellate Term, which affirmed a judgment of the Municipal Court in the Judgment affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (217 N. Y. 593) Appeal from Supreme Court, Appellate MAUTSEWICH v. UNITED STATES GYP- Division, First Department. DUTY-SAFE PLACE TO WORK. The master's common-law duty to his servant is to provide a reasonably safe place for him to work, including the duty of reasonable inspection of the place and of the appliances for the work. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 235; Dec. Dig. 124 (1).] UTE. The Legislature, by directing the commissioner of labor, by Labor Law (Consol. Laws, c. 31) §§ 119, 120, as amended by Laws 1913, c. 145, §§ 10, 11, to see that every necessary precaution is taken to insure the health and safety of employés in mines and quarries, and to prescribe rules and regulations therefor, intended to supplement the common-law rules and to further insure the safety of those engaged in such dangerous employments; and such statutory directions are ordinarily compulsory, requiring the employer not only to adopt the rules of the commissioner, but to enforce them. Action by John Mautsewich against the United States Gypsum Company. From a judgment of the Appellate Division (162 App. Div. 907, 146 N. Y. Supp. 1100), affirming a judgment of the New York Trial Term, defendant appeals. Affirmed. E. Clyde Sherwood, of New York City, for appellant. Martin T. Manton, of New York City, for respondent. CHASE, J. This action is brought by an 2. MASTER AND SERVANT 146 MASTER'S employé against an employer to recover damDUTY-SAFE PLACE TO WORK-MINES-STAT ages for personal injuries resulting from an explosion. The accident occurred in 1908. The complaint does not allege that notice was served as provided by section 2, ch. 600, of the Laws of 1902 (now section 201, ch. 31, of the Consolidated Laws, known as the "Labor Law"). The defendant's liability rests upon alleged violations of the rules of the common law and of rules prescribed by the commissioner of labor. labor is required to "see that every necessary precaution is taken to insure the safety and health of employés employed in the mines and quarries and in the construction of tunnels of the state and shall prescribe rules and regulations therefor." Laws 1907, ch. 399, § 120, now sections 119 and 120, ch. 31, of the Consolidated Laws, as amended by Laws 1913C, 145, §§ 10, 11. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 284; Dec. Dig. 146.] 3. MASTER AND SERVANT 103(1)-DUTY OF INSPECTION-DELEGATION. A duty of inspection resting upon an employer, cannot be delegated so as to relieve him from the consequences of a failure to inspect, or of an inadequate inspection, and if a servant performs such duty, he is the master's alter ego, and for his negligent performance the master is liable. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. 103 (1).] The commissioner of In pursuance of said statute the commissioner of labor made rules, among which are the following: "5. After blasting no one except the blaster or blasters shall be allowed in the part of the mine where such blast has been fired, until the blaster has made personal examination, and pronounced all safe." 4 MASTER AND SERVANT 124(6) SAFE PLACE TO WORK-SUFFICIENCY OF INSPEC-nated by him shall examine daily all mine appli"7. The mine superintendent or person desig TION. If a defective and dangerous condition of a place of work or of an appliance could have been discovered by a reasonable inspection, an inadequate and insufficient inspection, failing to discover such defect or danger, will not relieve an employer from liability arising there from. arces and see that they are in safe condition." The plaintiff was a driller. His work was done with an electric drill. On the day of the accident he was directed, by the foreman of a shaft of the defendant's gypsum mine at Oakfield, to go to another part of the mine in the shaft, from that in which he had been working or had ever worked and there drill holes for use in blasting. The plaintiff asked the foreman what the condition of that 6. MASTER AND SERVANT 289(34)—QUES-room was, and the foreman said "all good TION FOR JURY-CONTRIBUTORY NEGLIGENCE. and safe, but got a little water." The plainEvidence in such action held not to show tiff went to that part of the mine as directed that plaintiff was negligent as a matter of law. and commenced drilling. Shortly thereafter [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1126; Dec. Dig. 289 the foreman came to the place where he was (34).] working. The plaintiff's testimony as to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes what was then said and as to what then oc- Pugh & Co., 122 App. Div. 586, 107 N. Y. curred is as follows: "He came to my room and asked where my lines were and I said, 'I don't know,' I said just, 'I come this afternoon to this room.' He said, 'Come here, and I show it.' I went to him and he showed the lines to me, and after I was through with those lines, he asked me how many holes I had. I said, 'I got four to left side of that room.' He said, 'You turn your machine to the right side and put in four more.' I said, 'I see one hole in top.' He said, "That hole was all right,' and after I was-He said, 'You get through those four holes you take your drill and put into that hole and measure, and when you get through from measuring it put two holes right close to the pillar.' And I said, 'You examine that hole?' He said, 'Yes.' I said, "There be blasting in that room?" He said, 'No.' Then he went away from mewent into some other place. I was to finish those four holes that he told me; I knew that. I measured that hole and got an explosion." He further testified that the foreman told him "to find out which direction this hole ran." The hole referred to was in the side of the room near a low roof. The holes that the plaintiff was required to drill were to be six or seven feet deep, and the place and direction of some of such holes were necessarily, to some extent, affected by the hole that was there when he entered the room and the depth and direction of such hole. It is al so apparent that it was important to deter mine whether such hole was filled with explosive. Such fact could have been ascertained by reasonable inspection. [1, 2] The common-law duty of an employer toward his employé is to provide a reasonably safe place for him to work. That duty includes the duty of reasonable inspection of the place and of the appliances for the work. The Legislature, by directing the commissioner of labor to see that every necessary precaution is taken to insure the safety and health of employés employed in the mines and quarries and in the construction of tunnels of the state and to prescribe rules and regulations therefor, intended to supplement the common-law rules relating thereto, and thereby further to insure the safety of those employed in such dangerous employments. Statutory directions in regard to machinery and appliances and the manner in which work shall be performed made in the interests of human life and to insure the safety and health of employés are ordinarily compulsory. It is the duty of employers, not only to adopt the rules of the commissioner of labor made pursuant to statute, but to enforce them. If the rules of the commissioner of labor quoted, after written notice by him, are not obeyed, the employer is liable criminally. Penal Laws (Consol. Laws, c. 40), § 1270; Labor Law, § 134. The employer is also subject in case of an injury resulting from their disobedience to the ordinary consequences arising from negligence. Scott v. International Paper Co., 204 N. Y. 49, 97 N. E. 413; Marino v. Lehmaier, 173 N. Y. 530, 66 N. E. 572, 61 L. R. A. 811; Racine v. Morris, 201 N. Y. 240, 94 N. E. 864; Shields v. Supp. 604; Armenti v. Brooklyn Union Gas Co., 157 App. Div. 276, 142 N. Y. Supp. 420; Caddy v. Interborough Rapid Transit Co., 195 N. Y. 415, 88 N. E. 747, 30 L. R. A. (N. S.) 30. [3, 4] Where a duty of inspection rests upon a person or corporation it cannot be delegated so as to relieve such person or corporation from the consequences of a failure to inspect or of an inadequate inspection. Smith v. N. Y., Chic. & St. L. R. R. Co., 86 App. Div. 188, 83 N. Y. Supp. 259, affirmed 178 N. Y. 635, 71 N. E. 1139. If a defective and dangerous condition of a place of employment or of an appliance could have been discovered by a reasonable inspection, an inadequate and insufficient inspection which failed to discover such defect or danger will not relieve an employer from liability arising out of such defect or danger. Smith v. N. Y., Chic. & St. L. R. R. Co., supra. It has become one of the axioms of negli gence law that the duty of inspection is the master's duty, and one that cannot be delegated so as to relieve the master from responsibility. If a servant performs this duty he is the alter ego of the master, and for any negligence in his discharge of that duty the latter is liable. Koehler v. N. Y. Steam Co., 183 N. Y. 1, 75 N. E. 538, and cases cited; Simone v. Kirk, 173 N. Y. 7, 65 N. E. 739; Mahoney v. Cayuga Lake Cement Co., 208 N. Y. 164, 101 N. E. 802. [5, 6] The plaintiff was injured by an explosion of dynamite in a hole which had been drilled and charged with the explosive prior to the time when he was placed at work in the room where the explosion occurred. There are serious disputes of fact in this case, but the jury could have found that the plaintiff was expressly directed by the foreman to measure the depth of the hole by placing his drill therein. The testimony shows that the blaster and the foreman were each charged by the defendant with the duty of inspecting the places in the mine where the men worked before the entry of the workmen therein. The foreman testified that he did inspect the room where the explosion occurred on the morning of the day of the accident. He further testified that he saw the hole, and that it was filled with explosives, and that he warned the plaintiff against it. If we take the plaintiff's testimony in regard to his instructions as true, the conclusion is justifiable that the foreman did not see the explosives in the hole, but assumed that it was free from explosives; otherwise it is inconceivable that he would have directed the plaintiff to put his steel drill therein for the purpose of ascertaining its depth and the direction in which it extended. The jury could have further found that such assumption was accepted without any, or at least without an adequate inspection, to ascertain the |