App. Div. 459]

First Department, July, 1921.

the contract of employment was of a maritime nature, the true test being the subject-matter of the contract, the nature and character of the work to be done. But as the maritime contracts relate to a subject of exclusive Federal jurisdiction a State statute cannot be read into the contract.

In torts the rule is different. Jurisdiction depends solely on the place where the tort is committed. "'Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance. (Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 60.) In that case the person injured was a stevedore, and the court said: "The libellant was injured on a ship, lying in navigable waters, and while he was engaged in the performance of a maritime service. We entertain no doubt that the service in loading and stowing a ship's cargo is of this character. Upon its proper performance depend in large measure the safe carrying of the cargo and the safety of the ship itself; and it is a service absolutely necessary to enable the ship to discharge its maritime duty. Formerly the work was done by the ship's crew; but, owing to the exigencies of increasing commerce and the demand for rapidity and special skill, it has become a specialized service devolving upon a class 'as clearly identified with maritime affairs as are the mariners.'" (Id. 61.) In the instant case the plaintiff was injured because the care required by law was not taken to protect him from injury in his place of work. It was a tort for which a right of action was given at common law. The injury was sustained upon a vessel upon navigable waters, while the plaintiff was engaged in a maritime service. It was, therefore, a maritime tort, to redress which he could pursue his remedy, either in rem against the vessel, or in personam against the owner, in courts having maritime jurisdiction.

The Appellate Division of the Second Department has stated in a per curiam opinion that the State Supreme Court cannot try an action for injuries sustained by reason of a maritime tort; that it is a matter peculiarly within the jurisdiction of the admiralty courts. (Johnson v. Standard Transportation Co., 188 App. Div. 934.) If this is a correct statement then the complaint in this case would have to be APP. DIV. - VOL. CXCVII. 30

1

First Department, July, 1921.

[Vol. 197 dismissed. The statement was, however, obiter dictum. The action had been tried and submitted to the jury as a commonlaw action for damages for negligence. The jury rendered a verdict for the defendant. On appeal the plaintiff desired to have the case sent back to be tried on an entirely different theory. The court very properly affirmed the judgment because of the plaintiff's election of remedies.

The question of the liability of the master for an injury sustained on shipboard by reason of an insufficient appliance was before this court. (Simpson v. Atlantic Coast Shipping Co., Inc., 191 App. Div. 844, 849.) The majority of the court assumed that the rule of damages would have been the same under the maritime law as that applied upon the trial and affirmed the judgment without determining the question. We can, therefore, consider the questions presented by this appeal unembarrassed by those cases.

*

Article 3, section 2, subdivision 1, of the Constitution of the United States extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction. Article 1, section 8, subdivision 18, gives Congress the power to make all laws necessary for the execution of the powers granted. By section 9 of the Judiciary Act of 1789 the District Courts of the United States were given "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." This grant was continued by the United States Revised Statutes, sections 563 and 711, and by the Judicial Code, sections 24 and 256. There have been numerous decisions construing this section. (Waring v. Clarke, 5 How. [U. S.] 441, 460; The Moses Taylor, 4 Wall. 411; The Hine v. Trevor, Id. 555; The Belfast, 7 id. 624; Leon v. Galceran, 11 id. 185; Steamboat Co. v. Chase, 16 id. 522; The Lottawanna, 21 id. 558; The Glide, 167 U. S. 606; Chelentis v. Luckenbach S. S. Co., 247 id. 372.) These cases settle the law to be that actions in rem, whether arising under the general maritime law or to enforce liens given by the United States or local State statutes, must be prosecuted in admiralty in the United States courts, while actions in personam, arising out of maritime contracts or torts, may be brought in admiralty or on the law side of

App. Div. 459]

First Department, July, 1921.

the United States court or in a State court having an appropriate common-law remedy. It is the right sanctioned by the maritime law that may be enforced by any court having jurisdiction of the parties or the res by the common-law remedies appropriate thereto. This clause gives a right of election of a forum for the enforcement of the maritime right or to remedy the maritime wrong and thereby allows election of the procedure, whereby the matter may be decided. But the complaining party has no right of election to determine whether the defendant's liability shall be measured by commonlaw standards rather than by those of the maritime law. (Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 383.) The maritime law as fixed and determined by the acts of Congress and the general maritime law as accepted by the Federal courts constitute part of the national law applicable to matters within the admiralty and maritime jurisdiction. The rights and liabilities arising out of maritime contracts or maritime torts, as recognized and declared by the maritime law, cannot be changed by State statute, nor by substitution of a commonlaw right or liability.

The instant case is an action for damage for personal injuries, for which there exists in this State a common-law remedy. Therefore, the action may be brought in our Supreme Court, the rules of practice, pleading and evidence of our courts apply, and the cause will be tried in conformity therewith; but the rules relating to contributory negligence, acts of fellow-servants, and the measure of recovery must be determined by the maritime law and not by the common law.

In maritime law contributory negligence of the injured party does not defeat a recovery but goes to a reduction, or more appropriately, an apportionment of the damage. The general rule of the common law exempting the master from liability for injury to a servant by a fellow-servant is not fully applied by the maritime law. And the rules applicable to the recovery, whether of full indemnity, or wages, maintenance and cure, must be taken into consideration, and the relief given according to the rules of maritime rather than common law.

If the case is retried it should be tried with reference to the rules of maritime law applicable to maritime torts.

First Department, July, 1921.

[Vol. 197

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

DOWLING, LAUGHLIN, MERRELL and GREENBAUM, JJ.,

concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

PEASE PIANO COMPANY, Respondent, v. GEORGE N. TAYLOR, Appellant.

First Department, July 1, 1921.

Pleadings motion for judgment on pleadings may be heard before referee appointed to hear and determine issue - court not deprived of jurisdiction to entertain motion when contract may be considered on motion- principal and agent action to recover excess of drawing account over and above commissions earned complaint not stating cause of action failure to allege express or implied agreement to repay excess of advances over commissions.

A motion for judgment on the pleadings upon the ground that the complaint does not state facts sufficient to constitute a cause of action can be heard before a referee appointed to hear and determine the issues, since such a referee takes the place of the court, and, in the trial of a cause, has substantially all the powers of a court.

His appointment, however, does not deprive the court of jurisdiction to entertain the motion, and where the plaintiff has delayed noticing the cause for a hearing before the referee for more than fourteen months, the defendant is entitled to a determination on his motion by the justice at Special Term.

A copy of a contract of employment annexed to plaintiff's bill of particulars can be considered on the motion where the plaintiff has stated the contract to be the instrument upon which the action is predicated and has alleged the legal effect thereof in the complaint.

A complaint in an action to recover from a salesman the difference between the amount paid him on a drawing account and the amount of commissions earned and credited to him on such account will be dismissed where it fails to set out an agreement, express or implied, to repay any excess of payments on the drawing account over commissions earned. APPEAL by the defendant, George N. Taylor, from an order of the Supreme Court, made at the New York Special Term

App. Div. 468]

First Department, July, 1921.

and entered in the office of the clerk of the county of New York on the 8th day of April, 1921, denying defendant's motion for judgment on the pleadings.

John Ewen of counsel [Wilder, Ewen & Patterson, attorneys], for the appellant.

Bruce Ellison of counsel [William B. Ellison with him on the brief; Ellison, Ellison & Fraser, attorneys], for the respondent.

PAGE, J.:

The motion was denied on the ground that it should have been made before the referee appointed to hear and determine the issue, and without prejudice to a renewal of the motion before the referee.

The referee was appointed by an order dated January 5, 1920. This motion was made on March 22, 1921. No notice of a hearing before the referee has been served.

The purpose of section 547 of the Code of Civil Procedure is to enable a litigant at any time after issue joined and before trial to move for judgment on the pleadings, as he could upon the trial. A motion for judgment upon the ground that the complaint does not state facts sufficient to constitute a cause of action could be made before the referee to hear and determine upon the hearing before him. Such "a referee takes the place of the court, and, in the trial of the cause, has substantially all the powers of a court at Special Term or circuit." (Schuyler v. Smith, 51 N. Y. 309, 317; Coffin v. Reynolds, 37 id. 640.) His appointment, however, does not deprive the court of jurisdiction to entertain the motion. If after a notice of hearing had been served, the party should serve notice of a motion before the court for judgment on the pleadings, the court might very properly decline to entertain the motion and remit the party to his motion before the referee, as the court would do if the motion were made after a cause was on the day calendar for trial. In such a case section 547 would be utilized for delay and not for a speedy determination of the case. In the case under consideration the plaintiff has delayed noticing the cause for a hearing