App. Div.]

Second Department, February, 1921.

rests solely upon the duty that a common carrier owes to its passenger. Whether the decision in the Elliott case follows the doctrine of the Loudoun case is another matter. The ground upon which the decision in the Elliott case is based, viz., that the doctrine of res ipsa loquitur is not applicable, is not hostile to the Loudoun case. The difficulty of reconciling these two cases is caused by the fact that the justice who wrote in the Elliott case assumed that the Loudoun case, in so far as it authorizes the presumption of negligence on the part of the carrier, rests solely on the doctrine of res ipsa loquitur, accurately defined. The opinion in the Loudoun case was written by the same eminent judge who subsequently wrote for the court in Griffen v. Manice, which did not in terms overrule the Loudoun case. In fact in Hardie v. Boland Co. (supra) the Loudoun case is quoted as still the law. The learned judge who wrote in the Loudoun case held that the doctrine of res ipsa loquitur did not apply, because when there are two agencies concerned in an accident, and the presumption of negligence might apply to either one, the one liable is not identified. But the presumption asserted in that case and charged the jury in the case at bar is a presumption which rests primarily upon the duty which a common carrier owes to its passenger, in connection with circumstances showing that the injury might have been occasioned by a failure in the performance of such duty. So in Patton v. Texas & Pacific Railway Co. (179 U. S. 663) Justice BREWER, speaking for the court, said: "In the case of a passenger the fact of an accident carries with it a presumption of negligence on the part of the carrier, a presumption which in the absence of some explanation or proof to the contrary is sufficient to sustain a verdict against him, for there is prima facie a breach of his contract to carry safely."

So long as the Loudoun case remains unquestioned by the Court of Appeals, I think it is our duty to approve a charge which is based upon the doctrine of that case and is applicable to a state of facts not essentially different.

The judgment and order should be affirmed, with costs.

JENKS, P. J., and RICH, J., concur; PUTNAM, J., concurs in separate opinion; KELLY, J., concurs with PUTNAM, J.

Second Department, February, 1921.

PUTNAM, J. (concurring):

[Vol. 195.

The phrase res ipsa loquitur does not make for distinctness. Though perhaps not so often misused as res gesta, the maxim that the thing itself speaks has lost its point, and frequently serves to blur the edges of accurate legal definition. As originally used it stated the effect and legal inference from a bare happening like objects falling into a street. (Mullen v. St. John, 57 N. Y. 567.) But this soon proved of little practical value in the case of a building going up under different contractors. (Wolf v. American Tract Society, 164 N. Y. 30.) So the import of this phrase was enlarged from the bare happening to take in as a proper setting some of the attending circumstances. (Griffen v. Manice, 166 N. Y. 188, 193.) The maxim thus comes to saying that with certain other circumstantial evidence a prima facie liability may arise; or, as we might say, res et cetera loquuntur. A contract duty obviously differs from the case of a pure tort. The apparent failure to carry safely a passenger naturally calls for an explanation. (Stokes v. Saltonstall, 13 Pet. 181; Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380.) This distinction is now well recognized. (See Cosulich v. Standard Oil Co., 122 N. Y. 118, 128, by PARKER, J.) "Excepting where contractual relations exist between the parties, as in the case of carriers of passengers and some others, negligence will not be presumed from the mere happening of the accident and a consequent injury." (Stearns v. Ontario Spinning Co., 184 Penn. St. 519, 523.) The court's charge rightly used the word "presumption," which meant that the street car company which was under the carrier's duty, was expected through its motorman to furnish an explanation, or at least to go forward with its proofs. This principle applies to a passenger on the running board of a street car. (Bamberg v. International Railway Co., 53 Misc. Rep. 403, 406.) The charge was, therefore, free from ground of exception, and I agree to affirm.

KELLY, J., concurs.

Judgment and order unanimously affirmed on reargument, with costs.

App. Div.]

First Department, February, 1921.

In the Matter of the Application of ANASTASIOS D. YEANNAKOPOULOS, Respondent, for an Order Appointing an Arbitrator and Directing an Arbitration to Proceed Pursuant to the Provisions of the Arbitration Law, in Accordance with the Provisions of a Certain Contract in Writing Dated April 26, 1920, Entered into between the Petitioner Herein and J. ARON & COMPANY, INC., a Domestic Corporation, Appellant.

First Department, February 4, 1921.

Arbitration — agreement to arbitrate controversies thereafter arising under contract need not be acknowledged — Arbitration Law, § 8, and Code of Civil Procedure, § 2366, construed and applied · petition and answer establish existence of controversy between parties appeal - failure to raise question below as to constitutionality of Arbitration Law.

The provisions of the Code of Civil Procedure mentioned in section 8 of the Arbitration Law, read in connection with section 2 of that law, show that the provisions in section 2366 of the Code of Civil Procedure requiring the instrument to be acknowledged apply exclusively to a submission entered into between the parties under the Code of Civil Procedure and not to a provision in a written contract to settle by arbitration a controversy thereafter arising between the parties to the contract. The provisions of section 8 of the Arbitration Law were obviously designed for the purpose of combining the provisions of the Code of Civil Procedure and making them applicable to an arbitration under a contract so far as they are 'practicable and consistent" with the provisions of the Arbitration Law, but the formalities prescribed by section 2366 of the Code of Civil Procedure are wholly inapplicable to an arbitration under a contract, for the reason that they would not be "practicable and consistent" under such an arbitration.

44

The petition and answer, on which the order directing an arbitration of the questions in dispute and appointing an arbitrator was based, show that there is a controversy between the parties arising out of a contract concededly entered into between the parties.

The failure of the appellant to raise the question of the constitutionality of the Arbitration Law, in the answering affidavit or at the Special Term, precludes him from raising that question on appeal.

APPEAL by J. Aron & Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, on the 21st day of December, 1920, granting the petition of

First Department, February, 1921.

[Vol. 195. Anastasios D. Yeannakopoulos, directing an arbitration and appointing an arbitrator under the arbitration clause in the contract between the parties, pursuant to the provisions of the Arbitration Law of this State (Consol. Laws, chap. 72; Laws of 1920, chap. 275).

Benjamin F. Norris of counsel [Bouvier & Beale, attorneys], for the appellant.

Robert H. Ewell of counsel [Merrill, Rogers & Terry, attorneys], for the respondent.

GREENBAUM, J.:

The petition upon which the order was granted alleges in detail the making of a contract between the parties dated April 26, 1920, under which the petitioner agreed to purchase from the appellant 100 tons of Java sugar, a copy of the contract being annexed to the petition; that one of the provisions of the contract was as follows: "Any dispute arising in the execution of this contract to be submitted to arbitration in New York." The petition further alleges that thereafter and on or about July 29, 1920, " said J. Aron & Company, Inc., obtained payment of $50,400, from [the] First National Bank of Boston, by reason of the credit established by the petitioner " as provided for in the contract between the parties; that said payment was obtained from J. Aron & Company, Inc., without presenting ocean documents or the dock receipt or delivery order as called for by the contract and the letter of credit; that the latter corporation placed in storage with the New York Dock Company of Brooklyn for the account of the petitioner 1,000 bags of sugar claiming that said sugar constituted the 100 tons of Java white sugar mentioned under the contract of April 26, 1920; that the sugar thus put in storage was not the sugar called for by said contract; that the petitioner "offered to return to said J. Aron & Company, Inc., the said sugar, and demanded" that the sum of $50,4C0 be repaid to the petitioner, and that thereafter the petitioner sold the 1,000 bags of sugar for the account of the appellant with the result that the petitioner was damaged in the sum of $30,129.82.

It is also alleged in the petition that thereafter the petitioner requested the appellant corporation to comply with the arbitration clause in the contract, which it refused to do.

App. Div.]

First Department, February, 1921.

It appears from the opinion of the learned justice who granted the order appealed from that the application of the petitioner was opposed on two grounds and indeed it was conceded in open court before us upon the argument of this appeal that these two grounds were the only ones urged and that the appellant did not at Special Term make any claim that the Arbitration Law under which the petitioner obtained its order was unconstitutional. The two points relied upon by the appellant were, first, that the agreement to arbitrate was not acknowledged, and, second, that the moving papers failed to show that there was any controversy existing which was properly the subject of an arbitration. As to the first of these grounds, the appellant relies upon section 2366 of the Code of Civil Procedure which provides that a submission under the Code may be made "by an instrument in writing, duly acknowledged or proved, and certified, in like manner as a deed to be recorded." It is argued that under section 8 of the Arbitration Law, the provisions of section 2366 are made applicable both to an arbitration clause in a written contract as well as to a submission to arbitrate under the Code. Section 8, however, provides that section 2366 and the other sections of the Code of Civil Procedure therein enumerated "so far as practicable and consistent with this chapter, shall apply to an arbitration agreement under this chapter."

A study of the various provisions of the Code mentioned in section 8 of the Arbitration Law, read in connection with section 2 of that law, clearly shows that the provisions in section 2366 of the Code requiring the instrument of submission to be acknowledged apply exclusively to a submission entered into between the parties under the Code of Civil Procedure.

Section 2 of the Arbitration Law contemplates two separate and distinct cases where arbitration may be enforced. The first applies to " a provision in a written contract to settle by arbitration a controversy thereafter arising between the parties to the contract," and the second to "a submission hereafter entered into of an existing controversy to arbitration pursuant to title eight of chapter seventeen of the Code of Civil Procedure." The provisions of section 8 of the Arbitration Law were obviously designed for the purpose of combining the arbitration provisions of the Code and making them appli