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(219 N.Y.S.)

belief that the company had actually expressed an intention to cancel the same, and that it would carry out such intention even though not legally obliged to do so. It might be observed that, after the decision in the Fowler-Curtis Case, the plaintiff there amended its complaint by omitting the allegation that defendant had stated he had left the letter of acceptance of his desk. On appeal to the Appellate Division this amended pleading was held by the unanimous court to state a good cause of action (Fowler-Curtis Co. v. Dean, 206 App. Div. 785, 200 N. Y. S. 923), which was sustained in the Court of Appeals (Fowler-Curtis Co. v. Dean, 239 N. Y. 538, 147 N. E. 185).

[2] The question of the measure of damages is not now properly before the court, and it is sufficient that some damages are alleged. Winter v. American Aniline Products, 236 N. Y. 199, 140 N. E. 561. The motion to dismiss the amended complaint is therefore denied.

(219 App. Div. 152)

BERNSTEIN v. HOFFMAN et al.

(Supreme Court, Appellate Division, Third Department. January 5, 1927.) 1. Master and servant 405(6)-Award for partial permanent loss of use of arm held not sustained by evidence.

Where issue whether permanent loss of use of claimant's arm was due solely or to any extent to the accident was raised by proofs, and State Industrial Board attributed condition solely to accident, without proof to sustain finding, and contrary to undisputed medical evidence, award for partial permanent loss of use of arm will be reversed, as not sustained by evidence.

2. Master and servant 385(12)-Proportionate addition to arm loss because of condition of thumb is unauthorized, but separate awards should be made (Workmen's Compensation Law, § 15, subd. 3u).

Under Workmen's Compensation Law, § 15, subd. 3u, separate schedule awards must be made for partial loss of use of arm and of thumb, and proportionate addition to arm loss because of condition of thumb is not justified.

3. Master and servant 385(12)—Award for partial loss of arm cannot be made, to begin at conclusion of award for partial loss of thumb (Workmen's Compensation Law, § 15, subd. 3u).

Under Workmen's Compensation Law, § 15, subd. 3u, one schedule award of partial loss of use of arm cannot be made to begin at conclusion of another schedule award for partial loss of use of thumb.

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

Appeal from State Industrial Board.

Proceeding under the Workmen's Compensation Law by Tobias Bernstein, claimant, opposed by Simon Hoffman, employer, and another. From an award of the State Industrial Board, the employer and another appeal. Reversed, and claim remitted.

Argued before COCHRANE, P. J., and VAN KIRK, HINMAN, MCCANN, and DAVIS, JJ.

Alfred W. Andrews, of New York City (Phillip J. O'Brien, of Yonkers, of counsel), for appellants.

Albert Ottinger, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for State Industrial Board.

HINMAN, J. The State Industrial Board has made an award for the permanent loss of use of 45 per cent. of the left arm, based upon the following finding:

"On July 24, 1924, while the said Tobias Bernstein was engaged in the regular course of his employment, and while working for his employer at his employer's plant, and while putting a partition in a wall thereat, he fell down through open trapdoor into cellar, and he thereupon sustained injuries in the nature of laceration and contusion over the forehead, laceration over the right eyelid, as well as contusion and sprain of the left shoulder and left arm, as well as a cortical fracture of the terminal phalanx of the left thumb, and which injuries to claimant's left arm have resulted in some defect in internal and external rotation, and which injuries to left thumb have resulted in a slight defect in full flexion at the metacarpal phalangeal joint of the thumb, and which injuries have also resulted in slight atrophy of the left shoulder, and which injuries to the left arm, including the thumb condition, are equivalent to the permanent loss of use of 45 per cent. of the left arm; the permanent loss of use of 45 per cent. of the left arm being naturally and unavoidably the result of the injuries which claimant sustained on July 24, 1924."

[1] There is uncontradicted medical proof in the record to the effect that X-rays of the left shoulder show "considerable ankylosis before the accident." The board has apparently accepted the estimate of a 45 per cent. loss of use of the arm, made by one of its staff physicians in a verified report, but has ignored a statement made by the same physician in a subsequent verified report, which seems to confirm. the testimony of appellant's physician, to the effect that the X-rays indicate chronic osteoarthritic changes which were present at the time of the accident. The issue whether the permanent loss of use as found by the board was due solely or to any extent to the accident was raised by the proofs before it, and the board has attributed the present defect solely to the accident without any proof, medical or otherwise, to sustain its finding, and contrary to the undisputed medical proofs. The testimony of Dr. Hoy, another physician on the medical staff of the board, is proof only of a present loss of use of between one-third

(219 N.Y.S.)

and one-half of the arm, "taking the condition of the thumb and shoulder into consideration." He gave no testimony as to causal relationship of the present condition of the arm to the accident. The award should therefore be reversed, on the ground that there is no evidence to sustain the finding that the present condition is the result of the accidental injury.

[2] Another defect in the award, which should be brought to the attention of the board, relates to that portion of its finding which states that the "injuries to the left arm including the thumb condition are equivalent to the permanent loss of use of 45 per cent. of the left Obviously the board has determined the percentage of loss of use of the arm by combining the injury to the shoulder and the injury to the thumb, and has made an award on the basis of the proportionate loss of use of both, but has denominated it as a schedule award for proportionate loss of use of the arm. The theory apparently was that the thumb was a part of the arm. The law, however, makes a distinction between the two members, and allows a separate schedule award for each or for partial loss of use of each. Any proportionate addition to the arm loss in this case by reason of the thumb condition was not justified under the statutory classification. A workman may have perfect use of the hand and all of its members, even though he has suffered a loss of function of the arm at the shoulder. If he suffers a multiple injury, consisting of a partial loss of use of the hand as well as of the arm, the law seems to require that compensation be awarded under subdivision 3u of section 15 of the Workmen's Compensation Law, relating to "other cases" not specifically covered by the separate schedule provisions.

[3] One schedule award for partial loss of use of the arm cannot be made to begin at the conclusion of another schedule award for partial loss of use of the thumb, within the reasoning laid down in Matter of Marhoffer v. Marhoffer, 220 N. Y. 543, 116 N. E. 379. It seems to be the law of this state, as interpreted in that decision, that schedule awards are not made because a claimant has been deprived of a physical member as such, but because he has had an "impairment of earning capacity" through the loss of a member, the length of the disability being arbitrarily fixed by the Legislature. It was said in that case:

"Nothing in our law

permits the commission to begin the peri

od of disability at any later date than the fifteenth day of disability.'

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So the theory of our law seems to be that in the case of an injury to two members, such as the thumb and the arm, the disability to work arising from the loss of use of one is during the same period as the disability to work caused by the loss of use of the other. We so held

in Feeney v. Gorman, 218 App. Div. 796,, 218 N. Y. S. 741 (decided at the November, 1926, term), in which we affirmed an award without opinion. In that case the claimant fractured the bones of both feet in a fall from a ladder. The board found a permanent partial disability in each foot. The appellant argued that, as the loss was confined to the two feet, there should have been an award on the basis of the schedule for proportionate loss of use of each foot. We decided that the award was properly made on a basis of reduced earning capacity under subdivision 3u of section 15 of the Workmen's Compensation Law. A similar situation arose in Crockett v. F. T. Coppins & Sons, 202 App. Div. 535, 195 N. Y. S. 153, where the claimant lost the use of his right foot and part of the use of his left foot. We held that subdivision 3u of said section 15 properly included that

case.

Our conclusion is that the claimant's earning capacity should be fixed and an award should be made under subdivision 3u of said section 15, unless, after further hearing, the board should find that the disability is confined simply to one of the two members in question, in which event a schedule award may be made for proportionate loss of use of that member.

The award should be reversed and the claim remitted, with costs against the State Industrial Board to abide the event. All concur.

(218 App. Div. 646)

ROSE V. JASIMA REALTY CORPORATION.

(Supreme Court, Appellate Division, Second Department. December 23,

1926.)

1. Covenants 79(3)—Restrictions carrying out general scheme for uniform development may be enforced by one grantee against another.

Where owner imposes restrictions on lots in accordance with general scheme for uniform development of tract, restrictions may be enforced by one grantee against other grantees.

2. Covenants 79(3)-Restrictions not incorporated in conveyance may be enforced against purchaser having notice of general scheme of development.

Where lot subject to restrictions carrying out general scheme of uniform development is sold to one having notice of general plan, restrictions may be enforced against him, irrespective of whether they were incorporated in his conveyance, or whether he and person seeking enforcement derived title from same grantor.

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

3. Covenants

(219 N.Y.S.)

69(1)—Restrictive covenants, which grantor may cancel at

will, are for grantor's exclusive benefit.

Restrictive covenants in deed, reserving to grantor right to grant right to use lots for all purposes, held for grantor's exclusive benefit, and not for benefit of other grantees.

4. Covenants 77-Grantor alone can enforce restrictions for sole benefit of his remaining land against covenantor or his successors in title.

Where restrictions are for sole benefit of land retained by grantor, grantor alone has power of enforcement against original covenantor and his successors in title chargeable with notice, and grantees cannot enforce covenants one against another.

5. Covenants 49-Grantor, having exclusive power to enforce restrictions, has power to modify them.

Exclusive power in grantor to enforce restrictive covenants carries power to modify restrictions, so long as grantor retains part of tract. 6. Covenants 103(3)-Restrictive covenant for grantor's sole benefit, prohibiting use of property for offensive purposes, may be waived by grantor.

Restrictive covenant, prohibiting use of property for any offensive purposes, may be waived by grantor under provision reserving to grantor right to grant right to use lots for all purposes.

7. Nuisance~3(5)—Public market is not inherently "nuisance."

Public market is not inherently a nuisance, though selling of diseased meat therein, or anywhere else, is a "nuisance."

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Nuisance.]

8. Submission of controversy 17-Court cannot find by inference facts in addition to those stipulated in submission of controversy (Civil Practice Act, § 546).

Submission of controversy under Civil Practice Act, § 546, is limited to consideration of questions of law arising on agreed state of facts, and court cannot find by inference facts in addition to those stipulated by parties.

Submission of controversy between Jay Rose, plaintiff, and the Jasima Realty Corporation, defendant, on agreed statement of facts under Civil Practice Act, § 546. Judgment for plaintiff.

Argued before KELLY, P. J., and JAYCOX, MANNING, KAPPER, and LAZANSKY, JJ.

Joseph J. Schwartz, of Brooklyn, for plaintiff.

Bernard Gordon, of New York City, for defendant.

MANNING, J. The agreed statement of facts contains the following recitals:

That the plaintiff is the owner of lots 6 and 7 on a certain map entitled "Map of Beverly Square, Situated in Section 15 of the Borough

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

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