N. Y. 437), a mortgage case; Simson v. Brown (68 N. Y. 355), a case where a guarantor was held to promise for the obligor's benent, and in many other later cases. It is clear that these cases would be within the first exception, as there was an obligation existing between the third party and the promisee for the latter to perform the act called for by the promise. A strict application of the rule would take the very case of Lawrence v. Fox out of the class of decisions to which its doctrine applies, as in that case the promise was for the benefit of the promisor, being a way of discharging his debt. So that in introducing this qualification the courts are practically nullifying the decision. A third party attempts to sue on a promise, alleging that it calls for the performance of a duty owed to him by the promisee. True, says the court, but it was not made for your benefit; the parties contemplated benefiting the promisee. You cannot sue on it without showing a consideration on your part. The only thing in Lawrence v. Fox to suggest this is that there the third party was expressly mentioned, but the qualification goes much beyond that and says the benefit must primarily be for the third party. Another case arises where the third party shows that a benefit to him was contemplated by the parties to the contract. True, again says the court, but you were not entitled to the performance of this obligation from the promisee before the promise was made, therefore you can't sue. Thus almost every case can be defeated. This last attitude was taken in 1876 in Johnson v. Morgan (6 Daly, 336), where the defendant had promised third parties to purchase certain railroad bonds, the holders thereo to have an option to accept the terms agreed on in the contract. The plaintiff was a holder of the bonds, not a party to the contract, but could not recover on it. The same case with slightly different facts came up the next year, and the same doctrine was re-stated (68 N. Y. 495).

Now follow a great many cases applying these two distinctions, and the attitude of the courts change so that instead of merely accepting Lawrence v. Fox as sound, they very frequently make the comment that the case is not to be extended. Some cases in which the distinctions are made, and which show how limited the application of Lawrence v. Fox is becoming, are the following:

Metr. Trust Co. v. N. Y. L. R. R. Co. (45 Hun, 9), where the promise was to make good deficiencies in net earnings due to payment of bonded indebtedness; held, creditors were not beneficiaries and could not sue.

O'Neil v. Hudson Valley Ice Co. (74 Hun,,·164), where defendant had hired one Miller to fill his ice-houses, reserving leave to pay the workmen, and the latter were not allowed to sue; here, of course, there was no promise, but the case helped to establish the exceptions.

Ryan v. Pistorve (89 Hun, 78). Ciburre con

tracted with defendant to erect a house for him, defendant agreeing to pay plaintiff, a sub-contractor under Ciburre. Held, plaintiff could not enforce this, as the debt to him arose after the promise was made.

Wise v. Morgan (13 Daly, 408). A guaranty of debts was held to be for the benefit of guarantor. Feist v. Schiffer (79 Hun, 275). A contract to indemnify one liable on a check was not enforceable by the payee of the check.

Bab v. Hirshbein (35 St. R. 581) where vendor hired a broker to sell his property, and they agreed that the latter should look to the vendee for his commission. The vendee agreed with the vendor to pay the commission, yet this was held to be for the vendor's benefit alone, and the broker could not sue on it.

In the last thirteen years the case has come up for comment more than ninety times, and has been criticised frequently, and in the majority of cases calling for a ruling on it, distinguished. It has, however, been followed, and in some instances that were within the exceptions.

Before turning to those cases I must refer to another limitation pointed out in one or two cases, and which bears its part in confining the application of the doctrine of Lawrence v. Fox. In Clark v. Howard (74 Hun, 232) a debtor assigned all his property to one creditor in discharge of his debt, and the latter promised to guarantee the debt of the plaintiff. The plaintiff was denied his remedy on the ground that the defendant never owed his creditor anything, whereas in Lawrence v. Fox the contract arose in the creation of a debt between the contracting parties. The tendency of this is, of course, to limit Lawrence v. Fox to cases with facts precisely identical. gives the court another loophole of escape from applying the anomalous doctrine, and was availed of in Lorillard v. Clyde (122 N. Y. 522).

It

In the face of these exceptions the court have followed Lawrence v. Fox in several cases, to an examination of some of which I now turn. In the first place come cases almost precisely identical with Lawrence v. Fox in facts such as Phelp; v. Rowe (75 Hun, 414), where one Utter owed both plaintiff and defendant debts. He assigned to defendant a claim he had on consideration that defendant would pay plaintiff. This case might have been brought within the exception of Clar v. Howard, but the plaintiff afterwards agreed with defendant to perform the promise, so the courts were ready to enforce it, and did so. I do not recollect any such element in N. Y. Small Stk. v. Klosset (13 Misc. 234), but the facts of that case were so nearly identical with Lawrence v. Fox that the court was probably not bold enough to find a distinction. This was also true of Reynolds v. Lawton (43 St. Rep. 578), decided as late as 1892, where the court evidently gave the question but little consideration on finding that it came

within the facts of Lawrence v. Fox, as tne judge speaks of the unquestioned authority' of that case. Other cases where the doctrine was applied were those already referred to, where some relation of kinship existed between the promisee and the third person, as in Whitcomb v. Whitco.... (92 Hun, 444), where the promisor was the grandfather and the promisee was the mother of the beneficiary; or White v. White (20 Misc. 481), where the beneficiary was the son and heir at law of the promisee. These cases always have in them some element that appeals to the sympathy an sense of justice of the court. This is well shown by the case of Knowles v. Erwin, decided in 1887, reported in 5 St. R. 421, where, if the defendan. had succeeded, the plaintiff would practically have been cut off by his father without any inheritance. Both plaintift and defendant were sons of the promisee in this case. The father deeded a farm and conveyed all his personalty to the defendant, who gave a deed promising to pay $500 to plaintiff. Subsequently a release was made by the promisee to the defendant. So strong was the moral claim of the plaintiff in this case that in spite of the re lease he was allowed to recover. This bore fruit later. It will be noted that the promise in this case was in an instrument under seal, a distinct anomaly early allowed in New York (see Carter v. Mayor of Albany, 43 N. Y. 411), but not permitted in Illinois, Maine and some other States, and one which might easily have been avoided. The case might have been excepted from the ruling of Lawrence v. Fox under Durnherr v. Rau and the other cases holding that the promisce must be under a legal or equitable duty to perform the promise to the third party, but, as I say, the justice of the case was with the plaintiff.

Then there are some sporadic exceptions, such as the case of Little v. Banks (20 Hun, 143), decided in 1880, which goes on grounds of public policy. In this case the defendant contracted with the State authorities to supply the public with law reports and to pay a penalty for each failure. The plaintiff recovered the penalty for several failures to supply him with reports, though he was merely one of the public. The case was clearly within two of the exceptions, but is to be supported on grounds of public policy. An opposite result was reached, however, some years later in Wainwright v. Queens Co. Water Co. (78 Hun, 146), where the defendant contracted to supply water to the city and failed, in consequence of which the plain tiff's house was burned, and plaintiff was not allowed to recover, as he had not been contemplated by the parties as a beneficiary under the contract. Among these sporadic exceptions is the case of Riordan v. Ist Pres. Ch. (6 Mis. 84), where the plaintiff was allowed to recover for services rendered the promisee of a contract with defendan by which the latter promised to pay the promisee's expenses in case of illness. Here there was no

| debt at the time the promise was made, and noth ing answering thereto, and the court was stretching the doctrine for the purposes of justice.

I might here refer to the cases which have seen in Lawrence v. Fox a quasi-contract and allow recovery on the part of the third party as fo money had and received. As was pointed out in a dissenting opinion by Ehrlich in Goud v. Lipman (1 Mis. 475), the weakness of this argument is that the defendant has received no money belonging to the plaintiff, and so the ground of the action fails. But the frequency with which the courts say the defendant has money which er æquo et bono should be paid to the plaintiff shows that the doctrine of Lawrence v. Fox is applied rather from equitable considerations than on legai principles.

Thus we have seen that the cases in which courts enforce the doctrine are those in which some ground of public policy, or some consideration of natural justice, seem to demand it. The principle of the case has been defeated by competition, and its anomalous character is pretty well recognized so that the courts can defeat its application in nearly every instance by applying some distinction.

The question then arises, where the rule is applied, and the third party is allowed to sue, is his right absolute or do the anomalies obtain in regard to the discharge of a contract which strict logic would demand? That is, can the defendant raise defenses against the third party which wou.d avail against the promisee, and is he liable to one alone, or both jointly, or both severally? It wou.d seem that the anomalous character of the third party's rights would justify the court in subordinating them to those of the promisee. As to the equities existing between the parties in regard to the formation of the contract, this is the rule. Thus, in 1873 it was held in Merrill v. Green (55 N. Y. 270). that creditors sued subject to the equities between the defendant and his co-partners, to whom he had given a bond to pay their debts. In 1874, in Hinman v. Bowen (3 Hun, 192), defendant was allowed to set up fraud, which would have defeated an action by promisee. In McCafferty v. Decker (12 Hun, 459), a failure of consideration from the promisee defeated the action of the third party. Other cases are Dunning v. Leavitt (85 N. Y. 30), Crowe v. Lavin (95 N. Y. 423).

No good reason suggests itself why the same rule should not apply to subsequent defenses, such as a release, and the Illinois courts have taken this view. They say the third party has merely an arbitrary right to sue on another's contract, and the right is subject to be defeated, being a gift of the courts.

In New York, however, this is not the doctrine. In Douglas v. Wells (57 How. Pr. 378), in 1879, it was held that a mortgagor could not release one who had assumed the mortgage unless the mort

gagee assented to it. In this case the mortgagee had taken no steps to enforce the contract, but the court held he had a vested right. I have already noted that this view was taken in Knowles v. Owen in 1887, and given some suggestions as to the reasons inducing it. Then comes the remarkable case of Gifford v. Corrigan (117 N. Y. 263), decided in 1889. This case criticised Lawrence v. Fox severely, Finch, J., saying "one's doubts are only dissipated by its authority," and it has done much to discredit and weaken that authority, and yet it held the right in the third party an absolute one. But it limited Douglas v. Wells (supra) to some extent. The case was shortly as follows, using letters instead of proper names: A deed was executed by A. to C., in which the latter assumed a mortgage of A. to B. B. has notice of this, and assents to it, demands payment and brings foreclosure proceedings. Thereupon A. releases C. The court held this release was invalid as to B. the right of the third party became irrevocable when he accepted the contract and adopted it. The necessity for acceptance is a limitation, but on principle it is absurd, as the weakness of the thir party's position is the fact that he gives no consid eration for the promise. Perhaps the sense that justice was with the plaintiff, and some notion of equitable subrogation, inclined the court to give this decision, but it is evident that a stand might have been taken which would have avoided so decided an anomaly by declining to follow Lawrence v. Fox to its logical consequences.

-

One question remains: Can the promisee sue as well as the third party? The court, in Ward v. Cowdrey (5 N. Y. Supp. 282), held that he could, irrespective of the third party. And in very truth it would be a strange justification for depriving a promisee of a contract right to say we have given a third party a contract right which he didn't have, so we must take from you a contract right which you have on the principle, I suppose, of "from him that hath not shall be taken even that which he hath." And in regard to the promisor it may be said that he contracts in regard to the law as it is, and so intends to assume an obligation towards the two parties. At the same time this anomaly and the preceding are bound to give rise to much injustice and hardship. In fact the application of the rule is so palpably unjust and absurd, and the hardships are of such a striking nature, that courts will be more loath than ever to bring cases within the operation of Lawrence v. Fox, so that these anomalies will aid in hastening the extinction of that doctrine.

The result of this study, then, amounts to this, that in the course of forty years the principle of Lawrence v. Fox has been so weakened by exceptions and distinctions that the courts of New York can in nearly every instance avoid the application of it, even in cases whose facts seem most clearly analogous to those of the original decision. That

the courts have invested its application with consequences of such hardships and injustice that they will be less and less willing to bring cases within it, and more and more willing to extend the exceptions and limitations. So that the doc trine of the case is becoming a dead letter, except where it furnishes an excuse to do justice in one of those "hard cases which make shipwreck of principles," or to further public policy, or to aid some clever lawyer to trip up an unwary opponent or hasty court by the beautiful fiction of stare decisis. WM. M. WHERRY, JR. NEW YORK CITY, March, 1900.

Present: Hons. CHARLES H. VAN BRUNT, P. J.; GEORGE C. BARRETT, WILLIAM RUMSEY, MORGAN J. O'BRIEN and GEORGE L. INGRAHAM, JJ. JOHN CUNNINGHAM, Appellant, v. SICILIAN ASPHALT PAVING COMPANY, Respondent.

In an action by a servant against his master for damages for personal injury, held that there was sufficient to go to the jury on the question whether the defendant, with ample time for inspection, had permitted the continued use, as part of a permanent platform for the doing of defendant's regular, steady work, of a rotten plank whose breaking caused the injury.

Appeal by the plaintiff from a judgment in favor of the defendant entered upon the dismissal of his complaint at Trial Term, and from an order denying his motion for a new trial.

Gilbert D. Lamb, for appellant; Joseph Fettretch, for respondent.

BARRETT, J.-This is an action for damages resulting from an injury to the plaintiff, alleged to have been occasioned by the defendant's negligence. The defendant is a manufacturer of asphalt. It has a factory in the City of New York. In one part of this factory there was, at the time of the plaintiff's injury, a series of bins some fifteen or sixteen feet in height. These bins were used as receptacles for the crude material. There was a railroad over the top of the bins. The material was brought up in cars and dumped from the latter into the bins. To accomplish this the workmen had to stand upon a platform, which consisted of two loose planks. These planks were placed upon the side of the railroad track, and were about six

inches from it. They rested on cross beams underneath the track. Although these planks were loose and movable, yet they constituted a platform upon which a part of the company's work was regularly done. In that sense the structure was permanent in its nature. It was not an ordinary “appliance” relating to an isolated job or a transient undertaking. It was essentially a place" where the defendant's business was permanently conducted and where its employes were steadily required to work.

The plaintiff was a common laborer, and at the time of his injury had been in the defendant's employ for out nine days. The accident occurred upon the 19th of January, 1897. Upon the morning of that day the plaintiff was ordered by the defendant's foreman to go up on the platform and help another employe to dump material from the cars. This was the plaintiff's first employment in this particular work. He accordingly went up on the platform and spent over four hours in dumping material into bin No. 1. So far his work was without incident. He then moved over upon the platform some seven feet and began dumping material into bin No. 2. He had removed the material from two cars into this bin No. 2, and was removing it from the third car when one of the planks gave way and precipitated him into the bin, injuring him quite severely. While in the bottom of the bin he was able to see this broken plank; and he testified that it was rotten all through, "worn in the center and on the two sides it was moth-eaten and dozed. You could stick your fingers in the timber."

Upon these facts we think the case was plainly for the jury. The defendant was bound to furnish the plaintiff with a reasonably safe place to work in. That was its duty, and it could not exempt itself from liability for non-performance by delegating performance to another (Benzing v. Steinway, 101 N. Y. 547). It was a breach of that duty to permit the platform upon which the plaintiff was here required to work to wear out and become rotten. It is well settled that the unexplained giving way of a permanent structure upon which employes are required to work is prima facie evidence of the master's negligence (Solarz v. Man. R'y, 8 Misc. 656, aff'd Gen. Term, 11 Misc. 715, aff'd in Court of Appeals, 155 N. Y. 645; Green v. Banta, 48 N. Y. Sup'r Ct. Rep. 156, aff'd 97 N. Y. 627).

Here, however, there was enough to go to the jury upon the question whether the defendant, with ample time for inspection, had permitted the use of an unfit plank. The condition in which the plaintiff found the broken plank after the accident indicates clearly that the break resulted from gradual decay.

This was not within the cases where platforms have been constructed for temporary purposes, or where the employes, after the master has fur

nished them with good and sufficient materials, have themselves built the temporary structures. Here, as we have seen, the platform was essentially a permanent place provided for the doing of the defendant's regular and steady work. Under such circumstances, it was the defendant's duty to see to it that that place was a reasonably safe one. There is nothing in the point as to contributory negligence. The plaintiff had a right to assume that the working place provided for him by the defendant was reasonably safe (Rettig v. 5th Ave. Trans. Co., 6 Misc. 328, aff'd 144 N. Y. 715). There was no obvious danger or extraordinary risk attendant upon the use of the platform. It by no means follows, because the plank was found to be moth-eaten and rotten after the accident, that that condition would have been apparent upon a passing glance at it prior to the accident. The plaintiff was not bound before using the platform to inspect the planks minutely and weigh all possible risks. So long as the danger was not obvious and imminent, he was justified in relying upon the master's performance of his duty. The question upon both heads was for the jury, and the nonsuit was erroneous.

The judgment and order denying the plaintiff's motion for a new trial should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.

LORD BACON'S CONTRIBUTIONS TO LAW.

L

ORD BACON'S fame as a philosopher, his services to science, have so overshadowed his other achievements that justice is hardly done to his literary, political, and professional genius — his professional or legal genius in particular. Bacon," said Queen Elizabeth, hath a great wit, but sheweth to the uttermost in law and is not deep." Elizabeth never quite appreciated Bacon; but there was this amount of truth in the remark, that Bacon was not a Coke, not deeply versed, like his great rival, in the technicalities and subtleties of the law. He had not the qualities of the black-letter lawyer, but he had a nobler genius that stamped all his utterances about law and judicature with a greatness which, as Ben Jonson says, was only proper to himself, and to which Coke never attained. All that he did is, it is true, sketchy and incomplete, but it is just here that his genius discovers itself. He was a Michael Angelo in the grandeur of his conceptions, the largeness of his view. He sketched the outlines, and he left it to smaller men to fill in the details. Take his "Aphorisms of Universal Justice," or "Fountains of Equity" in the De Augmentis Scientiarum. Among Bacon's most cherished projects next, indeed, to the Instauratio Scientiarum was an Instauratio Legum, and in these

aphorisms we have the foundation stones of the edifice laid, and how masterly: In societate civili aut lex aut vis valet - "Judgments are the anchors of the laws, as laws are the anchors of States." More authority is to be allowed to those examples, which, though less used, have been published and thoroughly canvassed; for examples, like waters, are wholesomest in the running stream." "Beware of fragments and epitomes of examples, and rather consider the whole of the precedent with all its process." 66 That law is ever the best which leaves least to the breast of the judge." Hear him on a multiplication of reports or authorities: They "rend the mind of the laws, distract the judge, make lawsuits endless, and the lawyer himself, finding it impossible to peruse and digest so many books, takes up with compendiums.”

So, again, in his "Maxims of Law," written to discharge the debt he conceived he owed to the law: for "I hold every man," he says, a debtor to his profession." To some the maxim of law is jejune enough, a legal platitude; but passed through Bacon's philosophic mind these maxims are transfigured into the leges legum; they stand for the first principles of law, conclusions of reason to the touchstone of which reference needed constantly to be made, because “particular and positive learnings of laws do easily decline from a good temper of justice." How true this is! Following out artificial doctrines of law, how far astray we often get from the true principles of justice, like that judge of whom it was said, Leges Angliæ in absurdum reduxit. Clogging the equity of redemption, for instance, what a number of honest bargains has that well-meant but much misunderstood technicality frustrated! Equally admirable is Bacon in laying down the practical principles which should guide the administration of the law; witness the occasion on which he first took his seat as lord keeper in the Court of Chancery; when, following the example of the Roman prætor, he delivered a luminous address setting forth the principles on which he would use his jurisdiction. The law's delay, the law's costliness, "to retrench all unnecessary delays, which was speedy justice, Bis dat qui cito dat, and that justice might pass with as easy charge as might be, and those same brambles that grow about justice of needless charge and expense, and all manner of exactions be rooted out as far as mought be " these things he had as much at heart as fashioning the corner-stones of the great edifice of law.

PERPETUAL COPYRIGHT.

THE contention in behalf of a perpetual copyright, so amusingly advocated the other day by Mr. Clemens before a committee of the house of lords, is, of course, not new. The perpetuity of copyright is a corollary from the natural right of a man to retain perpetual control over the products of his labor. Perhaps the first appearance of the contention in connection with copyright was in "the petition of Thomas Carlyle, a writer of books," to the house of commons, in 1839. The postulate of this petition was "that the law does at least protect all persons in selling the production of their labor for what they can get for it, in all market places, to all lengths of time." The petition sets forth that "in the happy and long doubtful event of the game's going in his favor" the winnings belong to him or his "forever," and concludes: "May it therefore please your honorable house to protect him in said happy and long doubtful event; and (by passing your copyright bill) forbid all Thomas Teggs and other extraneous persons, entirely unconcerned in this adventure of his, to steal from him his small winnings for a space of sixty years at shortest. After sixty years, unless your honorable house otherwise provide, they may begin to steal."

any other owner to do what he will with his own 'to all lengths of time." This seems reasonable enough. And yet the right to dispose of any kind of property, after the death of the owner, can scarcely be called a natural right. In some civil