Hettrick Manufacturing Co. v. Barish

Mullan, J. (dissenting).

I dissent, not because of any inclination to disagree with the views expressed by my learned brother Bijur in the splendid contribution he has made to the law affecting one of the most important subjects in the whole domain of human relations, but because I do not feel that the members of this court are free either to apply or express any views that they may themselves hold upon the question now before us. This case is on all fours with Frank v. Vogt, 178 App. Div. 833. Mr. Justice Bijur himself admits that no distinction can possibly be drawn between that case and this. If the decision there was right, as we of this court must assume it to be, it follows that the judgment below should be affirmed. If it were possible to suppose that the learned Appellate Division had not been referred to some controlling authority supporting a conclusion contrary to that reached by that court, it would be open to us, I think, with perfect propriety to assume that a different conclusion might have been reached. It does not seem to me, however, in view of the history of the legal controversy concerning the point in question, that such an assumption can be indulged in here. See the opinions in the Frank case and in Windmuller v. Goodyear Tire & Rubber Co., 123 App. Div. 424. I think, therefore, that unless or until the Appellate Division in this department shall adopt a view contrary to that expressed in the Frank case, the rule there laid down must be deemed binding upon us. It may be difficult to reconcile the holding in the Frank case with the very recent decision in the Milford Spinning & Weaving Co. case, but as the opinion in the latter case contains no mention of Frank v. Vogt, a case that has become a leading and much used authority in this department, I am not prepared to regard the Milford Spinning & Weaving Co. decision as an intentional repudiation of the Frank v. Vogt holding. Accordingly, I vote to affirm.

Judgment reversed.