author: Hubbs, J. Crane, Ch. J. Lehman, J.

text:
    The People of the State of New York, Respondent, v. Charles Stolof, Joseph Rivlin, Isidore Gutman and Jacob Wellner, Appellants, Impleaded with Another.
    Argued March 16, 1937;
    decided April 30, 1937.

      William F. Bleakley, Samuel Markewich, Jerome 0. Rosenhaus and Milton Friedman for Joseph Rivlin et al., appellants.
    Reversible error, prejudicial to the rights of the defendants, was committed by the trial court when it excluded testimony by a witness after a proper foundation had been laid to show that the People’s key witness had made contradictory and impeaching statements about material matters testified to by that witness on direct examination. (Larkin v. Nassau Electric R. R. Co., 205 N. Y. 267; Hanlon v. Ehrich, 178 N. Y. 474; Stephens v. People, 19 N. Y. 549; Gaffney v. People, 50 N. Y. 416; People v. Mallon, 116 App. Div. 425; Zimmermann v. Ullmann, 173 App. Div. 650; People v. Weldon, 111 N. Y. 569; Stokes v. People, 53 N. Y. 164; People v. Corey, 148 N. Y. 476; People v. Strait, 154 N. Y. 165; People v. Helmer, 154 N. Y. 596; People v. Smith, 172 N. Y. 210; People v. Purtell, 243 N. Y. 273; People v. Wilcox, 245 N. Y. 404; People v. Wood, 126 N. Y. 249; People v. Sobieskoda, 235 N. Y. 411; People v. Rosenzweig, 265 N. Y. 323.) The People failed to prove the crime of attempted extortion. (People v. Barondess, 133 N. Y. 649; People v. Kelly, 127 Misc. Rep. 300; People v. Risotto, 30 Cal. App. 616; Strange v. State, 33 Tex. Cr. Rep. 315; People v. Anderson, 63 Utah, 542.)

      James J. Armstrong and Walter R. Hart for Charles Stolof et al., appellants.
    There is no evidence to sustain the conviction. (People v. Razezicz, 206 N. Y. 249; Lamb v. Union R. Co., 195 N. Y. 260.) The trial court committed reversible error in the admission and exclusion of evidence. (Insurance Company v. Mosley, 8 Wall. 397; People v. Hughes, 137 N. Y. 29; People v. Weinseimer, 117 App. Div. 603.) The only charge against the defendants substantiated by any proof is that they compelled complainant to pay for his agreement. This they had a legal right to do. (People v. Hughes, 137 N. Y. 29; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; National Protective Assn. v. Cumming, 170 N. Y. 315; Commonwealth v. Hunt, 45 Mass. 111.)

      William F. X. Geoghan, District Attorney {Henry J. Walsh of counsel), for respondent.
    The trial court’s ruling excluding proof of prior contradictory statements of the witness Greenberg resulted in no disadvantage to the appellants in the light of the clear, convincing proof of their guilt. (Kay v. Metropolitan St. Ry. Co., 163 N. Y. 447; Deutschmann v. Third Ave. R. R. Co., 78 App. Div. 413; Larkin v. Nassau Electric R. R. Co., 205 N. Y. 267; People v. Purtell, 243 N. Y. 273; People v. Roach, 215 N. Y. 592; People v. Laudiero, 192 N. Y. 304; People v. Watson, 216 N. Y. 565.) The appellants were guilty of a violation of the statute. (People v. Barondess, 133 N. Y. 649.)
   Hubbs, J.

The five defendants were indicted, charged with the violation of section 850 of the Penal Law by attempting to obtain $300 from Louis Rogoff, a painting contractor, by the wrongful use of force and threats.

The defendants were officers and members of a labor union in the city of Brooklyn, covering the painting trade. The complainant Rogoff was a painting contractor, having contracts for painting then pending. The union called a strike which held up the work on all of his contracts. In order to be permitted to go on with work, all painting contractors who were members of the union were required to get a new contract with the union. Rogoff was a union man and employed union labor. He applied for a new contract. His application was made at the rooms of the association to the five defendants. They refused from time to time to issue a new contract. He testified that he called at the rooms at least ten times before he was able to get the contract in question. They would put him off on one ground and another, refusing to give him any reason why they would not issue the contract. Finally, on one of those occasions, an employee by the name of Cohen came to him and told him that he could not have a contract unless he paid the bums upstairs $300. Prior to that time he had been told by one or more of the defendants that he would be obliged to pay $500. Goodman, one of the defendants, said to him:

Well, we need the money for ourselves, we have to divide for ourselves.”

That statement was made in the presence of the other defendants. He told defendants that he had contracts pending and that if they did not give him the contract he would be ruined, and pleaded with them on different occasions to issue the contract. On one occasion. Belsky said:

“ Don’t be a wise guy. We don’t want you in the business. We don’t like you. Everybody pays us. You are no exception.”

Finally Rogoff and the witness Cohen went to the office of Mr. Dewey, who sent them to the District Attorney of Kings county, and it was arranged that Rogoff should, take $300 in marked money and secure the contract. He went to the association rooms with Cohen and paid over the $300. Belsky put the money in his pocket. At that time detectives broke into the room, arrested the defendants Wellner, who received the money, and Belsky, who had the money in his pocket. Two detectives testified that they asked those defendants if they made any record of the $300 and Belsky said:

He did not have to make a record of it.”

Another detective testified that Belsky said he kept the record in his head or words to that effect. At the same time that the money was paid over and the two defendants were arrested, Cohen, a witness for the People, was arrested and taken with the defendants to the police station. He testified that he had asked the inspector of police to arrest him; I didn’t want them to know until the last minute I am a witness because after all you take a chance with them, everybody knows that.”

On the trial it was admitted that the defendants insisted on the payment of the $300 and that they received the money. The issue was whether the money was graft or whether it had been received by the defendants in accordance with the instruction of the labor council that Rogoff must pay $300 before a contract would issue, under the claim that he had underpaid union workmen to the extent of $300, and that the council was imposing the payment of that sum to it as a condition of issuing the contract so that it could make up to the workmen the difference between the union wages which they should have received and the amount which they did receive from Rogoff.

The court charged the jury that if the defendants’ purpose was legitimate then they were not guilty. That question was submitted to the jury in a fair charge and it found in favor of the People.

During the negotiations between Rogoff and the defendants in his efforts to secure his cpntract, on one occasion he took with him to a meeting with the defendants his attorney, Mr. Louis E. Greenberg. Greenberg attempted to persuade the defendants to issue the contract and promised that he personally would see to it that Rogoff lived up to the contract. After he left the meeting, the defendant Wellner approached him and said:

We have got to have $300 for the bums upstairs.” I said, bums? ” I said, “ Who do you mean? ” He said, “ The gang.”

The contract which was delivered to Rogoff states that the consideration for the contract was the sum of one dollar. It does not refer to the payment of $300.

When the People rested, a strong case had been made out. The defendants then called a large number of witnesses and they disputed the evidence offered by the People’s witnesses as to minor details, as to the time of the meetings, who was present, what was said, and various collateral matters which tended to affect the credibility of the complaining witnesses Rogoff and Cohen. They testified that the $300 was received for an innocent purpose; that it was to be used to pay what was termed the kick-back charges, i. e., sums due Rogoff’s workmen to make up the union wages which he had failed to pay them. Nowhere in the record is there any testimony that fixes the amount which the defendants claim Rogoff had failed to pay his workmen which they were entitled to under the union rate. One of the local unions claimed an item of something like $150. That is the only definite figure mentioned. The contract itself failed to show the payment of the $300.

Witnesses testified that in the talk with attorney Greenberg it was stated to him that Rogoff was indebted for the difference between union wages and the amount paid, and the witness Wellner, one of the defendants, testified that Greenberg said to him on the street:

Wellner, why don’t you take the $300 for yourself and see that Rogoff gets the contract? ”

At the close of the defendants’ evidence the People called Greenberg as a witness. It will be recalled that Wellner had already testified as to what occurred at the meeting with Greenberg and had given his version of the conversation that took place on the street. No objection was made that it was not proper to call Greenberg at that time in rebuttal. He testified that he was admitted to practice in September, 1915, and had conducted an office in New York city; that Rogoff was his client and that he went with him to the rooms of the association at the time in question; that he asked Stolof in the presence of the other defendants the reason why his client, who was a union man and maintained a union job, should not receive his contract. Stolof replied that there was a grievance; that Rogoff had agreed with one Sickels, a business agent, that he would employ men from Sickels’ local and failed to do so. Rogoff denied that. Sickels was then brought into the room and a discussion took place upon that subject. Finally Stolof said:

“ I will see that your client gets the agreement.”

Thereafter, the witness left the room and when on the street was accosted by the defendant Wellner, who stated to him that $300 would have to be paid for the bums upstairs or the gang. He also testified that nothing was said in the conversation upstairs that Rogoff would have to make up the back pay of underpaid former employees who were union men. He testified that the only question that came up was the fact that Rogoff had failed to take men from Sickels’ local union and that

that was all ironed out before it was promised that Rogoff should receive his contract.

On cross-examination the witness was asked if he had told Samuel Null, a lawyer, that at the conference between Rogoff and the defendants there was a claim made that Rogoff failed to pay the union scale of wages. It will be recalled that the defendant’s witnesses had already given their versions of what was said in that conference and that in rebuttal the witness Greenberg had given his version. In answer to the question, the witnes, answered “ no.” That was a denial that he had so stated to Null. He was then asked:

“ Did you tell Mr. Null at that conference that at no time at that conference or outside of the conference that any of the defendants asked for money in the shape of graft?” He answered “ no.”

After the People rested, Null was called as a witness by the defendants and questions were asked for the purpose of contradicting and impeaching the witness Greenberg. The court declined to permit the answers and the defendants excepted. It is now claimed that those exceptions constitute error which requires the reversal of the judgment of conviction, and it is conceded by the district attorney that the rulings were erroneous. We do not believe that on this record we should substitute our judgment in place of that of the Appellate Division and reverse this judgment because of the alleged error. These defendants were caught red-handed. They had in their possession the graft money, and we do not believe that any one can read this record and have a doubt that they intended to keep it. There is abundant evidence in the record to sustain the finding of the jury.

It took courage on the part of the witnesses Rogoff and Cohen, even when possessed of a just cause, to make the complaint which they made. They were not laboring under any delusions about the chances which they were taking. They were uneducated, poor men. Neither had a criminal record. They knew the type of men they had to deal with when they voluntarily entered the complaint with the District Attorney. It is hard to believe that they would voluntarily have taken the chances which they did without any basis in fact for so doing.

The trial judge had the advantage of seeing the witnesses and hearing their testimony, and he denied the motion to set aside the verdict of the jury. The Appellate Division has reviewed the evidence and unanimously decided that the erroneous rulings did not require a reversal. The contract delivered upon the payment of the $300 failed to disclose the payment of that sum but recited a consideration of one dollar. No book entry was made of the payment of the money and the two men who received it stated to the police officers that no entry was necessary. One of them said he could keep the record in his head and he might have added, and the money in his pocket. This court is required by the statute, After hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” (Code Crim. Proc. § 542.)

That provision also governed the action of the Appel- ■ late Division. Mindful of its provisions, the justices of that court have unanimously decided that the error should be overlooked in the interest of justice and the judgment of conviction affirmed. We have reached the same conclusion. Few cases involving the amount of testimony taken in this case (over 750 pages) are tried without some technical error creeping into the record. We, however, are directed by statute to give judgment without regard to technical errors. Any other course will result in breaking down the enforcement of the criminal law.

Whether an erroneous ruling on evidence requires a reversal is largely a question of judgment. Upon questions of judgment judges, acting in the utmost good faith and with a firm intention by their action to promote the ends of justice, may reasonably differ. Even in a murder case there may exist a serious difference of opinion upon such a question. (Cf. People v. Wells, 272 N. Y. 215.) Believing, as we do, that the defendants had a perfectly fair trial and that a just verdict was rendered by the jury, and that the error complained of did not affect the result, we feel under the facts of this case that we should not overrule the judgment of the trial judge and the Appellate Division.

As to each defendant the judgment should be affirmed. '

Crane, Ch. J.

(dissenting). I vote to reverse because of the conceded error in the exclusion of evidence which was competent under fundamental rules of evidence applied in nearly every case.

Lehman, J.

(dissenting). The five defendants have been convicted upon an indictment which charges that they on September 6, 1935, in the County of Kings, attempted to obtain three hundred dollars in money from Louis Rogoff, by the wrongful use of force and fear induced by the threat of the defendants to do an unlawful injury to the property of the said Louis Rogoff, to wit, preventing him from continuing his business of painting contractor and refusing to allow union painters to work on his jobs.”

The defendants in August and September, 1935, were officials of Brooklyn District Council, No. 18 of the Brotherhood of Painters, Decorators and Paperhangers of America.” The complaining witness, Louis Rogoff, was at that time engaged in business as a painting contractor. He held eight contracts for work to be performed in Brooklyn and Queens county. All the contracts provided for the employment of union labor. On August 27th the union called a general strike upon all “ jobs ” within that district. The complaining witness could proceed with work on the contracts which he had, only if he made his peace with the union and obtained from the union a satisfactory agreement permitting him to employ members of the union. He visited the office of the union to obtain such an agreement. He was told to return after Labor day, the following Monday. He returned to the office thereafter. He was told to return again. He did so again and again during that week without obtaining a contract. There were discussions, as to the reason for the delay; there was talk as to whether he had violated rules of the union and whether for such alleged violations the union should withhold a new contract. He brought his lawyer to one of the meetings of the council of the local to urge the council to give him a contract. He failed to obtain such a contract until after he paid the defendants $300 at the office of the union.

Before Rogoff paid the money, he complained to the District Attorney. As soon as the money was paid, detectives from the District Attorney’s office, acting upon a prearranged signal, came into the room and found the money upon the person of one of the defendants. The People produced testimony, to which reference will be made hereafter, to show that the defendants had brazenly demanded the $300 for personal graft. The defendants did not at any time and do not now deny that they refused to deliver to the complaining witness a contract which would permit the complaining witness to carry on his business unless he paid them $300, but they all maintained that they informed the complaining witness that the money must be paid because, in violation of the rules of the union by which he had agreed to abide, he had paid some of his employees less than the union rate of nine dollars per day and had compelled the employees to sign receipts for the union rate. They testified that in demanding and receiving the money they were acting for the union and pursuant to authority intrusted to them by the union, and that the money was intended to make good to workmen kick-backs ” from previous payments of union rates to which the workmen were entitled.

There is conflict of testimony only upon the narrow issue of whether in demanding the payment of $300 the defendants were attempting to induce the payment of the money for their own use “ by a wrongful use of force or fear ” in violation of section 850 of the Penal Law, or were acting for the union and in accordance with authority conferred upon them as officers of the union. The jury resolved that issue against the defendants. The Appellate Division affirmed the judgment of conviction under section 542 of the Code of Criminal Procedure, though it found that the trial judge had erroneously excluded competent evidence offered by the defendants for the purpose of impeaching the testimony of one of the witnesses for the People. The District Attorney in his brief urges forcefully that the error should be disregarded as harmless, but with a conscientious recognition that a prosecuting attorney owes to the court and to the accused a duty to present his case fairly, he states that:

“We cannot, after examining the authorities dealing with the rule which binds the interrogator to testimony constituting new matter elicited on cross-examination (Kay v. Metropolitan Street Ry. Co., 163 N. Y. 447; Deutschmann v. Third Avenue R. R. Co., 78 App. Div. 413), and comparing them with the authority relied upon by the appellants (Larkin v. Nassau Electric R. R. Co., 205 N. Y. 267), agree with the ruling of the trial court excluding testimony which sought to impeach the witness Green-berg, Logoff’s lawyer, by admissions contradictory to his testimony on the trial to another lawyer, Mr. Null, one of the attorneys for the appellants. However, we believe that the error may be disregarded if this court is satisfied that the proof of the appellants’ guilt was not affected by the ruling.”

There is, in fact, no room for possible argument or difference of opinion on the point that the ruling of the trial justice was erroneous. I proceed, then, to consider whether the error may be disregarded.

In his opinion, Judge Hubbs has made a summary of evidence produced by the People which he finds establishes the guilt of the defendants. No opinion of reasonable length could contain a complete summary of all the evidence produced on a long trial. Always the judge writing the opinion must select what he deems important and omit what he deems unimportant. Exigencies of space, too, may, at times, justify bare statement of conclusions as to the probative value of evidence without analysis or even statement of the grounds for that conclusion. If the question presented upon this appeal were only whether the competent evidence properly admitted at the trial is sufficient to justify the verdict, I should be content without more to accept Judge Hubbs’ conclusion that “ there is abundant evidence in the record to sustain the finding of the jury.” I agree, indeed, that if the evidence of the prosecution is true the defendants have, for their own illicit gain attempted to betray the trust which the members of the union have confided in them and are enemies of society deserving punishment at least as severe as the law has affixed to the offense. If that testimony is true, I agree that it took courage on the part of the witnesses Rogoff and Cohen, even when possessed of a just cause, to make the complaint which they made.” Under our system of law the jury alone is the judge of whether or not that evidence is true or false. Throughout the opinion there is the assumption that the evidence is true; but only the jury may pass upon the truth and probative force of the evidence against an accused- — ■ only the jury may place upon the accused the stigma of guilt and subject him to the pains and forfeitures of liberty and reputation which arise from a finding of guilt. If the evidence erroneously excluded by the trial judge might, if admitted, have so impeached the credibility of the evidence produced by the prosecution that the jury might have reached a different conclusion, then the exclusion of that evidence constituted reversible error, though the trial judge or the judges of the Appellate Division, and of this court, might find in the record ample justification for the jury’s verdict establishing the guilt of the defendants.

Trial by jury becomes an empty form unless at such trial the accused may challenge the truth of the testimony produced against him, by cross-examination of the witnesses and the introduction of evidence intended to contradict or explain the evidence of the prosecution. It is the duty of the appellate court to determine whether by erroneous ruling the trial court has denied the accused any substantial right. It may overlook errors only when they “ do not affect the substantial rights of the accused. The right of the accused to present to the jury for its consideration all the competent evidence relevant to the issue and which might affect the conclusion of the jury is not only substantial but is fundamental. Erroneous admission or exclusion of competent evidence does not affect that right where it clearly appears that the weight of such evidence is too slight to influence the balance of the scales of justice, and that the conclusion of the jury must have been the same even had the judge ruled correctly, but the question of whether the accused has been prejudiced by erroneous ruling excluding competent evidence must not be confused with the “ abstract question of guilt or innocence. * * * Error is substantial when we can say that it tended to influence the verdict.” (People v. Sobieskoda, 235 N. Y. 411, 420.)

In Makin v. Attorney-General ([1894] App. Cas. 57) the Lord Chancellor, Hebschell, speaking for himself and the other Law Lords, forcibly stated the reasons why a statute similar to section 542 of the Code of Criminal Procedure may not be construed as conferring upon an appellate court power to disregard error in the admission or exclusion of evidence because the court concluded that other evidence established the guilt of the defendant.

It is obvious that the construction contended for transfers from the jury to the Court the determination of the question whether the evidence ■— that is to say, what the law regards as evidence •— established the guilt of the accused. The result is that in a case where the accused has the right to have his guilt or innocence tried by a jury, the judgment passed upon him is made to depend not on the finding of the jury, but on the decision of the Court. The judges are in truth substituted for the jury, the verdict becomes theirs and theirs alone, and is arrived at upon a perusal of the evidence without any opportunity of seeing the demeanour of the witnesses and weighing the evidence with the assistance which this affords. * * *

It need scarcely be said that there is ample scope for the operation of the proviso without applying it in the manner contended for.

“ Their Lordships desire to guard themselves against being supposed to determine that the proviso may not be relied on in cases where it is impossible to suppose that the evidence improperly admitted can have had any influence on the verdict of the jury * *

For the purpose of showing the significance of the erroneous exclusion of evidence I must make brief reference to some parts of the testimony which, I think, have been passed over too lightly in Judge Hubbs’ opinion. The complaining witness testified that at first he could not obtain from the defendants any statement of the reason why the union did not give him the contract he sought for the employment of union men. Then through one of his employees, Cohen, he was told that he could not have a contract unless he paid the bums upstairs ” $300. He testified that when he protested, one of the defendants said to him:

Well, we need the money for ourselves; we have to divide for ourselves,”

and that on a different occasion another defendant said:

Don’t be a wise guy. We don’t want you in the business. We don’t like you. Everybody pays us. You are no exception.”

The complaining witness was corroborated by his employee, Cohen, but on cross-examination the credibility of both was seriously impaired.

On that point I shall not here attempt to analyse the testimony of these two witnesses. I content myself here with quoting a few comments from the admirably fair brief of the District Attorney. In beginning the summary of the testimony elicited on cross-examination, the brief states:

“ It is to be conceded at the outset that Rogoff developed a serious lack of memory as to his personal and business history.”

The details of the cross-examination which follow in the brief show that Rogoff not only “ developed a serious lack of memory,” but that when questioned as to his failure to produce books and records which might show whether there was basis for the defendants’ claim that the witness had not always paid his employees the amount of the union wages for which he exacted receipts, the witness gave an explanation of the loss of his books and records which, it subsequently appeared, was false.

Again it is said in the brief:

“ Despite their shortcomings and their failing memories upon details of their personal history, which, after all, were collateral issues not entering into the merits of the accusation upon which the appellants were tried, Rogoff and Cohen were clear, positive and explicit upon the subject of the unlawful demands made upon Rogoff by the appellants in the course of their negotiations for the contract which it was in the appellants’ power to furnish.”

Perhaps a juror, seeking to discover where the truth lies, might find in the contrast between the clear, positive and explicit ” testimony of the witnesses upon their direct examination, and their “ shortcomings ” and failing memories on cross-examination,” an indication that their testimony was not entirely ingenuous. A conscientious jury might well hesitate to find that such testimony, without corroboration by a more reliable witness, was sufficient to outweigh the denial of the defendants.

It appeared in the testimony of the complaining witness, Rogoff, and also in the testimony of one of the defendants, that Mr. Louis E. Greenberg, the attorney for Rogoff, had accompanied Rogoff to a meeting of the union and upon leaving the meeting had a conversation on the street with one of the defendants. Mr. Greenberg was then called in rebuttal. He testified without objection that he was admitted to practice in September, 1915, and had conducted an office in New York city; that Rogoff was his client and that he went with him to the rooms of the association at the time in question; that he asked Stolof in the presence of the other defendants the reason why his client, who had always maintained a union shop and paid unión wages and was ready to accept union conditions, should not receive his contract. According to the testimony of Mr. Greenberg, Stolof replied that there was a grievance; that Rogoff had agreed with one Sickels, a business agent, that he would employ men from Sickels’ local and had failed to do so. Rogoff denied that. Sickels was then brought into the room and a discussion took place upon that subject. Finally, Stolof said:

“ I will see that your client gets the agreement.”

Thereafter, the witness left the room and when on the street was accosted by the defendant Wellner who stated to him that $300 would have to be paid for the bums upstairs, or the gang. The witness testified also that nothing was said in the conversation upstairs that Rogoff would have to put up security or pay to make up the back pay of underpaid former employees who were union men. He testified that the only objection there discussed was that Rogoff had failed to take men from Sickels’ local union and that that objection was obviated before the promise was made that Rogoff should receive his contract.

The witness was cross-examined in regard to injunction proceedings he had brought thereafter against the union. In those proceedings the union was represented by the firm of Markewich & Null who appeared on this trial as attorneys for the defendants. In the course of these proceedings the witness, Mr. Greenberg, had some conferences with Mr. Samuel Null. The witness was asked: “ Did you tell Mr. Samuel Null that at the conference at which you were present, between Rogoff and the defendants, there was a claim made by the officials of the union that your client failed to pay the union scale'of wages?” The witness answered, “ No.” He was also asked:

“ Didn’t you tell Mr. Null at that conference that at no time at that conference or outside of the conference that any of the defendants asked for money in the shape of graft?”

to which the witness answered:

“ Mr. Markewich, you know that is not so.”

Thereafter, Mr. Null was called as a witness by the defendants and specific questions were asked for the purpose of contradicting and impeaching the witness Greenberg. Objections to those questions were sustained on the ground that the defendants had made Mr. Greenberg their own witness in the cross-examination and were bound by the answers to the questions. The defendants excepted to the ruling.

The error of the ruling is, as I have pointed out, conceded. The truth of testimony may be effectively challenged by proof that at other times the witness had made statements inconsistent with his testimony on the stand. Cross-examination of the witness as to such prior incompetent statements is necessary to lay the foundation for the introduction of proof that the inconsistent statements were made. Denial by the witness on cross-examination that an inconsistent statement had previously been made by him does not bind the cross-examiner, and exclusion of evidence thereafter offered to prove that such statement had, in fact, been made, constitutes in effect a denial of the right to challenge the truth of the testimony of the witness and to impeach its credibility. We have said that whether an error affects the substantial rights of the parties “ necessarily depends upon the nature of the case and the narrowness of the issue. Good judgment rather than definite rules of law must in such cases be our guide.” (People v. Purtell, 243 N. Y. 273, 275.) There may be room for the exercise of judgment as to the materiality of an error which denies to an accused the fight to produce evidence tending to impeach the credibility of a witness for the People where the testimony of the witness is itself negligible or where the evidence excluded would have affected the credibility of the witness in only negligible degree. There can be no room for the exercise of judgment where the evidence erroneously excluded might, if admitted, have justified rejection of testimony which otherwise would have decisive probative force.

That is the case here. Unimpeached, the testimony of Mr. Greenberg, an attorney of standing and experience, might reasonably induce a jury to find the defendants guilty though otherwise the jury might well have hesitated to find proof of guilt beyond a reasonable doubt in the testimony of the other witness who suffered from failing memories ” and “ shortcomings.” In this case, inference that in fact the jury did give heed to the testimony of Mr. Greenberg rests on more than conjecture. An hour and a half after the jury retired, it returned to the court with a request that the testimony of Mr. Greenberg be read to them again, and that they be permitted to inspect the minutes of the meeting at which Mr. Greenberg was present and five kick-back affidavits ” of former employees of Rogoff, the complaining witness, which the defendants had introduced to substantiate their claim that the $300 was exacted only because it was required to make good the kick-backs ” or difference between the union wages which the' employees should have received, and the amount they did receive from Rogoff. Two hours thereafter the jury returned with a verdict of guilty.

I cannot find, under such circumstances, any ground which is even debatable for the conclusion that the error did not affect the substantial rights of the accused. Unsupported assertion cannot take the place of argument and I have found no support in the record for such assertions as that no one can read this record and have a doubt ” that the defendants intended to keep the money for themselves as graft. It cannot possibly be disputed, and no person has attempted to argue otherwise, that the exclusion of the testimony of Mr. Null might have affected the credibility of the testimony of Mr. Green-berg. Assuming, arguendo, that the jury might have found the defendants guilty even without Mr. Greenberg’s testimony, it remains true that his testimony was presented to the jury for its consideration; that the trial court specifically called the jury’s attention to it; that the jury interrupted its deliberations by request to have the testimony read to it a second time, and that Greenberg’s unimpeached testimony is well calculated to remove any doubts which otherwise the jury might well have had. Denial to the defendants, then, of opportunity to present evidence which indubitably would challenge the truth of the testimony and might affect its credibility is a denial of the right of fair trial. I cannot see how the opinion of the trial judge, or of appellate judges, as to the guilt of the defendants, can affect that. Arguments that the guilt of the defendants is sufficiently established by other evidence seem to me quite beside the mark.

It is unfortunate when the court is constrained to reverse a conviction for serious crime because of error in the admission or exclusion of evidence which, perhaps, might not have changed the result. Swift and certain punishment of wrongdoers is the most effective protection of society. It is even more unfortunate if the court for any reason feels itself constrained to affirm a conviction where the accused is denied a fair trial. Because I am profoundly convinced that these defendants have been denied a fair trial, I feel compelled to register, in this manner, my dissent against the decision of the court. Judgment should be reversed and a new trial ordered.

O’Brien, Lotjghran, Finch and Rippey, JJ., concur with Hubbs, J.; Crane, Ch. J., dissents in memorandum Lehman, J., dissents in opinion.

Judgments affirmed.


source: Caselaw Access Project

author: Rippby, J.

license: Public Domain

text:
    Eugene A. Perkins, Respondent, v. Guaranty Trust Company of New York, Defendant, and Idonah S. Perkins, Appellant.

      Argued January 14, 1937;

    decided May 25, 1937.

      Milton B. Weinberger, William Klein,■ Jerome Weinstein and Adolph Lund for appellant.
    The courts below erred in finding that the denial by the Philippine court to vacate the consent judgment was res adjudicata. (Everett v. Everett, 180 N. Y. 452; Blank v. Blank, 107 N. Y. 91; Beards v. Wheeler, 76 N. Y. 213; Foote v. Lathrop, 41 N. Y. 358; Dutton v. Smith, 10 App. Div. 566.) The court below erred in its refusal to find that respondent at all times has been a citizen of the United States and State of New York and that appellant, always a citizen of the United States, through her marriage to respondent, became a citizen of New York. (Matter of Daggett, 255 N. Y. 243; Matter of Newcomb, 192 N. Y. 238; Matter of Lydig, 191 App. Div. 117; Matter of Johnson, 39 Phil. 156; Templeton v. Babcock, 52 Phil. 130; Quintana v. Lerma, 24 Phil. 285; Mawhinney v. Millbrook Woolen Mills, 231 N. Y. 290; Adler v. Zimmerman, 233 N. Y. 431.) The court below erred in finding that the rights of the wife with respect to marital property must be determined under the laws of the Philippine Islands and not the laws of the State of New York. (People v. Daiboch, 265 N. Y. 125; Matter of Johnson, 39 Phil. 156; Templeton v. Babcock, 52 Phil. 130; Miciano v. Brimo, 50 Phil. 867.) Under the laws of the State of New York the appellant is entitled to her own separate property. (Weigert v. Schlesinger, 150 App. Div. 765; Shapiro v. Shapiro, 208 App. Div. 325; Whiton v. Snyder, 88 N. Y. 299; Magdeburg v. Dry Dock Sav. Inst., 147 App. Div. 652; 205 N. Y. 544; Melton v. Divine, 20 Barb. 9; Peters v. Fowler, 41 Barb. 467.) The consent to the entry of the judgment of August 4, 1930, and the assignment by appellant of the shares of stock was executed under a mistake as to her rights of ownership. Respondent deliberately took advantage of her ignorance instead of informing her that her rights were governed by New York law, which constituted fraud, or if he was not aware of suclx rights, he shared the mistake with her. He obtained the shares without consideration, either through mistake, fraud or unfair dealings. (Boyd v. De La Montagnie, 73 N. Y. 498; Haack v. Weicken, 118 N. Y. 67; Matter of Smith, 243 App. Div. 348.)

      Martin Taylor, Henry A. Stickney and Otto Schoenrich for respondent.
    No fraud was practiced on the appellant in the Philippine litigation and the judgment was not the result of any mistake. (Guinguing v. Abuton, 48 Phil. 144.) The Philippine law as to conj'ugal property governed the rights of the parties. (Slaughter-House Cases, 83 U. S. 36; Prentiss v. Brennan, 19 Fed. Cas. No. 11,385; Hough v. Société Electrique Westinghouse de Russie, 231 Fed. Rep. 341; Hepburn & Dundas v. Ellzey, 4 U. S. 444; Templeton v. Babcock, 52 Phil. 130; Matter of Chadwick, 109 Misc. Rep. 696.) The New York State law requires the application of the Philippine law relating to community property. (Matter of Slade, 154 Misc. Rep. 275; Hough v. Société Electrique Westinghouse de Russie, 231 Fed. Rep. 341; Hammerstein v. Lyne, 200 Fed. Rep. 165; Matter of James, 172 App. Div. 800; Matter of Chadwick, 109 Misc. Rep. 696; Matter of Hernandez, 172 App. Div. 467; 219 N. Y. 566.)
   Rippby, J.

The issue involves title to and ownership and/or management and control of 24,000 shares of the capital stock of the Benguet Consolidated Mining Company said to be worth more than a quarter of a million dollars. The character, quality and extent of the ownership of, control over, and right to possession of the certificates representing the stock depends upon whether the laws of the Philippine Islands or the laws of the State of New York govern the property rights of Perkins and his wife, and attention first must be addressed to a solution of that question.

Defendant Idonah Slade Perkins was born in Big Prairie, Mich., December 14, 1886. Later she lived for a time in Spokane, State of Washington, and from there went to the Philippines in 1913. Plaintiff was born in 1886 a citizen of the United States. His actual residence until after he was twenty-two years of age and his domicile from birth was in Brooklyn, N. Y. He was admitted to the practice of law in New York State in the year 1908 and then asserted under oath, as the law required (Code Civ. Proc. § 56), that he was a citizen and resident of the State of New York. Prior to 1914 he went to Manila, P. I., and since arrival there has been engaged in the practice of law in the Philippines. Perkins and his wife were married at Manila on January 3, 1914, by the pastor of the Central Methodist Episcopal Church. The marriage was not authorized by nor contracted under the provisions of the Spanish Marriage Law of 1870 or under the provisions of the Civil Code of Spain, but rather pursuant to the authority conferred by the provisions of section 5 of General Order No. 68 of the United States Military Occupation, as amended, and was valid both in the Philippines ( United States v. Macleod, 3 Phil. 510, 513) and in the United States and the State of New York (Van Voorhis v. Brininall, 86 N. Y. 18; Thorp v. Thorp, 90 N. Y. 602). Perkins and his wife have been living apart since 1930, but there has been no decree of separation or divorce.

Change of the status of either as a citizen of the United States could be effected only by naturalization under the naturalization laws of the Philippine Islands enacted on March 26, 1920, pursuant to authority conferred upon the Philippine Legislature by an act of the Congress of the United States of August 29,1916, embodying similar provisions of previous acts. (39 U. S. Stat. 546; U. S. Code, tit. 48, § 1002; United States v. Wong Kim Ark, 169 U. S. 649; Roa v. Collector of Customs, 23 Phil. 315, 330; Go Julian v. Government of Philippine Islands, 45 Phil. 289.) Neither party has performed any act of renunciation of American citizenship or taken any steps to acquire Philippine citizenship but, on the contrary, each party has persistently asserted American citizenship at all times. Mere residence in the Philippines, no matter how long continued, cannot affect their status as citizens of the United States or plaintiff’s status as a citizen of the State of New York. (Matter of Johnson, 39 Phil. 156; Templeton v. Babcock, 52 Phil. 130.)

The principle of nationality governed the civil rights of residents of the Philippine Islands. Article 10 of the Civil Code of Spain (extended to the Philippines by royal decree in July, 1889), so far as not repealed or inoperative because of change of sovereignty, reads as follows:

“ Art. 10. Personal property is subject to the laws of the nation of the owner thereof; real property to the laws of the country in which it is situated.
“ Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated.”

The words “ residence ” and domicile ” when used in a statute may have an identical or a variable meaning depending “ upon the nature of the subject-matter of the statute as well as the context in which the words are used.” (Rawstorne v. Maguire, 265 N. Y. 204, 208.) Likewise, nationality,” citizenship ” and “ domicile ” may have an identical meaning and be exclusive of “ residence,” and the expression “ laws of the nation of the owner ” as used in article 10 of the Civil Code refers to and embraces the nationality of the owner and has been so construed by the highest court of the Philippine Islands. (Matter of Johnson, supra; Templeton v. Babcock, supra.) In the Johnson case, Johnson was a native of Sweden who was a naturalized citizen of the United States and domiciled in the State of Illinois and thereafter moved to and died in the Philippines. It was held that the laws of Illinois governed the execution of his will and the devolution of his property under article 10 of the Civil Code. Decision was rendered prior to the naturalization law of 1920. At page 171 of the opinion the court says:

“ There is no law in force by virtue of which any person of foreign nativity can become a naturalized citizen of the Philippine Islands; and it was, therefore, impossible for the testator, even if he had so desired, to expatriate himself from the United States and change his political status from a citizen of the United States to a citizen of these Islands. This being true, it is to be presumed that he retained his citizenship in the State of Illinois along with his status as a citizen of the United States. It would be novel doctrine to Americans living in the Philippine Islands to be told that by living here they lose their citizenship in the State of their naturalization or nativity.”

When applied to the facts in this case, the American nationality of Perkins was combined with American domicile and embraced his New York State citizenship and domicile and the “ laws of the nation ” means the laws of New York State. It was the domicile of origin which is conclusively presumed to continue as no change was alleged or proved (Dupuy v. Wurtz, 53 N. Y. 556; Mitchell v. United States, 21 Wall. [U. S.] 350) and the subsequent permanent and continuous domicile of selection as indicated by the uncontradicted documentary evidence in the case. Among this is Perkins’ declaration in his will made August 23, 1928, where he says he is “ a citizen of the United States and of the State of New York, and at present residing in the City of Manila, Philippine Islands,” and his recital in the agreement of separation between himself and wife of July 1, 1930, prepared by him but unexecuted, the Husband and the Wife, citizens of the United Slates, the Husband a citizen of the State of New York, (which citizenship they have never renounced and with respect to which they now contract).” Furthermore, his legal domicile was assigned to him by law. (American Law Institute, Restatement of the Law of Conflict of Laws [1934], § 9.)

The trial court held as a matter of law that article 10 of the Civil Code had no application to the property rights of the parties in the case at bar. On the contrary, it specifically defines the law that governs property rights of citizens of the United States residing- in the Philippines while living and rights of succession by death. (Matter of Johnson, supra; Templeton v. Babcock, supra; Aldecoa v. Hong Kong & Shanghai Banking Corp., 30 Phil. 255; Miciano v. Brimo, 50 Phil. 867; Sanchez Roman, Studies of the Civil Law [2d ed. 1911], vol. 2, pp. 322, 346; Scaevola, Annotations to the Civil Code [5th ed. 1912], vol. 1, p. 250; Albucilla, Dictionary of Spanish Administration [6th ed. 1917], vol. 5, p. 676.)

The Benguet Consolidated Mining Company is a corporation organized under the laws of the Philippine Islands. 15,888 shares of the stock in question were acquired by Idonah Slade Perkins by purchase out of her own separate moneys at a cost of $11,500 at various times and in varying amounts between August 16, 1916, and June 11, 1927. 224 shares were a Christmas present to her from her husband on December 26, 1923. On October 18, 1923, 7,888 shares were issued to her as a stock dividend. The entire 24,000 shares stood in her name upon the books of the corporation down to April 11, 1934. Certificates for the stock were issued in her name and have been in her possession at all times save only as they have been on deposit with the trust company. Possession of the certificates in her name carries with it the presumption of ownership. (Whiton v. Snyder, 88 N. Y. 299.) Perkins made a motion in action No. 37517 (later referred to) for an order requiring the mining company to cancel the certificates which were issued to his wife and to issue new certificates in their place. The order was granted on April 5, 1934, notwithstanding the protest of the mining company that the court was without jurisdiction to grant the order. No notice was given to Mrs. Perkins of that proceeding nor did she appear. The court was without jurisdiction to make the order and it was void and of no effect and in no manner affected her legal rights in the stock. (Matter of Coates, 75 App. Div. 469.) Shortly thereafter new certificates were issued to Perkins pursuant to the order of the couit.

The law of domicile prevails in the United States as to civil rights. The condition and nationality of Mrs. Perkins followed that of her husband (U. S. Rev. Stat. [1874], § 1994 [repealed by § 6 of act of Congress of Sept. 22, 1922; U. S. Code, tit. 8, § 10, without affecting citizenship obtained thereunder]; U. S. Code, tit. 8, § 10; Civil Code of Spain, art. 22), and, upon marriage, she took his domicile by operation of law (Matter of Daggett, 255 N. Y. 243, 246). If follows that the stock was not property of the conjugal partnership to be possessed and administered by the plaintiff under the laws of the Philippine Islands, as found by the trial court. Rather, the law applicable to the property rights in the stock is the law of the State of New York. Here, the stock was her separate property. (Domestic Relations Law [Cons. Laws, ch. 14], §§ 50, 51; Whiton v. Snyder, supra; Magdeburg v. Dry Dock Savings Institution, 147 App. Div. 652; app. dism., 205 N. Y. 544.)

But plaintiff contends and the lower courts have found and concluded that all questions as to title, ownership and right to possession of the stock and certificates are res adjudícala here by virtue of proceedings in the Philippine courts in which both plaintiff and his wife were parties. That position cannot be maintained.

On or about June 30, 1930, Idonah Slade Perkins commenced an action in the Court of First Instance in Manila (Case No. 37517) against her husband for a separation and, as incidental relief in the event a separation Were granted, she asked that the court decide concerning the property rights of herself and her husband in accordance with the provisions of the Civil Code. She then believed that the civil law in force in the Philippine Islands governed the property rights of herself and husband rather than the New York State law. In her complaint she alleged that various properties, including the stock in question, constituted “ conjugal property of the conjugal partnership.” The relief she might have procured under the Philippine law, according to circumstances, if successful in the separation action, was an allowance for support and maintenance payable by her husband out of his own property or out of the conjugal property before division or out of his share of the conjugal property. Her assertion that the stock in question was conjugal property to be held and administered under the provisions of the Civil Code was based upon misapprehension and upon erroneous advice by her husband as to the applicable law. Even though such advice had been honestly given, under the provisions of sections 333 and 334 of the Code of Civil Procedure, the law of the forum, as well as under the law of the State of New York, it constituted constructive fraud as a matter of law. (Boyd v. De La Montagnie, 73 N. Y. 498.) Perkins filed an answer raising the general issue and embodied in it a cross-complaint. In the cross-complaint he alleged that he was entitled by virtue of the conjugal partnership to the possession and administration of all of the property of himself and wife and demanded that such property in her hands be turned over to him for that express purpose. He did not assert any claim or demand any adjudication that he had title to and was the sole owner of the property in question. On July 25, 1930, Mrs. Perkins signed a petition, prepared and submitted to her by the plaintiff, after he had required her to discharge the attorney who was representing her in that action and had forbidden her legal advice, whereby she asked to be permitted to withdraw her complaint and that judgment be entered in his favor upon his cross-complaint. This paper, as well as other papers which she then signed, was executed and delivered upon the express representation by the plaintiff that doing so would take her out of court, as shown by the uncontradicted evidence of a number of disinterested witnesses. Notwithstanding the representation, Perkins forthwith proceeded to file the consent in the Philippine court and the court thereupon and on August 4, 1930, entered a decree by which her petition was granted and Perkins Was awarded possession of the certificates and the right to administer the stock in question and Mrs. Perkins was directed to deliver the certificates to him. The certificates were then outside the jurisdiction of the court. Relying upon the condition on which the papers were signed and believing that the provisions of the Philippine law as to conjugal property-rights controlled and that by signing them all court proceedings would be ended, she filed no reply to the cross-complaint and failed to appear and was not represented in court. She took no appeal. An appeal would not lie from the consent judgment.

By the filing of the complaint and answer there can be no doubt but that the Philippine court had jurisdiction of the parties and of the issue tendered by the pleadings. Had that issue been left in the case, any judgment thereon, after hearing and determination on the merits, would be conclusive as to all matters actually in issue and actually litigated (Kinnier v. Kinnier, 45 N. Y. 535; Culross v. Gibbons, 130 N. Y. 447), except that it might be impeached in equity for fraud if against conscience to execute it, either in the Philippine courts (Anuran v. Aquino & Ortiz, 38 Phil. 29) or in the courts of the State of New York (Kinnier v. Kinnier, supra; Arcuri v. Arcuri, 265 N. Y. 358, 361). But neither plaintiff nor defendant presented to the Philippine court the issue involved here, namely, whether the property rights of the parties were governed by the laws of the State of New York or by the Civil Code of Spain, and no such issue was or could be litigated or determined upon the merits in the Philippine court. Plaintiff’s consent was, in fact, a voluntary nonsuit as to her cause of action. The decree, in express terms, authorized her to withdraw her complaint. Thus there was removed from the consideration of the court any question of the legal rights of the parties in so far as they were raised by the complaint; the stipulation was that the claim of defendant to the right to possess and administer the property might be determined in his favor without litigation. The scope of the jurisdiction of the Philippine court was limited to the precise matters presented by the consent, and the judgment or order does not constitute an adjudication upon the questions involved in the case at bar and is no estoppel to its maintenance. (Reynolds v. Stockton, 140 U. S. 254; Webb v. Buckelew, 82 N. Y. 555; Bannon v. Bannon, 270 N. Y. 484, 491.)

On September 16, 1930, Perkins filed a petition in the Court of First Instance of Manila to punish his wife for contempt of court for refusing to obey the aforesaid decree and to surrender possession of the mining company stock in accordance therewith. Thereupon Mrs. Perkins procured counsel and was advised as to her rights in the stock in question. She filed an answer wherein she questioned the correctness of the judgment on the merits, stated in detail the facts upon which she alleged that the consent to the entry of the decree had been procured from her by fraud, duress and deceit, raised the question of the jurisdiction of the court to grant the judgment and asserted that she was the owner and entitled to possession of the stock and that title and right to possession of the stock must be determined according to the laws of the State of New York. On March 30, 1931, an order was made adjudging her in contempt and directing her imprisonment. The court refused to consider her defense in the contempt proceedings, saying, If the plaintiff considered herself entitled to the exclusive ownership of some of the properties described by her in her complaint, she should have objected to and appealed from the judgment rendered in this case, which is now final due to the fact that the plaintiff allowed the legal period for the interposition of an appeal, to expire.” From the order adjudging her in contempt, she appealed to the Supreme Court and the order was affirmed by a divided court, the minority taking the position that the lower court was without jurisdiction to enter a decree on the consent of the wife under the Philippine law and further that the wife had no power to consent to the entry of the decree and that when the lower court granted her petition to withdraw her complaint there was no issue before the court for trial. On May 5, 1933, Perkins made an ex parte application to commit his wife to prison, an order of commitment was made by the court on May 10, 1933, and on the same day the Director of Prisons in Manila certified that he had taken her into custody. She filed a petition for discharge from custody and this petition was denied on May 15, 1933. She thereupon procured a writ of habeas corpus and was released on bail and before the decision of the court on the writ she departed for the United States.

While the contempt proceeding was pending and on January 15, 1931, Mrs. Perkins made a motion in the action No. 37517 to the Court of First Instance at Manila to vacate the judgment on the ground of fraud and mistake and excusable neglect under the provisions of section 113 of the Philippine Code of Civil Procedure, which reads as follows:

Sec. 113. Relief from effect of judgments and orders. Upon such terms as may be just the court may relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect: Provided, That application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken.”

She alleged that the judgment had been obtained as a result of her mistake, excusable neglect and inadvertence brought about by the fraud, deceit and duress of her husband and by his representations and by his false and fraudulent protestations of his desire to effect a reconciliation with her and to five with her again in their home as man and wife and as a result of her mistake as to her rights in the property in question and of the applicable law governing those rights and as a result of her mistaken belief, induced by her husband, that the stock was the property of the conjugal partnership under the laws of the Philippine Islands. She raised the question of the jurisdiction of the court to grant the decree and asserted that ownership and right to possession were to be determined by the laws of the State of New York. Perkins appeared and answered and the court denied her motion solely upon the ground of loches in moving to vacate and not upon the merits, although she made her motion within the time prescribed. It was held and stated by the court that to go into the merits “ would be the equivalent of depriving the courts of the discretion conferred upon them in the due exercise of that which is provided in section 113 of the Code of Civil Procedure.” Upon appeal from the order denying this motion, the Supreme Court affirmed.

It is clear from the certified record of the proceedings in the Philippine courts upon both motions that the granting of plaintiff’s motion to punish his wife for contempt rested solely upon the technical but erroneous ground that an appeal from the judgment of August 4, 1930, was available which was not taken and that the denial of the wife’s motion to vacate that judgment under section 113 of the Philippine Code of Civil Procedure was solely on the ground of loches and in the exercise of discretion. Under such circumstances, the courts of New York are not concluded by the decisions of the Philippine courts (Everett v. Everett, 180 N. Y. 452; Bannon v. Bannon, 270 N. Y. 484, 491) for the purpose of the motion was to open the default and allow her to plead upon and litigate the merits. Neither decision Was a bar to an action in equity in the Philippine Islands to set aside the decree for fraud (Melgar & Noel v. Delgado & Alquizola, 54 Phil. 668; Anuran v. Aquino & Ortiz, supra), nor does it bar such an action in the courts of New York State or estop Mrs. Perkins from questioning the validity of the judgment of August 4, 1930, on the merits on any ground available. (Hunt v. Hunt, 72 N. Y. 217, 225; Foote v. Lathrop, 41 N. Y. 358; Everett v. Everett, supra.)

At the time Mrs. Perkins executed the petition for permission to withdraw her complaint in action No. 37517 she also executed and delivered to her husband an assignment of the stock in question and he has had possession of the assignment since. If the law of the place of its execution is to govern, it was void under articles 1334 and 1458 of the Civil Code, which have been construed to mean that any gratuitous transfer whereby a married woman purports to convey to her husband her entire interest in the conjugal estate is void. (Uy Coque v. Sioca, 45 Phil. 430, 440, 441.) By the provisions of section 334 of the Philippine Code of Civil Procedure, subdivision 2, it is presumed that the procuring of the assignment was with wrongful intent. If not rebutted, the presumption is absolute. (United States v. Tria, 17 Phil. 303.) If the validity of the assignment is to be determined by the laws of New York State, it is also void. It was not under seal and the trial court has found consideration to be lacking. Likewise, it was executed completely on the erroneous assumption that the stock was conjugal property upon the representations of her husband and in the belief, as the trial court found, that- she had no independent title or ownership in the property and that her property rights were governed exclusively by the laws relating to partnership or conjugal property.

The uncontradicted testimony required the trial court to declare the assignment and the consent void and to hold that the judgment of the Philippine court was a nullity because of the fraud, imposition, duress and deceit practiced by Perkins on his wife. The findings of the trial • court are to the effect that both Perkins and his wife believed that the Philippine law governed the property rights of husband and wife and that Perkins so advised his wife. At the time of the execution of the assignment and consent, Perkins had compelled his wife to discharge the attorney who had represented her in the action in which the decree of August 4, 1930, was entered, and bad declined to permit her to consult with an attorney, although she had requested permission so to do. A number of. legal documents, including the consent and the assignment, were placed before her in the presence of several witnesses, some of whom declined upon her request to give her any advice and all of whom declared in affidavits used at the trial that Perkins then said to his wife that the signing of the papers would get her out of court. The evidence is uncontroverted that Perkins forthwith used the consent and other papers to bar Mrs. Perkins from her legal rights through court proceedings. The conclusion is inevitable that she executed the papers under mistake, misapprehension, duress and fraud. Because of the confidential relations existing between husband and wife and the high degree of honesty and fair dealing demanded of him and because of his knowledge and experience in the law, he was required to deal with her with frankness, fairness and complete honesty. Unfair dealing and over-reaching on his part in the matters in question constitute fraud and the burden was upon him to overcome the presumption. (Boyd v. De La Montagnie, supra; Haack v. Weicken, 118 N. Y. 67.) He has made no attempt whatever to meet this burden.

Finding of fact No. 6 to the effect and in so far as it purports to relate to the parties here “ that the domestic relations and property relations between husband and wife in the Philippines are regula! ed by the provisions contained in Articles 1315 to 1444 inclusive of the Civil Code in force in the Philippine Islands (hereinafter called the Civil Code) since prior to 1914 and findings of fact numbered 9,10,11,13,14, 39 and 44 in so far as it provides that Mrs. Perkins was represented throughout the proceedings in case No. 37517 by attorneys of her own selection, 46, 47, 48 and 61 in so far as it limits the claim of fraud or mistake to lack of advice as to the applicability of Article 10 of the Civil Code, 64 and 65 are without evidence to support them and constitute rulings of law which survive a unanimous affirmance by the Appellate Division and are erroneous. Findings of fact numbered 15, 17, 19, 20, 22, 26 and 42 are conclusions of law and are without evidence or findings to sustain them. Requests of defendant Perkins to find, as facts, numbers 7, 8 (as to part stricken out by trial court), 11, 12, 16, 19, 20, 21, 25, 26, 29, 31, 32, 33, 35, 36, 37, 43, 46, 48, 49, 50, 51, 52 and 53 were erroneously refused in that they were based upon uncontradicted evidence and they were not inconsistent with findings of fact made by the trial court. (Mawhinney v. Millbrook Woolen Mills, 231 N. Y. 290, 297.) The conclusions of law by the trial court necessarily fall. For these errors, the judgment must be reversed.

Inasmuch as the laws of New York State determine the title and ownership of the mining stock and findings of fact by the trial court undisturbed by this decision with the requests erroneously refused remain in the case sufficient to sustain a decree for defendants, no question of fact remains for determination, and “ this court should render final judgment upon the right of the parties according to law.” (Cohen v. A. F. A. Realty Cory., 250 N. Y. 262, 264; Civ. Prac. Act, § 584, subd. 2.) Under those circumstances, the judgments of the Appellate Division and of tbe Special Term should be reversed, the complaint dismissed, and a decree should be made in favor of the defendant Perkins on the second counterclaim. The appeal from the order striking out the third counterclaim was not argued and is not passed upon.

The matter is remitted to the Special Term with directions to make the findings erroneously refused and enter a decree adjudging that the assignment dated July 25, 1930, is null and void and that it be returned to defendant Perkins, that Idonah Slade Perkins is the absolute owner of the stock in question together with all dividends thereon, that plaintiff return to defendant Perkins the deposit receipt for the certificates and deliver to her any substitute certificates received by him therefor with suitable indorsement or assignment, that the defendant trust company deliver the certificates to her and that the plaintiff account for and pay over to her all dividends and increase received by him on account of the 24,000 shares of stock and proceed with accounting therefor, and for such other or additional relief as may be necessary to afford her complete relief in accordance with this decision, with costs to appellant in all courts.

The judgment of the Appellate Division and that of the Special Term should be reversed and judgment directed for the defendant-appellant in accordance with this opinion, with costs in all courts.

Crane, Ch. J., O’Brien, Hubbs, Loughran and Finch, JJ., concur; Lehman, J., dissents.

Judgment accordingly.


author: Loughran, J.

text:
    Eugene Szold, Appellant, v. Outlet Embroidery Supply Co., Inc., Respondent.

      Argued March 23, 1937;
    decided May 25, 1937.

      Eugene L. Garey, Emanuel Hoyt and Milton I. Hauser for appellant.
    Section 13-b of the Workmen’s Compensation Law constitutes an unlawful delegation of power to non-governmental agencies, an unlawful delegation of legislative power, in violation of section 1 of article 3 of the State Constitution, and is unreasonable, discriminatory and constitutes class legislation, in violation of section 6 of article 1 of the State Constitution and the Fourteenth Amendment to the Constitution of the United States. (Johnstown Cemetery Assn. v. Parker, 45 App. Div. 55; Coty, Inc., v. Hearn Dept. Stores, Inc., 158 Misc. Rep. 516; Cline v. Consumers Cooperative Gas & Oil Co., 152 Misc. Rep. 653; Fox v. Mohawk & H. R. Humane Society, 165 N. Y. 517; Brown v. University of State of New York, 242 App. Div. 85; 266 N. Y. 598; Matter of Bloom, Inc., v. Cruise, 259 N. Y. 358; People ex rel. Greenberg v. Reid, 151 App. Div. 324; Harmon v. State, 66 Ohio St. 249; Yick Wo v. Hopkins, 118 U. S. 356; Schecter Corp. v. United States, 295 U. S. 495; Panama Refining Co. v. Ryan, 293 U. S. 388; People v. Klinck Packing Co., 214 N. Y. 121.) Section 13-b of the Workmen’s Compensation Law, vesting in the county medical societies certain rights and powers, violates the provisions of sections 2 and 3 of article 5 of the State Constitution. (People v. Tremaine 252 N. Y. 27.) Section 13-g of the amended Workmen’s Compensation Law, relating to compulsory arbitration in disputes over medical bills, has no relationship to the health, safety and welfare of the injured workman and is not within the police power of the State. Also, it violates section 2 of article 1 of the State Constitution by depriving the parties of the right to trial by jury. (Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514; New York Central R. R. Co. v. White, 216 N. Y. 653; 243 U. S. 188; Matter of Webster v. Van Allen, 217 App. Div. 219; Matter of Berkovitz v. Arbib & Houlberg, Inc., 230 N. Y. 261; People ex rel. Baldwin v. Haws, 37 Barb. 440; Cutler v. Hinds & Richley, 151 Penn. St. 195; Finsilver, Still & Moss, Inc., v. Janan, Inc., 224 App. Div. 26.) The provisions of section 13 of the amended Workmen’s Compensation Law, which empowers the Industrial Commissioner to establish a schedule of minimum charges and fees for medical treatment and care, and prohibit the acceptance of less than such minimum, under penalty of removal from the authorized list, is violative of the due process clauses of the State and Federal Constitutions. (Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522; Lochner v. New York, 198 U. S. 45; Ribnik v. McBride, 277 U. S. 350; Tyson & Bro. v. Banton, 273 U. S. 418; Nebbia v. New York, 291 U. S. 502; People v. Nebbia, 262 N. Y. 259; Borden’s Farm Products Co. v. Ten Eyck, 297 U. S. 251; People v. Gillson, 109 N. Y. 389; Lochner v. New York, 198 U. S. 45.)

      John J. Bennett, Jr., Attorney-General (Patrick S. Mason and William H. Stieglitz of counsel), for respondent.
    Chapters 258 and 930 of the Laws of 1935, amending the Workmen’s Compensation Law, are constitutional, and must be liberally and broadly construed. (Shanahan v. Monarch Engineering Co., 219 N. Y. 469; Matter of Sweeting v. American Knife Co., 226 N. Y. 199; State Industrial Commr. v. Newman, 222 N. Y. 363; Matter of Petrie, 215 N. Y. 335; Matter of Costello v. Taylor, 217 N. Y. 179; Winfield v. N. Y. C. & H. R. R. R. Co., 216 N. Y. 284; Matter of Moore v. Lehigh Valley R. R. Co., 217 N. Y. 627; Matter of Rheinwald v. Builders Brick & Supply Co., 168 App. Div. 425; Matter of Mc Queeney v. Sutphen & Myer, 167 App. Div. 528; Allied Mutual Ins. Co. v. De Jong, 209 App. Div. 505.) Medical care and treatment, the charges therefor and payment thereof, are part and parcel of the scheme of compensation contemplated by the Constitution and the Workmen’s Compensation Law, and legislation tending toward regulation thereof is valid. (Watson v. Maryland, 218 U. S. 173; Steinback v. Metzger, 63 Fed. Rep. [2d] 74; People v. Ellis, 162 App. Div. 288; People v. Mulford, 140 App. Div. 716; People v. Lee, 151 Misc. Rep. 431; People v. Griswold, 213 N. Y. 92; Brown v. Shyne, 242 N. Y. 176; Matter of Sweeting v. American Knife Co., 226 N. Y. 199; Pepperman v. Overseas Shipping Co., Inc., 216 App. Div. 512; N. Y. Central R. R. Co. v. White, 243 U. S. 188; Roman v. Lobe, 243 N. Y. 51.) Chapters 258 and 930 of the Laws of 1935 do not offend against any provision of either the State or Federal Constitutions, but are enactments authorized by section 19 of article 1 of the State Constitution and are a proper exercise of the police power of the State. (Ives v. South Buffalo Ry. Co., 201 N. Y. 271; Matter of State Industrial Commissioner v. Newman, 222 N. Y. 363; Covey v. Honis Oyster House, 117 Conn. 282; Young v. Lichtenberg, 102 Misc. Rep. 154.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein, Joseph A. McLaughlin and Maurice H. Maizhin of counsel), for Industrial Commissioner of the State of New York, amicus curise.

    Medical services rendered to injured workmen are an integral part of the Workmen’s Compensation Law. They are as much subject to regulation and change as are the other provisions which make up the Workmen’s Compensation Law. (Dahlstrom Metallic Door Co. v. Industrial Board, 284 U. S. 594; Matter of Petrie, 215 N. Y. 335.) Chapter 258 of the Laws of 1935, an essential part of the Workmen’s Compensation Law, is a proper exercise of the police power, is neither arbitrary nor unreasonable, and does not contravene any constitutional provisions. (Steinbach v. Metzger, 63 Fed. Rep. [2d] 74; Dent v. West Virginia, 129 U. S. 114; Lawrence v. Board of Registration in Medicine, 239 Mass. 424; Matter of Jensen v. Southern Pacific R. R. Co., 215 N. Y. 514; New York Central R. R. Co. v. While, 243 U. S. 188; Roman v. Lobe, 243 N. Y. 51; Matter of Winfield v. N. Y. C. & H. R. R. R. Co., 168 App. Div. 351; Nebbia v. People, 291 U. S. 502; Matter of Scholle v. State, 90 Md. 729; Saratoga Springs v. Saratoga Gas Co., 191 N. Y. 123; Matter of McQueeney v. Sutphen & Myer, 167 App. Div. 528; Snyder v. Mass., 291 U. S. 97; Barrencotto v. Cocker Saw Co., 241 App. Div. 795; 266 N. Y. 139; Repka v. Fedders Mfg. Co., 239 App. Div. 271; 264 N. Y. 538; Covey v. Honis Oyster House, 117 Conn. 282; People ex rel.

      Nechamcus v. Warden, 144 N. Y. 529; Nebbia v. People, 291 U. S. 502; McLean v. Arkansas, 211 U. S. 539.)

      Lorenz J. Brosnan and Thomas H. Clearwater for Medical Society of the State of New York, amicus curise.

    The amendments to the Workmen’s Compensation Law which regulate the practice of medicine are constitutional. (Waston v. Maryland, 218 U. S. 173; Steinbach v. Metzger, 63 Fed. Rep. [2d] 74; People v. Ellis, 162 App. Div. 288; People v. Mulford, 140 App. Div. 716; People v. Lee, 151 Misc. Rep. 431.)
   Loughran, J.

In 1934 the Governor sent to the Legislature a special message declaring the necessity for further regulation of the medical treatment and care of employees in the administration of the Workmen’s Compensation Law (Cons. Laws, ch. 67). The subject had been investigated by a committee appointed by the Governor from the memberships of accredited local medical societies. A proposed bill embodying the joint recommendations of that committee and of the State Industrial Commissioner was commended to the consideration of the Legislature. The response was chapters 258 and 930 of the Laws of 1935, amending section 13 of the statute and adding thereto sections 13-a to 13-j. This case presents questions relating to the constitutional soundness of that legislation.

The mischief which the people of the State sought to eradicate was described by the Governor’s message in these words: In recent years, another evil, detrimental alike to worker and employer, has developed. It relates largely to the question of medical care and treatment of the injured claimants. In many instances, this treatment and care had degraded into a mere commercialized venture. Unscrupulous physicians and so-called medical clinics have operated in a way to exploit worker, employer and insurance carriers through prolonged treatment, padded bills and inferior professional service. Rebating, fee-splitting, organized solicitation of employees injured, and lifting of cases from doctors already treating them have been by-products of this commercialization.

So much of the remedy adopted by the Legislature as is now attacked may be sufficiently outlined as follows: No person shall render medical care under the law without authorization by the State Industrial Commissioner, except emergency (first aid) care; or care of a patient in a hospital by a member of its constituted staff. A duly licensed physician may be authorized by the Commissioner only upon the recommendation of the medical society of his county or of a medical board representing other duly licensed physicians or designated by the Commissioner. (§ 13-b, subd. 1.) Any duly licensed physician may to that end apply to the appropriate medical society or board and in the event he fail of recommendation may appeal to the Industrial Council of the Department of Labor (§ 13-b, subd. 2) which is empowered to recommend his authorization. (See Labor Law [Cons. Laws, ch. 31], § 10-a, subd. 4 [g].) In general an injured employee may select to treat him any physician authorized by the Commissioner. (§ 13-a [1].) The employer shall be hable for the payment of the expenses of the treatment. Fees for medical services shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of hying. Recourse to the employer for payment shall be had only under the statute. Payments shall in no case be less than the amounts fixed by a schedule of minimum charges and fees to be established by the Commissioner after inquiry and shall be made only to a physician or other lawfully qualified person permitted under the statute to render medical care. (§§ 13 [a], 13-f [1].) If the parties shall fail to agree as to the value of medical services, the value thereof "shall be decided by an arbitration committee of physicians whose composition is defined and whose decision is made conclusive. (§ 13-g, subd. 2.) In the case of persons injured outside the State the requirements respecting selection of authorized physicians shall be inapplicable. (§ 13 [b].)

When these provisions were in effect, the plaintiff, a duly licensed physician, at the request of the defendant, an employer, rendered medical care in a case within the statute. He sues for the alleged fair and reasonable value of his services. The complaint does not show him, to be a person authorized or otherwise entitled to receive payment in accordance with the law. For that reason, the pleading was dismissed by the Special Term as insufficient on its face. Affirmance followed in the Appellate Division. The case is here on an appeal permitted to the plaintiff by that court.

Plaintiff asserts that it is utterly inconsistent and, therefore, unreasonable for the State to declare a man to be a competent physician by licensing him to practice medicine and then to impose the additional requirement of a special authorization if the patient happen to be a workman victimized by accidental injuries arising out of and in the course of his employment. This amounts to saying that as among licensed doctors one must be taken to be in all cases as good a practitioner as another. We think the assertion is without support in the ordinary data of human experience, but if we are not supposed to know this to be so, then the presumption is that the Legislature inquired and found the need of special training or fitness for the treatment of compensable industrial injury and occupational disease.

An appropriate medical society or board may recommend authorization by the Commissioner if it deems the applicant duly qualified.” Plaintiff objects that the judgment thus committed is unlimited with the result that due process is denied, and that legislative power has been unlawfully delegated to non-governmental agencies. This criticism ignores other words of the statute which refute it. In an application for authorization, a duly licensed physician shall state bis training and qualifications ” and shall agree to limit bis professional activities under the law to such medical care as his experience and training qualify him to render.” He may “ present to the medical society or board evidences of additional qualifications at any time subsequent to his original application.” When an application is granted, such recommendation and authorization shall specify the character of the medical care which such physician is qualified and authorized to render.” (Workmen’s Compensation Law [§ 13-b, subd. 2].) There is here no unlawful delegation of power in violation of section 1 of article 3 of the State Constitution nor is the exercise of judgment so confined obnoxious to the Fourteenth Amendment to the Federal Constitution or section 6 of article 1 of the State Constitution. (Hall v. Geiger-Jones Co., 242 U. S. 539; People ex rel. Nechamcus v. Warden, etc., 144 N. Y. 529; Matter of Elite Dairy Products, Inc., v. Ten Eyck, 271 N. Y. 488.)

The provisions designed to control the amounts to be awarded for medical services are assailed as wholly unrelated to any legitimate end of the exercise of State power. We think these are warranted as police regulations. (See New York Central R. R. Co. v. White, 243 U. S. 188, 207.) The medical care which the employer must furnish is part of the statutory compensation of the workman. It may well have been conceived that the minimum fee requirement would effectively put a stop to unwholesome competition for opportunity to treat employees and that it also would attract the more skillful and experienced doctors into that field. Power exists to assure full delivery of workmen’s compensation to be awarded in money. (Mountain Timber Co. v. State of Washington, 243 U. S. 219.) Power to say that compensation in the form of medical care shall be adequate in quality is not essentially different. In the same view, there was warrant for the requirement of compulsory arbitration of the value of medical services. Settlement of that fact by the varying and uneven result of ordinary litigation would perhaps in the long run impair the grade of the medical care secured to those on whose lives and safety the common welfare depends. We cannot say that there is no real and substantial relation between these limitations on the privilege to practice medicine under the law and the ends sought to"be attained by the Legislature.

The exception for hospital patients and that for persons injured outside the State are denounced as arbitrary discriminations resulting in class legislation. But in one case the sufficiency of the treatment has the guaranty of quasi-official responsibility, and the other case is not fully within the control of the authorities of this State. Nor was the Legislature, acting within its proper field, bound to extend its regulation to all cases which it might properly reach. (West Coast Hotel Co. v. Parrish, 300 U. S. 379.)

Other objections of the plaintiff go to the validity of the amended statute under narrower commands of the Constitution of the State. It is urged that voluntary medical societies are in effect made new departments of the State government in violation of sections 2 and 3 of article 5, and that compulsory arbitration of the value of medical services runs against the right of jury trial guaranteed by section 2 of article 1. On these points it is enough to add that further discussion is foreclosed by the same fundamental law. Section 19 of article 1 thereof provides:

“ Nothing contained in this Constitution shall be construed to limit the power of the Legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment * * * by employers * * * either directly or through a State or other system of insurance or otherwise, of compensation for injuries to employees * * *; or for the adjustment, determination and settlement, with or without trial by jury, of issues which may arise under such legistion * *

The judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Pinch and Rippey, JJ., concur.

Judgment affirmed.


author: O’Brien, J.

text:
    The People of the State of New York ex rel. Fred Rothermel, Respondent, against Thomas H. Murphy, as Warden of Clinton Prison, Appellant.
    Argued April 19, 1937;
    decided May 25, 1937.

      John J. Bennett, Jr., Attorney-General (Caleb Candee Brown, Jr., Henry Epstein and Patrick H. Clune of counsel), for appellant.
    The relator must serve the time remaining unserved on the first sentence prior to the commencement of the service of the second term. (People ex rel. Atkins v. Jennings, 248 N. Y. 46; People ex rel. Brackett v. Kaiser, 209 App. Div. 722.)

      Jesse Perlmutter for respondent.
    The alleged violation of parole or commutation is a criminal offense punishable only by the judiciary under the provisions of criminal law. (Code Crim. Proc. §§ 696, 697, 698; People v. Bellinger, 269 N. Y. 265; People ex rel. Hirschherg v. Orange County Court, 271 N. Y. 151.) The relator was not accorded a hearing or a trial on the issue of delinquency. (People v. McQuade, 110 N. Y. 284.) Breach of condition was denied by the relator, was not charged in the return, and is not established by the record. (People ex rel. Atkins v. Jennings, 248 N. Y. 46.) The relator’s term expired in March, 1934. (People ex rel. Atkins v. Jennings, 248 N. Y. 46.)
   O’Brien, J.

Relator was convicted April 19, 1919, in Nassau county of robbery in the first degree and sentenced for a term of not less than ten nor more than twenty years. In March, 1924, the Governor conditionally commuted his sentence to imprisonment in Clinton Prison for a term of four years, ten months and fifteen days from May 1,1919. That commutation was granted upon the express condition that if relator should again be convicted of a felony committed between the date of his discharge and the date of the expiration of his full term, he should be deemed an escaped convict with respect to his commuted term and should be compelled to serve, in addition to the penalty to be imposed for the felony committed during that interval, the unserved portion of the commuted term. The Board of Parole on March 31, 1924, released him subject to the conditions imposed by the Governor’s commutation. November 5, 1925, relator, upon his plea of guilty, was again convicted of robbery in the first degree in the Court of General Sessions, New York County, and sentenced for a term of fifteen years in Clinton Prison. November 23, 1925, the Board of Parole held him as a parole violator “ for maximum less compensation before starting his other sentence ” for the felony for which he was convicted in New York county. He is now in the custody of the warden of Clinton Prison.

In his petition for a writ of habeas corpus relator alleges a right to be tried by a jury and relies upon the provisions of sections 696, 697 and 698 of the Code of Criminal Procedure. His writ was dismissed but the Appellate Division reversed and decided that the Parole Board was without power to commit under those sections as they then existed. In our opinion these parts of the statute apply only when some question of fact is presented in relation to violation of the terms of parole, commutation or pardon. (People. ex rel. Brackett v. Kaiser, 209 App. Div. 722; People ex rel. Atkins v. Jennings, 248 N. Y. 46, 52, 53.) Here there is no question of fact. The record of the Court of General Sessions evidencing his second conviction for felony, entered upon his plea of guilty, is conclusive proof of violation of his parole. In the language of the opinion in the Atkins case, a jury trial would constitute nothing more than an idle formality affecting no substantial right.”

The order of the Appellate Division should be reversed and that of the Trial Term dismissing the writ of habeas corpus should be affirmed and the relator remanded to custody.

Crane, Ch. J., Lehman. Hubbs, Loughran, Finch and Rippey, JJ., concur.

Ordered accordingly.


author: Crane, Ch. J.

text:
    The People of the State of New York, Respondent, v. Rose O’Gorman and William Matthias, Appellants.
    Argued April 29, 1937;
    decided May 25, 1937.

      J. Howard Carter and Paul L. Bleakley for appellants.
    The ordinance is void as an illegal infringement of the personal liberty guaranteed the individual by both the Federal and State Constitutions. (Connolly v. General Constr. Co., 269 U. S. 385; United States v. Cohen Grocery Co., 255 U. S. 81; United States v. Capital Traction Co., 34 App. D. C. 592; People v. Briggs, 193 N. Y. 457; People v. Grogan, 260 N. Y. 138; United States v. Willard, 8 Fed. Supp. 356; Matter of Stubbe v. Adamson, 220 N. Y. 459; People ex rel. Knoblauch v. Warden, 216 N. Y. 154; Safee v. City of Buffalo, 204 App. Div. 561; Anderson v. Steinway, 178 App. Div. 507; Matter of Jacobs, 98 N. Y. 98.)

      Leonard G. McAneny, Corporation Counsel {Harold T. Garrity of counsel), for respondent.
    The ordinance is not void as an arbitrary exercise of municipal police power. (Matter of Stubbe v. Adamson, 220 N. Y. 459; Safee v. City of Buffalo, 204 App. Div. 561; City of Syracuse v. Snow, 123 Misc. Rep. 568.) The ordinance is a valid exercise of police power and is not an infringement of the United States or the New York State Constitutions. (People v. Marx, 99 N. Y. 377; Noble State Bank v. Haskell, 219 U. S. 104; West Coast Hotel Co. v. Parrish, 300 U. S. 379; Chicago, B. & Q. R. R. Co. v. McGuire, 219 U. S. 549; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Euclid v. Amber Realty Co., 272 U. S. 365; People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429; Commonwealth v. Davis, 167 U. S. 143; Barbier v. Connolly, 113 U. S. 22; Jones v. Brim, 165 U. S. 180; Powell v. Pennsylvania, 127 U. S. 678; People v. Anderson, 355 Ill. 289; Pugsley v. Sellmeyer, 158 Ark. 247; Paramount Famous Lasky Corp. v. United States, 282 U. S. 30; Sugar Institute, Inc., v. United States, 297 U. S. 553.)
   Crane, Ch. J.

Rose O’Gorman and William Matthias were going through Yonkers on June 21, 1936, when they were arrested because of the clothes they had on or did not have on. The girl had on" white sandals, no stockings, yellow short pants and a colored halter, with a yellow jacket over it and no hat;” the boy or young man had on white sneakers, white anklets, short socks, yellow trunks, short pants, a blue polo shirt, brown and white belt, no hat.” The arresting officer thought they were ordinary hikers, we have to contend with each Sunday out in that section.” On making the arrest the officer said to them, “ Well, you haven’t got what we term 1 customary street attire,’ and haven’t a skirt on.”

The officer did his duty if the ordinance under which he was acting is legal, as the courts, not the policeman, determine these matters.

The ordinance of the Common Council of the city of Yonkers, approved July 18,1935, reads:

“ § 1. No person over the age of sixteen (16) years shall be permitted to appear in bathing costume or in any other than customary street attire upon any public street or thoroughfare in the City of Yonkers.
§ 2. The provisions of this ordinance shall not apply to persons engaged in athletic contests for which permission has been granted by the proper officials of the City of Yonkers.
“ § 3. Any person violating any provision of this ordinance shall be guilty of a misdemeanor and shall be hable to a fine not exceeding one hundred and fifty ($150) Dollars, or to imprisonment not exceeding thirty days, or to both such fine and imprisonment.”

As these defendants did not have on bathing costume that part of the ordinance which forbids appearance “ in any other than customary street attire ” is the law for the violation of which they were arrested and subsequently convicted.

Can the city pass such a law? Indecency on the street of course may be restrained; if people like to walk around naked they must stay in the house and not appear on the streets. Tastes may differ but we are ah agreed on this. When it comes to the kind and sufficiency of clothes one must wear to appear decently in public we of the law have generally left such matters to the good sense and force of public opinion. The law of the proper thing to do is not written in a book but rules most of our living. To meet the cases of persons who insist upon being conspicuous by exposing too much of their anatomy, it may be reasonable to prescribe that men and women shall cover themselves, at least when on the street. This ordinance in question, however, is not definite nor limited; in fact it is so vague and meaningless as to reach many harmless and insipid foibles. Indecency as commonly understood may be prohibited but this ordinance goes too far. No man or woman is obliged to wear the ordinary street attire.” People can dress as they please, wear anything, so long as they do not offend public order and decency. Customary, not exceptional, street attire has rather a drab appearance; if some desire to color it up a bit, where is the harm? All kinds of uniforms and special apparel for purposes of pleasure or advertising or the like may disfigure or adorn the highway, but freedom in these matters may not be unreasonably restrained, even if foolish. The Constitution still leaves some opportunity for people to be foolish if they so desire. Sometimes a little folly saves us from more serious trouble. Be this as it may, the ordinance is too vague to be legal. Even the policeman was in doubt about the customary ” feature as he did not arrest with these defendants the other young girl who was in long white pants. This court said through me in People v. Grogan (260 N. Y. 138):

Statutes which, create crimes must be definite in specifying conduct which is condemned or prohibited. They must afford some comprehensible guide, rule or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements.” (p. 145.)

This rule condemns this ordinance first, because people cannot be forced to wear customary street attire ” where other attire does no harm; second, because such terms are too indefinite to state a crime. The purpose of the ordinance probably is to prevent indecent exposure, such an appearance on the public streets as shocks the moral sensibilities of our communities. The ordinance to be legal should so state or else describe the costume or lack of it which is prohibited. The modern bathing strips may be harmless at the seashore. They might offend public order and decency on Broadway or any other public street.

As to each defendant, the judgments should be reversed and the information dismissed.

Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgments reversed, etc.