author: Pound, Ch. J. O’Brien, J., (dissenting).

text:
    Stillwell Theatre, Inc., Respondent, v. Sam Kaplan, as President of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Union, Appellant; Rosekay Amusement Corporation, Respondent, v. Sam Kaplan, as President of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Union, Appellant; Windsor Circuit Corporation, Respondent, v. Sam Kaplan, as President of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Union, Appellant.
    (Argued June 17, 1932;
    decided July 19, 1932.)

      Charles H. Kelby, Maurice Deiches and Abraham K. Kaufman for appellant.
    The means employed by defendant in picketing plaintiffs’ theatres were lawful. The picketing was peaceful and was not accompanied by any acts of violence, trespass or intimidation. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Nann v. Raimist, 255 N. Y. 307.) Defendant’s purpose in picketing plaintiffs’ theatres was to preserve and maintain the wage scale and working conditions which it had heretofore obtained for its members. Such a purpose is admittedly lawful and excused any injury to the plaintiffs. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Nann v. Raimist, 255 N. Y. 307; Steinkritz Amusement Corp. v. Kaplan, 257 N. Y. 294.) The contracts between the plaintiffs and the Empire State organization are not entitled to equitable protection. (Herzog v. Klein, 131 Misc. Rep. 816; Wilner v. Bless, 243 N. Y. 544.)

      William F. McNulty, Harold R. Medina and Joseph A. Teperson for respondents.
    In view of the valid, binding and subsisting contracts of employment which existed between the plaintiffs and the Empire State Union, the picketing conducted by the defendant was clearly illegal, and was, therefore, properly restrained. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Interborough R. T. Co. v. Lavin, 247 N. Y. 65; Nann v. Raimist, 255 N. Y. 307; Lumley v. Wagner, 1 DeG., M. & G. 604; Goldman v. Cohen, 222 App. Div. 631; Schlesinger v. Quinto, 201 App. Div. 487; Roosevelt Amusement Corp. v. Empire State Motion Picture Operators Union, Inc., 231 App. Div. 872; Unity Amusement Co. v. Empire State Motion Picture Operators Union, Inc., 231 App. Div. 873; Ribner v. Racso Butter & Egg Co., 135 Misc. Rep. 616.) Under the valid, binding and subsisting contracts of employment between the plaintiffs and the Empire State Union, the parties both acquired substantial property rights which the law will not permit third parties who have full and complete knowledge of the existence of these contracts, to impair or destroy. (Hornstein v. Podwitz, 254 N. Y. 443; Lamb v. Cheyney & Son, 227 N. Y. 418; Auburn Draying Co. v. Wardell, 227 N. Y. 1; Posner Co. v. Jackson, 223 N. Y. 325; Altman v. Schlesinger, 204 App. Div. 513; Schlesinger v. Quinto, 201 App. Div. 487; Piermont v. Schlesinger, 196 App. Div. 658; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229; Nann v. Raimist, 255 N. Y. 307; Interborough R. T. Co. v. Lavin, 247 N. Y. 65; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Wilner v. Bless, 243 N. Y. 544; Bossert v. Dhuy, 221 N. Y. 342; Roosevelt Amusement Corp. v. Empire State Motion Picture Operators Union, Inc., 231 App. Div. 872; Unity Amusement Co. v. Empire State Motion Picture Operators Union, Inc., 231 App. Div. 873; Carnation Photoplay Co. v. Basson, 216 App. Div. 769; Herzog v. Cline, 131 Misc. Rep. 816; Best Service Wet Wash Laundry Co. v. Dickson, 121 Misc. Rep. 416; Stuyvesant L. & B. Corp. v. Reiner, 110 Misc. Rep. 357; 192 App. Div. 951.)
   Pound, Ch. J.

These are labor cases in which injunctions have been granted at the suit of proprietors of moving picture theatres, enjoining defendant during the existence of contracts between the Empire State Motion Picture Operators Union, Inc., and each of the respective plaintiffs from doing any act or acts calculated to induce or cause a breach of such contracts; from picketing and patrolling the streets in front of or near the respective theatres, and from committing any act or acts which are calculated to or apt to harm, harass or embarrass the respective plaintiffs in the conduct of their business, and which are calculated to cause persons desiring to enter the theatres to refrain from so doing; from exhibiting any sign or signs and distributing any notices in front of or near said theatres; from suggesting to any person or persons the boycotting of plaintiffs’ business; from interfering in any manner above set forth or in any other manner or by any other means with the business, custom or trade of the plaintiffs, or making any false statements respecting the plaintiffs or the plaintiffs’ business; from accosting, coercing, intimidating or in any manner interfering with persons employed by the plaintiffs or seeking to enter their employ, from entering or continuing in such employment, or doing any other illegal act in reference thereto.

The word “ defendant,” as hereinafter used, refers to labor union Local 306.

The real controversy is between Local 306 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Union of the United States and Canada, affiliated with the American Federation of Labor, and a member of the State Federation of Labor and of the Central Trades and Labor Council of Greater New York, and the Empire State Motion Picture Operators’ Union, Inc., which is not affiliated with those organizations nor with any other labor union or body. Each plaintiff made a contract with the latter union whereby plaintiff is obliged to employ none other than members of that union as motion picture operators at such plaintiffs’ theatre, which contract ran from September 1, 1930, to August 31, 1931. Defendant picketed plaintiffs’ theatres with a sign which read: Owners of this theatre refuse to employ members of Motion Picture Operators Union Local 306, affiliated with the American Federation of Labor.” The picketing was peaceful; not accompanied by any acts of violence, trespass or intimidation and the sign truly stated the fact. Unquestionably defendant in picketing these three theatres was actuated by a desire to improve labor conditions as to wages, hours, number of employees and conditions of work, although incidental disadvantage to the employer might result. Resulting injury [from lawful picketing] is incidental and must be endured.” (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, 263.)

While the trial court made findings in all three actions that a sign printed in Jewish characters and carried by the pickets was misleading in that it conveyed the idea that union labor was not employed on the premises and also that the purpose of the picketing was in part to destroy plaintiffs business, the judgment was based solely on the ground that the picketing was illegal because its purpose was to induce or cause a breach of the contract between the plaintiffs respectively and the rival union. The Appellate Division, unanimously affirming the judgment, rested its decision on the same ground. It said: The evidence amply justified the finding that the Empire State Motion Picture Operators Union, Inc., is a bona fide labor union; that there were valid, binding and subsisting contracts of employment for definite periods of time between the plaintiffs and that union at the time the defendant conducted its picketing of the theatres of the plaintiffs, and that this picketing was conducted with knowledge on the part of the defendant of the existence of such contracts. Such orderly picketing with truthful placards was wrongful, although the means employed were otherwise lawful, because such acts were indulged in to attain a wrongful and, therefore, an unlawful purpose, to wit, the breach of contracts of employment for fixed and definite periods of time.” (235 App. Div. 738.)

The Court of Appeals has for many years been disposed to leave the parties to peaceful labor disputes unmolested when economic rather than legal questions were involved. The employer, if threatened in his business life by the violence of the unions or by other wrongful acts might have the aid of the court to preserve himself from damage threatened by recourse to unlawful means, but the right of the workmen to organize to better their condition has been fully recognized. The fact that such action may result in incidental injury to the employer does not in itself constitute a justification for issuing an injunction against such acts. The interests of capital .and labor are at times inimical and the courts may not decide controversies between the parties so long as neither resorts to violence, deceit or misrepresentation to bring about desired results. (National Protective Assn. v. Cumming, 170 N. Y. 315; Paine Lumber Co. v. Neal, 244 U. S. 459, 471; Bossert v. Dhuy, 221 N. Y. 342.) Acts must be legal but they may be legal or illegal according to circumstances.

The case of Hitchman Coal & Coke Co. v. Mitchell (245 U. S. 229) has often been cited as authority for the proposition that inducements of a breach of contract for a definite term of employment are illegal, even in the case of solicitation by groups of laborers, but, as the Supreme Court of the United States said of that case in American Steel Foundries v. Tri-City Central Trades Council (257 U. S. 184, 211), the unlawful and deceitful means used [to molest the plaintiff rather than to better the fortunes of the worker] were quite enough to sustain the decision of the court without more.” (Cf. Lamb v. Cheney & Son, 227 N. Y. 418.) It has never been held by this court that a labor union is without justification in fairly setting forth its claims in a controversy over terms and conditions of employment by sign, handbill or newspaper advertisement as a legitimate means of economic coercion, nor does the Hitchman case so hold, nor is that case a final authority on this point concerning the laws of New York. (Paine Lumber Co. v. Neal, supra.)

The law of the State of New York, as declared by this court, is perhaps more favorable to the defendant than that of the United States Supreme Court or other jurisdictions. The doctrine of the Hitchman case as applied to labor disputes by some of our lower courts has never been accepted here, if it has not been specifically rejected. A review of recent cases establishes this fact.

The question whether union tactics, merely persuasive in character, directed to the inducement of a breach of contract for a term are ever justified was expressly reserved in Exchange Bakery & Restaurant, Inc., v. Rifkin (supra, p. 267). The court, per Andrews, J., said: “ Here, however, we do not need to decide whether where the object of the act is to aid in a labor dispute, there is just cause or excuse for such interference with existing contracts, and if not how specific the contract must be, nor how substantial the term of employment contained therein to permit equity to intervene.”

In Interborough Rapid Transit Co. v. Lavin (247 N. Y. 65, 79) the court, per Lehman; J., said: “ This court has not yet been called upon to decide whether employees may lawfully be urged to make a choice in breach of a definite contract.” Of these cases it has been said: “ Thus, the judges of a great tribunal indicate their conviction that when dealing with legal problems enmeshed in dynamic social forces, courts ought to decide only the case before them and to remain open to all the wisdom the future may hold.” (“ The Labor Injunction,” by Frankfurter & Greene, p. 42.)

In Nann v. Raimist (255 N. Y. 307, 314) it was held that it was within the competency of a labor union to announce to the world its thought that another labor union was not dealing with its members in such a way as to promote the interests of organized labor and to persuade by peaceful picketing the employers of such labor to employ the members of the rival union.

In Steinkritz Amusement Corp. v. Kaplan (257 N. Y. 294), which was a companion case to these now before us, no opinion was written on this point. The court was divided. A maj ority held that a broad injunction restraining not only picketing but other acts as well should be modified by striking out the restraining provisions except as to picketing. By abuse of picketing, it was held that the union had forfeited the right to picket. Cardozo, Ch. J., and Lehman, J., were of the opinion that the injunction should be limited to picketing with an untruthful sign.” The injunction was greatly modified although the contract between employer and rival union existed. It was suggested in support of the injunction, as has been held in the cases now before the court, that the right of the defendant peacefully and truthfully to declare to the world that the business practices of the rival union were unjust and that theatres which patronized that union ought not to be patronized by the public had been lost because the plaintiff had a year’s contract with the rival union. The answer was that the public had no contract with the employer; that the union addressed itself to the public and that no one was asked to break any contract. The collateral result of the attempted persuasion of the public not to patronize the theatre while it employed the members of the rival union might make it unprofitable for the employer to go on with the contract, but to state fairly and truly to the public that the conduct of the employer is socially objectionable to a labor union is no persuasion to break a contract. This court has never undertaken to restrain such conduct, although it has had the opportunity. It has been at pains to avoid doing so. The cases cited supra disclose independence of the Hitchman doctrine and of the cases which follow and enlarge upon that doctrine. We would be departing from established precedents if we upheld this injunction. We would thereby give to one labor union an advantage over another by prohibiting the use of peaceful and honest persuasion in matters of economic and social rivalry. This might strike a death blow to legitimate labor activities. It is not within the province of the courts to restrain conduct which is within the allowable area of economic conflict.

The judgments should be reversed and the complaint dismissed in each case, with costs in all courts.

O’Brien, J., (dissenting).

Plaintiff Stillwell Theatre, Inc., maintains a motion picture theatre in Brooklyn. By contract with defendant Local 306 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Union, based on the principle of collective bargaining, plaintiff employed only members of that union as operators. Under that contract, defendant supplied four operators and two assistants at an aggregate weekly wage of $350. That contract expired August 31, 1930, and plaintiff declined to renew. Instead it contracted with another union, the Empire State Motion Picture Operators, whereby this union agreed, also on the principle of collective bargaining, to supply and has supplied to plaintiff’s satisfaction three operatives at an aggregate weekly wage of $155. This contract is with the union, not with individuals, and is for a fixed term. Plaintiff’s right to change the personnel of the operators supplied by the union does not authorize it to cancel its contract with the union. For an agreed duration, plaintiff may employ no one except members of this union. Each operative averaged thirty-one and one-half hours per week of six working days. Defendant had knowledge of the terms of this contract between its rival and plaintiff. Within a few days members of Local 306 began and continued to picket the theatre, displayed signs stating that its owners would not employ operators who were members of its union, stopped patrons of the theatre, caused crowds to collect in front of it and interfered with and injured its patronage. All these facts have been found by the trial justice and unanimously affirmed- by the Appellate Division. Also this finding has been unanimously affirmed: “ That the sole purpose of Local 306 in picketing the Stillwell Theatre was to induce the public not to patronize said theatre; to injure and destroy the plaintiff’s business and by pressure and coercion compel the plaintiff to breach the contract aforesaid between it and said Empire State Motion Picture ■ Operators Union, Inc., which will not expire until August ' 31, 1931.” On these findings of fact, which are supported by evidence, the Appellate Division unanimously affirmed the judgment enjoining defendant, during the continuance of this contract, from doing any act calculated to induce or cause a breach of it and from picketing and patrolling the streets in front of or near the theatre.

•The majority of this court believes that the real controversy lies between two unions. As I view the case, the essential dispute hinges upon the question whether plaintiff- as employer must become submissive to the demands of one of these unions or allow its business to drift to ruin. As long as any semblance of liberty of contract continues to be recognized by the law, it seems to me that a duty rests upon the courts to vindicate such a right.

The old agreement with defendant was more favorable to employees than this new contract with its rival, but the one now existing certainly cannot offend a reasonable sense of social justice. Conduct by an employer, whereby its employees have obtained steady employment, subsequent to August, 1930, at an average of eight dollars for a working day of five hours is truly far from unconscionable.

The lucid exposition of the reciprocal rights of employer and employee by Judge Andrews in Exchange Bakery & Restaurant, Inc., v. Rifkin (245 N. Y. 260) met the approval of every member of this court. Our unanimous concurrence respecting legal principles and disagreement by a minority concerning the application of those principles to the facts as construed by the minority is shown in Judge Crane’s dissenting opinion with which two of his associates agreed. All conceded that the hiring at will by the employer might be ended at any time by either party and, therefore, that no contract for a fixed term was involved. The duty of a court of equity to intervene or to refrain when a breach of contract has been induced in a labor dispute was not defined. The question was expressly left open. The right of unions to conduct strikes by lawful means for the purpose of promoting the interests of labor was freely recognized. In the language of the opinion, picketing connotes no evil but no crowds may be collected on or near the employer’s property. Freedom to conduct a business, freedom to engage in labor, each is like a property right, and to prevent repeated violations threatened or probable of property rights an injunction may be granted. Where unlawful picketing has been continued, where violence and intimidation have been used and where misstatements as to the employer’s business have been distributed, a broad injunction prohibiting all picketing may be granted. These are the principles expressed in the opinion in that case. In Steinkritz Amusement Corp. v. Kaplan (257 N. Y. 294, 297), wherein the doctrine of the Exchange Bakery case was applied, the picketing was found as a fact, unlike the case at bar, to have been accompanied by violence but, also unlike the case at bar, there was no finding that the sole purpose of the picketing was to compel plaintiff to breach its contract. An injunction was sustained by this court to the extent of restraining picketing of plaintiff’s premises, the exhibition of signs and the distribution of notices in front of them. Our mandate proceeded as far as the necessities of that case required; it afforded all practical protection to the plaintiff and conformed with the rule announced in the Exchange Bakery case. We decided all that was necessary for decision. Other provisions of the judgment at Special Term, very general in form, which were eliminated by this court, constituted, under the circumstances, nothing more than surplusage. Far from decreeing the right to picket peacefully for the sole purpose of inducing a breach of contract, the effect of our judgment was, as in the Exchange Bakery case, to leave the question open. All the security which, in the view of this court, was needed by that plaintiff was accorded. Theoretical discussion in an opinion by way of an essay and other elaborate provisions in the judgment would have been purely academic. Although the findings at bar are not identical with those in Reed Co. v. Whiteman (238 N. Y. 545), they are closely analogous and seem to require an application of the same rule. The coercive nature of defendant’s policy and acts is not dissimilar from that pursued in Auburn Draying Co. v. Wardell (227 N. Y. 1). Without an injunction, damage to this plaintiff would seem to be irreparable. The inference is required that the individual property right of freedom of contract, which is recognized, at least by words, in the Exchange Bakery case, would be compelled to succumb to a stronger collective force. Plaintiff would be confronted with a choice either of breaking its contract with defendant’s rival and compulsorily resuming relations with defendant or closing its theatre. In the event of reversal of this judgment and a consequent violation by plaintiff of its present contract and a renewal with defendant, the Empire State Union could proceed as defendant is found to have done in the present case, to stop patrons of the theatre, cause crowds to collect in front of it and picket plaintiff’s premises with signs denouncing plaintiff as the breaker of a union contract. It could do so for the sole purpose of destroying plaintiff’s business and disrupting an agreement for a fixed term by plaintiff and defendant. If we refuse relief against defendant’s coercive measures we would be bound impartially to do the same in respect to the weaker union. In such a conflict between these hostile organizations there is the gravest danger that plaintiff would become submerged. Reversal of this judgment might fairly be regarded as a recession in the direction of a relinquishment of this court’s equitable powers relating to the protection of property from threatened destruction.

Crane, Lehman, Kellogg, Hubbs and Crouch, JJ., concur with Pound, Ch. J.; O’Brien, J., dissents in opinion.

Judgments reversed, etc.


source: Caselaw Access Project

author: Kellogg, J.

license: Public Domain

text:
    P. Grassi & Bro., Inc., Respondent, v. Lovisa & Pistoresi, Inc., et al., Respondents, and New Jersey Fidelity and Plate Glass Insurance Company, Appellant, Impleaded with Others.
    (Submitted June 17, 1932;
    decided July 19, 1932.)

      Raiemond E. Dee for appellant.
    Under the contract the Seventy-third Street Corporation was an owner and the Sherman Corporation was a contractor within the meaning of the Lien Law. (McNulty v. Offerman, 221 N. Y. 103.)

      J. Charles Weschler, Sidney Jarcho, M. Carl Levine and Frank W. Harris for respondents.
    The Sherman Corporation was an agent for the Seventy-third Street Corporation in making its contracts with the lienors, and was not a contractor within the meaning of the Lien Law. (McNulty v. Offerman, 221 N. Y. 98.)
   Kellogg, J.

Sherman Square Studios Realty Corporation was the owner of premises in New York city known as 160 West Seventy-third street. Henry Cohen was the president of the corporation and its principal stockholder. He conceived a plan for the improvement of the premises by the erection of an apartment house building thereupon. As the first step toward this end Cohen caused a corporation to be organized under the name of 160 West Seventy-third Street Corporation. The certificate of incorporation provided that the capital stock should be $1,051,400; that the board of directors should consist of five members. Of the directors named in the certificate, one was a nephew of Henry Cohen and three others were employees of a firm of attorneys which acted throughout for Cohen and the Sherman Square Studios Realty Corporation. The new corporation was organized without capital paid in, and, for an extended period, issued no stock.

In April, 1928, within two weeks after its organization, 160 West Seventy-third Street Corporation entered into a written contract with Sherman Square Studios Corporation. By this contract the latter corporation agrees to convey to the former the premises. 160 West Seventy-third street, with the buildings erected or to be erected thereupon, and the former agrees to purchase the same. Sherman Studios agrees to erect upon the premises an apartment house in accordance with certain plans and specifications. The corporation, 160 West Seventy-third Street, agrees, in consideration of the conveyance of the premises and the erection of the building, to deliver to Sherman Square Studios the entire issue of its capital stock, viz., 10,514 shares of the total par value of $1,051,400. It further agrees to pay over to Sherman Studios the proceeds of all loans, not exceeding $1,051,400, which it may procure through mortgages upon the premises, and to execute and deliver to it all leases of apartments in the building which it might negotiate. Thereafter, on April 9,1928, Sherman Studios Corporation conveyed to the corporation 160 West Seventy-third Street the premises 160 West Seventy-third street. Thereupon Sherman Studios began the construction of the building.

In the course of construction the corporation, 160 West Seventy-third Street, borrowed more than $900,000, securing the loan with mortgages on the Seventy-third street property. The moneys were paid out in part to cancel underlying mortgages, and the balance was paid to Sherman Studios. In April, 1929, the building was completed, and upon its completion the corporation, 160 West Seventy-third Street, in fulfillment of its contract, issued and delivered to Sherman Studios, or its transferees, 10,514 shares of its stock, representing the entire capital of the corporation.

In the course of the construction, the plaintiff furnished the labor and materials for the plastering; the defendant Lovisa & Pistoresi the labor and materials for the marble installation; the defendant Jarcho Bros., Inc., the labor and materials for the plumbing. These were furnished to Sherman Studios under contracts made with it. After the corporation, 160 West Seventy-third Street, had paid over its shares of stock to Sherman Studios, and had otherwise complied with its contract, the material-men named filed mechanics’ liens against the premises to secure the payment to them of unpaid balances. Subsequently, upon the filing of undertakings, executed by the 160 West Seventy-third Street Corporation as principal and the defendant New Jersey Fidelity and Plate Glass Insurance Company as surety, conditioned for the payment of any judgment which might be recovered in actions to enforce the liens, the Supreme Court made an order discharging the Hens. In this action to enforce the claims of the plaintiff and the two materialmen who are defendants, judgment for the full amount of such claims has been granted in their favor.

It is provided in section 3 of the Lien Law (Cons. Laws, ch. 33) as follows: A contractor, subcontractor, laborer or material man, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor, shall have a lien for the principal and interest of the value, or the agreed price, of such labor or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this chapter.” It is provided in section 4 as follows: “ If labor is performed for, or materials furnished to, a contractor or subcontractor for an improvement, the lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon.” Obviously the corporation 160 West Seventy-third Street was an owner with whose consent the plaintiff and the two defendant lienors furnished materials and performed labor for the improvement of the real property of that corporation. Unless, therefore, Sherman Studios was a “ contractor,” within the meaning of section 4 of the Lien Law, such claimants acquired liens upon the premises for the full amount of their claims. On the other hand, if Sherman Studios were a contractor for 160 West Seventy-third Street Corporation, the claimants acquired no liens, for the reason that the latter corporation, at the time of the filing of the hens, had fully satisfied its contract with the former. The question is, therefore, whether or not Sherman Studios was in truth a contractor.”

The term ' contractor,’ when used in this chapter, means a person who enters into a contract with the owner of real property for the improvement thereof, or with the state or a municipal corporation for a public improvement.” (Lien Law, § 2.) The contractor whom the Lien Law has in view is one who would be so characterized in the common speech of men. He is one who, in the usual course of trade, has undertaken to improve the property of another. If he happens to have some interest in the land himself, his interest is an accident, and not the source and origin and occasion of his action.” (Per Cardozo, J., in McNulty Bros. v. Offerman, 221 N. Y. 98, 105.) In that case the facts considered were these: The owner of premises, upon which a department store had been erected, leased them to another. The lease contained provisions to the effect that the tenant might make certain alterations in the store of a character specifically described. The tenant agreed to make the alterations and the lessor agreed to contribute a substantial sum toward the performance of the work. The promise of the lessor was conditioned upon the performance of the work in the manner prescribed, and the prompt payment of all installments of rent. Material and labor, with which to make the improvements, were supplied to the tenant by various persons. At the conclusion of the work these persons, not having been paid in full, filed mechanics’ hens against the property. As the tenant had not made the alterations prescribed by the lease, and had not paid the rentals provided for, the lessor was released from the obligation to make contribution, and owed the lessee nothing. Therefore”, if the tenant were a contractor, within the meaning of the Lien Law, the hens filed were inoperative. It was held that the lessee was not a contractor, and that the hens bound the property in so far as the improvements made were those consented to by the owner-lessor.

On its face, the agreement between Sherman Studios and 160 West Seventy-third Street Corporation was not a contract between general contractor and owner, for the corporation 160 West Seventy-third Street, when the contract was signed, did not then own the title to the premises; nor was it “ a vendee in possession under a contract for the purchase of such real property.” (Lien Law, § 2.) Nor was Sherman Studios a person which had entered “into a contract with the owner of real property for the improvement thereof.” (Id.) On the contrary, the contract was one between vendor and purchaser, whereby, in addition to conveying the property, the vendor agreed to make improvements thereupon for the benefit and at the expense of the vendee. Thus, when the contract was made Sherman Studios was still the owner, and, since it could not contract with itself, could not have been a general contractor for the improvement. If the statutory definitions, therefore, be strictly interpreted, the property was not exempt from hens filed by those who supplied materials and labor to the vendor. On the other hand, if the statutory words of definition be interpreted according to the spirit and not the letter, then Sherman Studios and 160 West Seventy-third Street stand in worse case. The consideration for the promised conveyance from Sherman Studios to 160 West Seventy-third Street was the promised transfer by the latter to the former of all its capital issue. Thus, the former, the vendor, from being the owner of the legal title was to become the sole stockholder of the latter, the vendee. This metamorphosis, from sole legal owner to sole beneficial owner, changed the complexion of things not a whit. Obviously, the transaction had but one purpose: the creation of a general “ contractor ” and owner ” within the meaning of the statutory words; thereby to free the real estate from possible liens provided the putative owner, at the conclusion of the work of improvement, owed nothing to the putative contractor. We do not think that by any such subterfuge the Sherman Studios became in truth a general contractor; nor a contractor ” within the meaning of the Lien Law. Tenants in common, lessor and lessee, vendor and purchaser, all have interests in the land; but when once they have given their consent to an improvement, they cannot by any arrangement among themselves cut off the rights of lienors.” (McNulty Bros. v. Offerman, supra, p. 105.) In the view which we have expressed it is unnecessary to consider whether or not Sherman Studios and 160 West Seventy-third Street Corporation are one and the same person, although masquerading as separate entities under different corporate names.

The judgments should be affirmed, with costs.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ., concur.

Judgments affirmed.


text:
    Clark Plastering Company, Appellant, v. Seaboard Surety Company, Respondent.

      (Argued June 20, 1932;
    decided July 19, 1932.)

      Gustave B. Garfield and Maurice V. Seligson for appellant.
    The complaint on its face states a good cause of action upon a common-law bond, and the motion to dismiss under rule 106, subdivision 5, of the Rules of Civil Practice, was properly denied by the Special Term. (Baycourt Sales Co. v. Dickerson, 194 N. Y. Supp. 190; 202 App. Div. 731; Deutsch v. Textile Waste Merchandising Co., 212 App. Div. 681; Rockefeller v. Kellas, 222 App. Div. 368; Seaver v. Ransom, 224 N. Y. 237; Lawrence v. Fox, 20 N. Y. 268; Williston on Contracts, §§ 372, 402; Maltby & Sons v. Wade, 131 Misc. Rep. 90; Newark Concrete Pipe Co. v. National Surety Co., 131 Misc. Rep. 718.) The bond is a voluntary common-law bond which is not substantially in the form prescribed by the statute, does not conform to the statute and was intended to and must be interpreted independently of the statute. As such the provision for the giving of notice provided in the statute does not apply although if necessary such notice was in fact given. (Des Moines Bridge & Iron Works v. Marxen, 87 Neb. 684; United

      States Gypsum Co. v. Gleason, 135 Wis. 539; United Sheet Metal Works v. Dodge, 129 Cal. 390; People’s Lumber Co. v. Gillard, 136 Cal. 55; Smith v. Bowman, 32 Utah, 33; Hilton v. Universal Constr. Co., 202 Mo. App. 672; Carr v. Sterling, 114 N. Y. 566; Ehrlich v. Sklamberg, 65 Misc. Rep. 5; Sooy v. State, 38 N. J. L. 328; Emanuel v. McNeil, 87 N. J. L. 503; Burrall v. Acker, 23 Wend. 608; Ordinary v. Heison, 42 N. J. L. 15; State v. Such, 53 N. J. L. 351; Ditzel v. Bloch, 70 N. J. L. 261; Ordinary v. Cooley, 30 N. J. L. 181; City of Mount Vernon v. Brett, 193 N. Y. 276; Matter of Greathouse, 10 Fed. Cases, 1064; Goodman v. Bunzi, 102 N. Y. 223; Decker v. Judson, 16 N. Y. 439.) The Supreme Court had jurisdiction of both the parties and the subject-matter of the action. (Hutchinson v. Ward, 192 N. Y. 375; Squire v. Houghton, 131 Misc. Rep. 129.)

      Thomas Kiernan for respondent.
    The order appealed from dismissing the appeal to the Appellate Division from the order of the Special Term denying plaintiff’s motion to strike out the separate defense contained in the defendant’s answer is not appealable. (Civ. Prac. Act, §§ 588, 589; Stevens v. Central Nat. Bank, 162 N. Y. 253.) Dismissal of the complaint was proper. (Hutchinson v. Ward, 192 N. Y. 374; Marshall v. Sherman, 148 N. Y. 9; Christensen v. Eno, 106 N. Y. 97; Consolidated Copper Mines Corp. v. Nevada Consolidated Copper Co., 127 Misc. Rep. 71; Franklin Lumber Co. v. Globe Indemnity Co., 130 Atl. Rep. 608; Commonwealth of Pennsylvania v. Beals, 139 Misc. Rep. 785.) The motion to dismiss the complaint for failure to state a cause of action was properly granted. (Porter v. Kingsbury, 5 Hun, 597; 71 N. Y. 588; Wasserman v. Maston, 140 Misc. Rep. 847; Novak v. Equitable Casualty & Surety Co., 254 N. Y. Supp. 81.)
   Kellogg, J.

The complaint alleges that plaintiff is a foreign corporation; that it was at all times licensed to do business in the State of New York; that the defendant is a domestic corporation; that the defendant, in November, 1929, executed and delivered to the Board of Education of the city of Linden, New Jersey, its undertaking, a copy of which, marked Exhibit A, is attached to the complaint; that the plaintiff in February, 1930, entered into a contract with Walter A. Jensen, who had a contract with the aforesaid Board of Education for the erection of a school building; that the contract provided that the plaintiff would furnish all the material and perform all the labor necessary to complete the interior plastering, metal furring and lathing required in the erection of said building, for the sum of $19,750; that plaintiff fully performed his contract; that there remains a balance owing from Jensen of $1,546.02; that the defendant, by its undertaking given to the Board of Education, as aforesaid, among other things undertook that Jensen would “ pay all lawful claims of sub-contractors, material men and laborers ” in connection with the erection of the school building; that it further agreed that this bond shall be for the benefit of any sub-contractor, any material men or laborers having a just claim;” that by reason of these facts the defendant was indebted to the plaintiff in the sum of $1,546.02, which sum had not been paid, although denanded; A motion was made, under rules 106 and 107 of the Rules of Civil Practice, to dismiss the complaint. The motion was noticed prior to the service of the answer, and was based upon the complaint and an affidavit of Harold W. Rudolph. The affidavit set up that the undertaking given was a bond required to be given by the statutes of New Jersey in like cases; that these statutes provided that any person performing labor or providing material, in order to secure the advantages of the bond, must furnish to the sureties thereon, within eighty days after the acceptance of the work by the municipality, a statement of the amount due to such person; that the plaintiff had not furnished the defendant with such a statement within the time limited. An answering affidavit denied that the undertaking given was the statutory bond; that even if it were the plaintiff had sent the required notice to the defendant within the time limited. It appears from the order denying the motion that the only papers read upon the motion were the complaint and these affidavits. On appeal the order was reversed and the complaint dismissed.

Rule 106 provides for a motion to dismiss a complaint, where it appears on the face of the complaint: (1) That the court has not jurisdiction of the person; (2) that it has not jurisdiction of the subject-matter; (3) that the •plaintiff has not legal capacity to sue; (4) that there is another action pending, or (5) that the complaint does not state a cause of action. None of the first four defects appeared on the face of the complaint. As to the fifth, the complaint stated a cause of action on a common-law bond, not one given pursuant to statute. Of course, it was not necessary to plead compliance with a statute the existence of which in a foreign jurisdiction was not disclosed by the pleading. There could, therefore, have been no dismissal properly made under rule 106.

Under rule 107 a motion for dismissal may be made, on the complaint and affidavit,” stating facts tending to show the defects specified in rule 106 which are numbered from one to four; likewise, on the additional grounds, (5) that there is a judgment existing finally determining the same cause of action between the parties; (6) that the cause of action did not accrue within the time limited; (7) that the claim has been released; (8) that the contract is unenforceable under the Statute of Frauds, or (9) that the cause of action did not accrue because of the infancy or disability of the defendant. The fact that there is a foreign statute governing the contract with the provisions of which the plaintiff has not complied is not a defect which, under rule 107, may be established by affidavit to defeat a complaint. The complaint was, therefore, not subject to dismissal on the ground that the plaintiff had not given notice of its claim to the defendant, within eighty days of the completion of the work under the principal contract.

The only question which remains is whether or not facts appeared from the affidavit which tended to establish the second defect specified in rule 107, viz., that the court has not jurisdiction of the subject of the action.” Let us assume, without so deciding, that the statutes of New Jersey, asserted by the affidavit to exist, have application, for the reason that the bond given was a statutory and not a common-law bond. The question then resolves itself into this: May a remedy be granted in this State to enforce against a citizen thereof a promise, expressed in a bond, executed in a foreign State, pursuant to the requirements of a statute of that State? “ The courts of this state are open to all suitors and will enforce transitory rights of action, where the liability asserted is recognized by the common law, is contractual in its nature and is not violative of our public policy. This obligation of comity is only denied, as before suggested, where a foreign statute is sought to be enforced against a citizen, which has created a liability, or has granted a remedy, unknown to the common law, or contrary to our declared policy.” (Per Gray, J., in Hutchinson v. Ward, 192 N. Y. 375, at p. 381.) The cause of action here is upon a contract voluntarily made; it is not unknown to the common law; it is not contrary to our declared policy; and neither liability nor remedy has been supplied by a foreign statute. The complaint, therefore, was not defective and should not have been dismissed.

The judgment of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division. The plaintiff’s appeal from the order should be dismissed, with costs.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ., concur.

Judgment accordingly.


author: Pound, Ch. J.

text:
    The People of the State of New York ex rel. Frank Steckler, Appellant, v. Warden of City Prison, Respondent.
    (Argued June 2, 1932;
    decided July 19, 1932.)

      Daniel H. Prior and Bernard Fliashnick for appellant.
    The Board of City Magistrates had no authority to create a Commercial Frauds Court. (People v. Fuchs, 215 N. Y. 725.)

      Thomas C. T. Crain, District Attorney (Le Roy Mandle of counsel), for respondent.
    The Commercial Frauds Court of the Magistrates’ Court of the City of New York was properly created by resolution of the Board of City Magistrates passed under and by virtue of section 70 of the Inferior Criminal Courts Act. (People v. Johnson, 187 N. Y. 319; People ex rel. Unger v. Kennedy, 207 N. Y. 533; People ex rel. Sexton v. Warden, 216 App. Div. 223; 243 N. Y. 549; Deisel v. Gaynor, 141 App. Div. 636.)
   Pound, Ch. J.

On March 4, 1931, relator appeared before one of the City Magistrates’ Courts of the City of New York, known as the Commercial Frauds Court, Borough of Manhattan, for a preliminary examination on a charge of having violated Penal Law, section 1293-b, in that he gave a false and fraudulent financial statement relative to the condition of Poice Fair Brassiere Company, of which he was president, and thereby secured credit from the complainant Ansonia O. & A. Co. After such hearing he was held by the City Magistrate for trial in the Court of Special Sessions. He sued out a writ of habeas corpus attacking the lawful creation and existence of the Commercial Frauds Court. The writ was dismissed at Special Term. The order dismissing the writ was unanimously affirmed by the Appellate Division.

The only question before this court is whether the magistrate sitting in the Commercial Frauds Court had jurisdiction to hold relator for trial. (People ex rel. Doyle v. Atwell, 232 N. Y. 96.)

Under the provisions of the Inferior Criminal Courts Act of the City of New York, section 70 (L. 1910, ch. 659, as amd., L. 1915, ch. 531, § 19), the Board of City Magistrates may provide for holding in any borough such special city magistrates’ courts or courts of special sessions for the trial of specified classes of offenses or offenders, and to be held at such times and places, as they shall determine.”

Acting under this authority the Board of City Magistrates had on December 16, 1930, authorized a special court to be known as the Commercial Frauds Court, Borough of Manhattan, such court to hear cases involving commercial fraud and such court to be held at such time and place as shall be designated by the Chief City Magistrate.” Appellant contends that the Board of City Magistrates had no authority to create such a court for the purpose of examining the case and holding the accused for trial; that section 70 authorized the Board to make provision for the trial of specified classes of cases only and that the word “ trial ” does not include the preliminary hearing before the magistrate.

The meaning of the word “ trial ” as a law term depends on the connection in which it is used (Century Dictionary). In the summary of contents of the Code of Criminal Procedure (§§ 388-454) “ trial ” covers only so much of a criminal prosecution as begins with the opening of the case to the jury and ends with the verdict; the actual trial of the defendant by the jury. It does not include the information, arrest, examination, indictment, arraignment, plea, formation of the trial jury or sentence. To like effect are many cases. (United States v. Curtis, 4 Mason, 232; Carpenter v. Winn, 221 U. S. 533; State v. Bergman, 37 Minn. 407; State v. Bilboa, 190 Pac. Rep. 248; Commonwealth v. Soderquest, 183 Mass. 199.) These cases for the most part construe statutes like our Code which cover the entire field of criminal procedure. They mark the separation of a criminal case into its component parts.

We are not bound to accept this definition if it is not in keeping with the purpose of the statute before us and another sensible meaning may be given to the word. It may be given a meaning broad enough to include the examination of criminal cases by a court in all their stages. (State v. Nash, 7 Iowa, 347.)

The general jurisdiction of the city magistrates is defined by section 72 of the Inferior Criminal Courts Act as follows: The chief city magistrate and the city magistrates of the city of New York are magistrates within the meaning of the provisions of the code of criminal procedure and the penal law, and city magistrates’ courts are police courts within the meaning of the provisions of the code of criminal procedure and the penal law.” They try petty offenses and hold for the Special Sessions for trial in other cases. Obviously they could not, under section 70, provide for the trial only of any case if the word “ trial ” is to be given such a limited technical meaning as would exclude information, arraignment, plea and sentence. To give any effect to the statute a non-technical meaning must be given to a technical word and the word must be construed to include all that leads up to and follows a trial in a City Magistrate’s Court of a case which the court had jurisdiction to try. This much seems to be conceded but it is urged that we cannot go further and include the preliminary hearing and holding for trial at Special Sessions without violating the declared meaning of the Legislature. The cardinal rule for the construction of legislative acts is to ascertain the intent of the Legislature. When that is determined the language must, if possible, be construed to make the intent effective. (Farmers’ Bank v. Hale, 59 N. Y. 53; River Wear Commissioners v. Adamson, 2 A. C. 743, 763-765; 103 Park Ave. Co. v. Exchange Buffet Corp., 242 N. Y. 366, 374.) It may be better to defeat the object of the act than to guess at the intention of the Legislature. (King v. Barham, 8 Barn. & C. 99.) Here, however, we have the legislative intent revealed in the language of chapter 537 of the Laws of 1932, amending section 70 of the Inferior Criminal Courts Act to read as follows: The board of city magistrates may provide for holding in any borough such special city magistrates’ courts or courts of special sessions for the arraignment, examination, hearing, trial or determination of specified classes of offenses or offenders, and to be held at such times and places, as they shall determine.” Technical language is thus substituted in the corrective act for non-technical language and the intention to provide for the creation of a special City Magistrate’s Court to act like any other Magistrate’s Court in a specified class of cases is clearly expressed.

The order should be affirmed.

Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur.

Order affirmed.


author: Hubbs, J.

text:
    The People of the State of New York, Respondent, v. Harry Cashin, Appellant.

      (Argued June 13, 1932;
    decided July 19, 1932.)

      James D. C. Murray, Sidney S. Meyers, Irving Greenberg and Daniel Kirchman for appellant.
    The verdict was against the weight of credible evidence. (People v. Arata, 255 N. Y. 373; People v. Fiori, 108 N. Y. Supp. 416; Osborn v. Seligman, 81 N. Y. Supp. 346; People v. Speckler, 255 N. Y. 408; People v. Cassidy, 146 N. Y. Supp. 15; People v. Smith, 7 N. Y. Supp. 841; People v. Mayer, 117 N. Y. Supp. 520; People v. Moyer, 174 N. Y. Supp. 321; People v. Allocco, 170 N. Y. Supp. 881; Moller v. Moller, 115 N. Y. 466; McCarthy v. McCarthy, 143 N. Y. 235; People v. Eng Hing, 212 N. Y. 381.)

      Thomas C. T. Crain, District Attorney (Robert C. Taylor of counsel), for respondent.
    The People’s case was fully proved. (People v. Roper, 259 N. Y. 170; People v. Taylor, 138 N. Y. 398; People v. Egnor, 175 N. Y. 419; People v. Cohen, 223 N. Y. 406; People v. Rodawald, 177 N. Y. 408; People v. Lytton, 257 N. Y. 310.)
   Hubbs, J.

The defendant has been convicted of murder in the first degree. It is charged that he was one of two bandits who participated in a hold-up in a speakeasy at No. 49 Lexington avenue, New York city. The defense was an alibi. The principal question for determination in this court is whether the jury was justified on the evidence in finding beyond a reasonable doubt that the defendant was present and participated in the hold-up.

At about eight o’clock in the evening of February 19, 1931, there were four men in a speakeasy at No. 49 Lexington avenue. Ponzer was the bartender. Goldstein was the proprietor. White and Fieldburg were customers. There was also present a woman twenty-four years of age who went under the assumed name of Gladys Clayton. Ponzer was behind the bar. The other four individuals were in a room adjoining the barroom. The three men were engaged in playing a game of cards and the woman was sitting at the table watching the game.

At that time two men entered the barroom and ordered beer. Shortly thereafter they directed the occupants of the room to hold up then hands and covered them with their revolvers. While one of the bandits was taking the personal property from the persons of the men present, two detectives, Christopher Scheuing and Dominic Pape, entered the barroom. They were commanded by the bandits to go into the room where the card table was and were told that they were covered. In obedience to the command they walked through the barroom into the adjoining room, when the detective Pape, with the courage characteristic of most police officers, suddenly pulled Ms revolver and commenced shooting. Officer Scheuing had on Ms overcoat and gloves and did not succeed in pulling Ms gun, but with the same courage displayed by Pape he made an attempt to seize one of the bandits, but either fell or was shot before he reached him. As a result of the affray, Officer Scheuing and one of the bandits were killed. One of the bandits escaped and it is charged that the defendant is the one.

While the bandits were holding up the occupants and before the detectives entered, another woman known as June Clayton entered the barroom. She was forced into the sitting room with the other occupants. Immediately after the affray, all those who were present were taken to the police station. The dead bandit was identified as Albert Checchia. During the previous year the defendant had worked for a short time for Checchia as a truck driver. Between eleven and twelve o’clock that night two detectives went to the home of defendant at No. 120 Tenth avenue. While they were on the street near Ms home, the defendant arrived in a taxicab. He was taken by the detectives to the police station and questioned in an effort to find out who Checchia’s companion was. While he was in the police station, all of the others who were in the speakeasy during the affray were also present. None of them identified the defendant as the bandit who had escaped. After being questioned, he was permitted to go. He told the police officers that he did not know who was with Checchia and did not know anything about the hold-up; that he had been calling on a young lady by the name of Rose O’Donnell, with whom he had kept company for about two years.

About two weeks later, Detective Pape called at Ms house and he was asked to go to the police station and told that the lieutenant wanted to speak to him. He went there and was questioned again as to who was with Checchia on February 19th, and was again permitted to go. On April 6th his mother informed him that Detective Pape was looking for him and that District Attorney Cohen wanted to see him the next morning at ten o’clock. The next morning, at the time stated, he went to see District Attorney Cohen and was placed under arrest. During all the time from February 19th, until arrested, he had been at home, and on all occasions when requested had gone to the District Attorney’s office and been questioned. There is no evidence that he made any attempt to escape.

On different occasions before the trial, Goldstein, White, Fieldburg and Ponzer refused to identify the defendant as the escaped bandit. Upon the trial they were called as witnesses and persisted in stating that they were unable to identify the defendant as the man who was with Checchia engaged in the hold-up. Detective Pape was called as a witness and he testified that he could not identify the defendant although he stated that he resembled the man who escaped. The woman known as Gladys Clayton stated in the police station and in the District Attorney’s office that she could not identify the defendant as the escaped bandit. Not until April 7th, 1931, about seven weeks after the commission of the crime, did this witness state that the defendant was the man who escaped. She was called as a witness in the Magistrate’s Court and testified that she could not say that the defendant was one of the men engaged in the hold-up. Upon this trial, she stated that she had testified falsely in the Magistrate’s Court. She was the only witness who attempted to identify the defendant as the bandit who escaped. If the conviction of the defendant should be sustained, it must be upon her testimony.

j> The defendant at the time in question was nineteen years of age; was a bricklayer by occupation and had never been convicted. He testified that on the night in question he called upon Rose O’Donnell, reaching her home about twenty minutes of eight o’clock and remaining until after eleven o’clock. Rose O’Donnell corroborated that testimony. Her aunt, Rose Grady, with whom she lived, testified that she saw the defendant at her home where Rose O’Donnell was present, and had a conversation with him, about quarter-past eleven, on the night of February 19, 1931; that he was not nervous and did not act out of the ordinary and that he left her house about eleven-thirty. Irene Kennedy, a married sister of the defendant, testified that she saw him between seven and seven-fifteen p. m! when he left the house and that he said he was going to the home of his lady friend, Rose O’Donnell. She also testified that she saw him again that night between eleven-forty-five and twelve o’clock.

Norman Feingold testified that he was a taxi driver, married and lived with his family; that on the 20th of February he read in a newspaper that a shooting had taken place at No. 49 Lexington avenue, and he recognized a picture in the paper as being that of one of two men whom he had driven to those premises the night before. The picture was that of the deceased bandit, Checchia. He mentioned the fact to someone - and the next day Detective Pape came to see him. He was taken to the police station by the detective and asked to identify the defendant, who was present. He told the police officers that the defendant was not the man who was in company with the deceased man Checchia in his taxi. He testified that between eight-thirty and nine p. m. on February 19th, at Twenty-third street and Tenth avenue, Checchia and another man walked over to his cab and directed him to drive them to 49 Lexington avenue. He drove them there and they got out of the cab and paid the fare. One of the men was Checchia, whose picture he saw in the paper the next day. He testified that he had had a good look at both of the men; that Checchia got into the cab while the other man went to purchase some cigarettes. After he returned from purchasing the cigarettes, he walked over to the cab and told the witness to take him to 49 Lexington avenue. The witness stated that the defendant was not the man who was in his cab with Checchia, and whom he let out at 49 Lexington avenue.

Character witnesses were called by the defendant who testified to his reputation in the community as that of a peaceful, law-abiding citizen. Different witnesses referred to the man who escaped as a man about twenty-five to thirty years of age, a husky'fellow with a dark complexion, either an Italian or a Jew. The defendant is an Irishman, and not of a dark complexion.

Detective Pape immediately after the affray gave the police department a description of the bandit who escaped. He described him as twenty-four years old, five feet seven or eight inches high, weighing about 145 pounds, and that he wore a mixed brown suit and blue overcoat and light Fedora hat; that he had a dark complexion. He even stated the color of his shoes. It should be borne in mind that this officer was a trained observer. He had been a detective for over six years. He was able, from what observation he had, to give a detailed description of what the man wore, his weight and age, and that he was of a dark complexion. Still, within four hours after the affray when confronted by the defendant, he could not say that he was the man who escaped. The defendant when arrested wore a gray overcoat. He and Rose O’Donnell testified that he did not have any other overcoat. Detective Pape stated that the man who escaped wore a blue overcoat.

It is a fair inference from the evidence that the man who escaped was hit by one or more bullets from Detective Pape’s revolver. Officer Pape testified that when he shot at him he fell against the bar. There is no evidence that the defendant on that night within four hours after the shooting showed any evidence of being wounded. There are various discrepancies in the testimony of the witness Gladys Clayton upon minor points. It is undisputed that she refused to identify the defendant on different occasions and testified in the Magistrate’s Court that she did not know whether he was the man who escaped. She is a self-confessed perjurer and common prostitute. She testified that she had been working the speakeasy for nine months prior to the killing. The woman known as June Clayton was not called as a witness by the District Attorney, although she was present and had the same opportunity to observe as those who were called as witnesses. It is conceded that she was present in the court house in the charge of a police officer. The explanation of the District Attorney for not calling her was that she was unable to identify the defendant as the man who escaped. She should have been called.

In an affidavit made upon a motion for a new trial on the ground of newly-discovered evidence she swore that the defendant was not the man who escaped. On the record before us we feel that the ends of justice require that the defendant should have a new trial. While we are satisfied that the trial court was justified in its discretion in denying the motion made by the defendant for a new trial upon the ground of newly-discovered evidence under the well-established principles governing the decision of such a motion, still our feeling that this is a case where this court should grant a new trial is strengthened by disclosures made in the affidavits used upon that motion and facts testified to before the court upon that hearing. It is not the duty of this court to constitute itself a jury and determine from an examination of the printed record whether the defendant is guilty. That was the province of the jury. If the evidence in a case presents a question of fact, and there is sufficient evidence fairly to justify a jury in finding that a defendant’s guilt has been established beyond a reasonable doubt, this court cannot disturb the jury’s finding. Any other rule would place upon the court a duty and burden too heavy to bear. The general principle is firmly established. (People v. Roper, 259 N. Y. 170; People v. Cohen, 223 N. Y. 406; People v. Lytton, 257 N. Y. 310.)

The converse of the rule is also well established. That a record discloses some evidence which constitutes a question of fact which in the first instance must be submitted to a jury, does not permit us to close our minds to the fact that such evidence may not be sufficient to justify a jury in finding the issue in favor of the People beyond a reasonable doubt.

“It is not sufficient * * * that there be some evidence from which the jury could have found a verdict against the defendant.” (People v. Guadagnino, 233 N. Y. 344, 349.)

We are required by statute to grant a new trial where the judgment is death, if we are satisfied that the verdict is against the weight of evidence or that justice requires a new trial. (Code Crim. Pro. § 528; People v. Becker, 210 N. Y. 274; People v. Driscoll, 107 N. Y. 414; People v. Spickler, 255 N. Y. 408.)

We are satisfied that the ends of justice require a new trial in this case.

The judgment of conviction should be reversed and a new trial ordered.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur.

Judgment of conviction reversed, etc.


author: Crane, J.

text:
    Julia E. Buell, as Administratrix of the Estate of Charles E. Buell, Deceased, Appellant, v. Utica Gas and Electric Company, Respondent.

      (Argued June 20, 1932;
    decided July 19, 1932.)

      W. R. Pratt for appellant.
    The Appellate Division erroneously held that the defendant owed no duty to the owner or persons lawfully on the railroad siding over which defendant transmitted 44,000 volts of electricity in bare wires. (Wells v. Tolman, 156 N. Y. 636; Bakeman v. Talbot, 31 N. Y. 366; Burrows v. Livingston Niagara Power Co., 217 App. Div. 206; 244 N. Y. 548; Adams v. Bullock, 227 N. Y. 208; City of Henderson v. Ashby, 14 A. L. R. 1018; Van Leet v. Kilmer, 252 N. Y. 454; Braun v. Buffalo General Electric Co., 200 N. Y. 484; City of New York v. Interborough Co., 125 App. Div. 437; 194 N. Y. 528; Bergen v. Morton Amusement Co., 178 App. Div. 400; 226 N. Y. 665; Spies v. Damm, 54 How. Pr. 293; Tobias v. Cohn, 36 N. Y. 363; Speich v. International Ry. Co., 219 App. Div. 626; Constantino v. Watson Contracting Co., 219 N. Y. 443; McLean v. Studebaker Bros. Co., 221 N. Y. 475.) The Appellate Division erroneously held that the employer of the deceased was bound to adjust his use of the land to the defendant’s use of its easement. (Booth v. R.,W. & O. R. R. Co., 140 N. Y. 268; Barber v. Hudson River Telephone Co., 105 App. Div. 154.)

      Arthur J. Foley for respondent.
    The Appellate Division rightly held that in view of defendant’s recorded right of way deed and its possession thereunder, it was under no duty, as to plaintiff’s intestate and his employer, to raise its wires. (Pope v. O’Hara, 48 N. Y. 446;
      Adirondack Power & Light Corp. v. Evans, 226 App. Div. 490; Haight v. Littlefield, 147 N. Y. 338; Harris v. Curtis, 139 App. Div. 393; Onthank v. L. S. & M. S. R. R. Co., 71 N. Y. 194; Dexter v. Beard, 130 N. Y. 549; Nichols v. N. Y. & Penn. Tel. & Tel. Co., 126 App. Div. 184; Herman v. Roberts, 119 N. Y. 37; Hickok v. Auburn L., H. & P. Co., 200 N. Y. 464; Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86; Troidle v. Adirondack P. & L. Corp., 252 N. Y. 483; Robbins v. Minute Tapioca Co., 236 Mass. 387; Bruso v. Eastern States Exposition, 168 N. E. Rep. 206.) Defendant was not negligent. (Magee v. N. Y. Tel. Co., 213 N. Y. 232; Troidle v. Adirondack P. & L. Co., 252 N. Y. 486; Heskell v. Auburn H., L. & P. Co., 209 N. Y. 86; Bruso v. Eastern States Exposition, 168 N. E. Rep. 206; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339.) The negligence of the employer of plaintiff’s intestate in the continued operation of the crane with knowledge of the dangers involved was the proximate cause of his death. (Magee v. N. Y. Tel. Co., 213 N. Y. 232; Leeds v. N. Y. Tel. Co., 178 N. Y. 118; Malatesia v. Atlantic City & S. R. Co., 96 Atl. Rep. 54; Stackpole v. Pacific G. & E. Co., 186 Pac. Rep. 354; Boudreaux v. Louisiana P. & L. Co., 135 So. Rep. 90.)
   Crane, J.

The plaintiff’s intestate, Charles E. Buell, was electrocuted while standing in a railroad car on a siding underneath the defendant’s high power transmission wire. The "forty-foot boom of a derrick apparently had struck the wire transmitting the electricity through Buell’s body. A verdict of $5,000 was set aside by the Appellate Division and the complaint dismissed.

The question on appeal turns on the duty which the defendant owed to the deceased. That the wire was extremely dangerous is apparent from the fact that it carried 44,000 volts of current.

On the 8th day of October, 1919, Charles A. Saxton, of Washington Mills, and others, as owners, granted by deed to the Utica Gas and Electric Company, of Utica, N. Y., the right, and. privilege to erect and maintain an electric power transmission line or lines and to transmit electricity and electric current upon and across the lands of the party of the first part, situate in the Town of New Hartford, County of Oneida, and State of New York, together with the right to enter upon said premises and transport thereon all poles, towers or other supports, wires, cross-arms, insulators and all other material necessary and proper to set said poles, towers or other supports and to string all wires thereon suitable and proper to constitute a proper and suitable electric power transmission fine or fines with the right to inspect, operate and to repair and maintain same with necessary poles, supports, wires and guys.

Said right of way, being a strip of land sixteen and one-half (16½) feet wide, and about thirty-eight (38) rods in length, the centre fine of which is described as follows: Beginning at a point in the division fine between lands of J. Douglas and lands of party of the first part at an iron pipe distant 8.25 feet westerly from the westerly division fine of the Delaware, Lackawanna and Western Railroad Company, and running thence S. 5 degrees 00' W. 659.5 feet; thence in a straight fine 400 feet to an iron pipe in the division fine between lands of party of the first part and lands of James Coupe, distant 8.25 feet westerly from the westerly right of way fine of the Delaware, Lackawanna and Western Railroad Company.

“ The party of the second part, its successors or assigns, is also hereby given and granted the right and privilege to cut any brush, trees or branches, standing, or being within fifty (50) feet of the center fine of the above described right of way. * * * ”

Clare and Jones became the owners in 1922 of the property, and in 1924 had a railroad siding built on the westerly side of the railroad tracks, which connected with the Delaware, Lackawanna and Western railroad. That railroad ran north and south, and this side, or spur track, branched off in a southwesterly direction running diagonally —• slantwise — under the defendant’s wires. The spur track, therefore, was not under the wires at all points; it crossed under the wires and was thus directly beneath the wires at only the crossing point or angle. The spur track extended for some distance on both sides of the wires. Before the spur track was installed, the wires had been raised, at the expense of the railroad, to the height of twenty-nine and one-half feet above the siding. We may assume, for it is not questioned, that this height was sufficient to render the place safe for all railroad purposes; for instance, a man standing in a box car underneath the wires, could not lift any beam which was long enough to reach up twenty-four or twenty-five feet into the air. Therefore, there was no reasonable likelihood of anybody striking this wire in lifting things off of the box cars.

The electric company, therefore, had no reason to anticipate that the position of its wires would constitute a danger to persons using the siding, the railroad or the adjoining property, in the usual and customary way. Even with an easement or right of way granted to it by deed, the defendant would be under a duty to place its high tension transmission wires out of danger to those who would be in the vicinity using adjoining property in a way that could be reasonably anticipated. Such was Braun v. Buffalo General Electric Co. (200 N. Y. 484).

This siding, however, became dangerous solely because a contractor, Law Brothers Contracting Corporation, had stationed a movable crane with a beam forty feet in height near to or at the crossing. This contractor was building a roadway near the property and was storing materials near-by. It used the crane to lift the materials out of the box car. As the beam swung near to the wires it was apparent that if the wires were touched somebody would be killed. All realized the danger. The electric light company had full notice and examined the place Law Brothers Contracting Company knew the danger and cautioned its men. Buell knew the danger and signaled for the boom to stop three feet from the wire. Under these circumstances, with knowledge upon the part of every one, where rested the duty to avoid the danger? To us it seems apparent that it rested upon the contractor. This contractor selected the place and the site to do the work; it was a dangerous place; the contractor should have made it safe by either moving the cars beyond the crossing, shifting its plant, or else by arrangement with the electric company to lift its wires. This the company could easily have done; it was done the day after Buell’s death, by erecting higher poles. This took but a few hours. The electric light company never refused to do it, but insisted upon pay for making the change. The contractor would not wait, but went on with the work.

As the wires (and this is the point) were reasonably safe for all usual and customary user of the siding or spur track, and were out of reach of any apparent danger —• apparent from ordinary use —• the company was not bound to move its wires because of some extraordinary, special and temporary use being made of the crossing by a contractor. No doubt the Public Service Commission or the courts could have required a temporary removal for another public service user, such as the building of a crossing, or the installation of telegraph wires or a railroad. The electric company, however, did not refuse to accommodate itself to the contractor’s use, even if we consider his work in constructing a road crossing as public work. The contractor should have waited until the wires were raised, or have arranged to pay for the change, and not have proceeded in the face of such tremendous danger.

The judgment should be affirmed, with costs.

Pound, Ch. J., Lehman, Kellogg, O’Brien and Hubbs, JJ., concur; Crouch, J., not sitting.

Judgment affirmed.


author: Per Curiam.

text:
    In the Matter of the Accounting of Charles M. Burrows et al., as Executors of Lorenzo Burrows, Deceased, Respondents. Edwin S. Burrows et al., Appellants; Charles M. Burrows et al., Respondents.
    (Argued June 6, 1932;
    decided July 19, 1932.)

      George B. Barrell for Edwin S. Burrows et al., appellants.
    The use of the word “ heirs ” should be interpreted as substitutional. (Matter of Evans, 234 N. Y. 42; Matter of Kidder, 121 Misc. Rep. 285; Matter of Murphy, 165 App. Div. 783; 215 N. Y. 707; Whitman v. Terry, 196 App. Div. 282.)

      Burroughs A. Strickland for Lorenzo Burrows, 3rd, appellant.
    The will and codicils should be construed together as a whole. The will and codicils clearly show that it was the testator’s intention to give a one-third of his residuary estate to the family of his deceased son, and this intention should be carried out for the reason that intention is the final test on the construction of a will. (Matter of Grace, 139 Misc. Rep. 857; Hadcox v. Cody, 213 N. Y. 570; Schult v. Moll, 132 N. Y. 122; West v. West, 215 App. Div. 285; Matter of Buechner, 226 N. Y. 440; Matter of Evans, 234 N. Y. 442; Matter of Crouse, 242 N. Y. 400; Matter of Rooker, 248 N. Y. 361.) The words “ her heirs and assigns ” are sufficient to carry out the testator’s intention that the grandchildren should take the legacy given to the daughter-in-law. The words “ heirs and assigns ” are not as a matter of law words of limitation. (Tillman v. Davis, 95 N. Y. 17; Matter of Evans, 234 N. Y. 42; Matter of Brown, 93 N. Y. 295; Scott v. Guerney, 48 N. Y. 106; Low v. Harmon, 72 N. Y. 408; Whitman v. Terry, 196 App. Div. 282; Matter of Murphy, 165 App. Div. 783; 215 N. Y. 707; Leask v. Richards, 110 N. Y. Supp. 653; 188 N. Y. 291; Matter of Kidder, 121 Misc. Rep. 285.)

      Frederic M. Thompson for Charles M. Burrows, respondent.
    The words “ her heirs and assigns ” taken in connection with the preceding words “ to pay one share to my daughter-in-law ” are words of limitation and not words of substitution. (Matter of Tamargo, 220 N. Y. 226.)
   Per Curiam.

We find in the language of the will when read in connection with the codicils, a clear intent on the part of the testator that the children of his deceased son, Lorenzo Burrows, who are of his next-of-kin, should take under his will by right of substitution. (Matter of Evans, 234 N. Y. 42.)

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in the Appellate Division and in this court, payable out of the estate.

Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur; Pound, Ch. J., not voting.

Ordered accordingly.


text:
    Joseph DeMatteis, Respondent, v. McGolrick Realty Company, Inc., et al., Appellants, Impleaded with Others.
    (Argued June 3, 1932;
    decided July 19, 1932.)

      Archibald H. Kurland and J. Bernard Nipomnich for appellants.
    Under the facts the defendants’ buses are private carriers and their operation may not be restrained by plaintiff. (Gerhard & Hey, Inc., v. Cattaraugus Tanning Co., 241 N. Y. 413; New York State Rys. v. Monroe Cab Corp., 134 Misc. Rep. 664; United Traction Co. v. Smith, 115 Misc. Rep. 73; Utica-Clayville Bus Co. v. Waite, 233 App. Div. 297; Dover, S. & R. St. Ry. Co. v. Wentsworth, 140 Atl. Rep. 505; Meisner v. Detroit, B. I. & W. Ferry Co., 154 Mich. 545.)

      William D. Cameron for respondent.
    The defendants are operating an omnibus line within the meaning of that term as it is used in the Public Service Law and the Transportation Corporations Law. (Davis v. People, 247 Pac. Rep. 801; Public Service Comm. v. Hurtgan, 91 Misc. Rep. 432; United Traction Co. v. Smith, 115 Misc. Rep. 73.)
   Per Curiam.

We are in agreement with the decision of the Appellate Division that the defendants are operating a “ bus line or motor vehicle line or route ” for the transportation of passengers without a certificate of convenience and necessity in competition with the plaintiff who is operating a bus line under a certificate of convenience and necessity after permission granted by local authorities as provided by section 66 of the Transportation Corporations Law (Cons. Laws, ch. 63).

The judgment should be modified, however, by adding the words for public use in the conveyance of persons or property ” after the word “ route ” where that word first appears in the injunction clause of the judgment and, as so modified, the judgment should be affirmed, without costs to either party.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur.

Judgment accordingly.


text:
    Louise McGowan, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    (Argued June 2, 1932;
    decided July 19, 1932.)

      Frederick C. Tanner, Leroy A. Lincoln and Dean Potter for appellant.

      Nathaniel Ellenbogen for respondent.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and Milton I. Hauser of counsel), for Department of Health of City of New York.
   Per Curiam.

This is an appeal by the defendant from an order of the Appellate Division as provided by subdivision 4 of section 588 of the Civil Practice Act. A question certified to this court as therein provided must be in such form that it may be answered “ yes ” or “ no.” If a question is certified “ in such broad and indefinite terms that it will admit of one answer under one set of circumstances, and a different answer under another ” the court will decline to answer it. (Grannan v. Westchester Racing Assn., 153 N. Y. 449, 458.) The question certified reads: “Are the records of the Department of Health of the City of New York, relating to the attendance and treatment of a patient at a hospital or clinic conducted by such Department, subject to subpoena duces tecum, for production on the trial of a pending action, on application under Rule 162 of the Rules of Civil Practice? ” Manifestly the question cannot be answered either in the affirmative or negative.

The appeal should be dismissed, with costs.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur.

Appeal dismissed.


text:
    In the Matter of the Estate of Charles E. Murtha, Jr., Deceased. Kathryn L. Murtha, Appellant; Graham Murtha, et al., Respondents.
    (Submitted May 9, 1932;
    decided July 19, 1932.)

      Frederick Hemley and Jesse Hemley for appellant.
    The evidence warrants the finding that appellant was the common-law wife of decedent. (Badger v. Badger, 88 N. Y. 546; Matter of Brown, 252 N. Y. 366; Hynes v. McDermott, 91 N. Y. 451; Gall v. Gall, 114 N. Y. 109; Matter of Haffner, 254 N. Y. 238; Matter of Crandall, 214 App. Div. 363; Leeds v. Joyce, 202 App. Div. 696; 235 N. Y. 620; Matter of Wells, 123 App. Div. 79; 194 N. Y. 548; Matter of Biersack, 96 Misc. Rep. 161; 179 App. Div. 916; Applegate v. Applegate, 118 Misc. Rep. 359; Wilson v. Burnett, 105 Misc. Rep. 279; Adger v. Ackerman, 115 Fed. Rep. 124.)

      J. Charles Weschler for respondents.
    Where a relation is meretricious in its beginning, it is presumed to continue so in the absence of clear and convincing proof of a subsequent marriage. (Badger v. Badger, 88 N. Y. 546; Gall v. Gall, 114 N. Y. 109; Matter of Eichler, 84 Misc. Rep. 668; Hill v. Vroman, 242 N. Y. 549.)
   Per Curiam.

Letters of administration were issued to Graham Murtha, a brother of deceased. Kathryn Lynch Murtha filed a petition in the Surrogate’s Court, praying that the letters be revoked upon the ground that they were issued because of a false suggestion of a material fact, i. e., that deceased did not leave a widow. Petitioner alleged that she is the surviving widow.

The issue was tried and the Surrogate found upon sufficient evidence that the petitioner and deceased had entered into a common-law marriage. The Appellate Division reversed the findings made by the Surrogate and denied the petition.

We are required to examine this evidence. (Matter of Edge Ho Holding Corp., 256 N. Y. 374, 381; Matter of Flagler, 248 N. Y. 415.)

After such examination, we are satisfied that the Surrogate, who saw the witnesses and heard the testimony, was justified in making the decision embodied in the decree.

The question is purely one of fact and it would serve no useful purpose to review the evidence.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division payable out of the estate.

Pound, Ch. J., Crane, Kellogg, Hubbs and Crouch, JJ., concur; Lehman and O’Brien, JJ., dissent.

Ordered accordingly.


text:
    In the Matter of the Accounting of First Trust and Deposit Company, as Trustee under the Will of Percy E. Roche, Deceased, Appellant. Mary Dissel et al., Respondents.

      (Argued June 8, 1932;
    decided July 19, 1932.)

      Frank H. Hiscock for appellant.
    The case presented to the Appellate Division did not permit it to make the modification which it made. There were no objections on the accounting which raised any such question as is involved in the modification. (Matter of Hart, 60 Hun, 516; Matter of Bielby, 91 Misc. Rep. 353; Matter of Heuser, 87 Hun, 262; Hull v. Hull, 225 N. Y. 342.) Proper construction of the will is that the trustee retain in the trusts all the First Trust and Deposit Company stock owned by decedent at her death and the decision of the Appellate Division providing for a possible liability for so doing is erroneous. (Mertz v. Guaranty Trust Co., 247 N. Y. 137; Mallam v. McFie, [1912] 1 Ch. 29.)

      Arthur E. Sutherland, Jr., for respondents.
    The Appellate Division properly reserved to respondents any right which they may have to cast the trustee in damages for failure properly to execute its trust. Approval of the trustee’s acts after the date to which its account extended should not be given. (A., T. & S. F. Ry. Co. v. United States, 284 U. S. 248; Roy Realty Co. v. Altman & Co., 194 App. Div. 43; Matter of Garvin, 256 N. Y. 518; Aalholm v. People, 211 N. Y. 406.)
   Per Curiam.

The trustee filed its account and it has been approved as filed by the Surrogate and by the Appellate Division. If the respondents desired to hold the trustee liable for negligence in the management of the trust before the date of filing the account, it should have been done in the accounting proceeding. Having failed in that proceeding to charge the trustee with negligence, they were thereafter barred from charging it with negligence which occurred at any time before the filing of the account, as the Surrogate had jurisdiction to determine the question of the trustee’s negligence. (Matter of Clark, 257 N. Y. 132.)

The Appellate Division could not approve the account as filed and at the same time reserve to the respondents the right to charge the trustee with negligence for its acts or failure to act at a time prior to the filing of the account. Neither could the Appellate Division determine any question as to the trustee’s liability for its acts or failure to act after the account was filed. No such question was before it. We do not understand that it intended to do so, but the wording of the modification of the decree is not clear.

The decree should be modified so as to point out clearly that the trustee cannot now be held liable for anything that occurred before the account was filed. As to the trustee’s liability thereafter, no opinion is expressed as that question is not properly involved upon this appeal.

The third adjudging paragraph of the decree formulated by the Appellate Division should be modified by inserting after the word matter ” the words in the future ” and by adding at the end of the first sentence thereof the words but the said trustee shall not be liable for any act or failure to act prior to the time its account was filed in this proceeding,” and by striking out the exception at the end of the third paragraph of this decree.

The order of the Appellate Division modifying the decree of the Surrogate’s Court should be modified in accordance with this opinion and as so modified affirmed, without costs.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur; Crouch, J., not sitting.

Ordered accordingly.


text:
    In the Matter of Herman Agoglia, Respondent, against Edward P. Mulrooney, as Police Commissioner of the City of New York, Appellant.

      (Argued June 2, 1932;
    decided July 19, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and Milton I. Hauser of counsel), for appellant.
    Petitioner has failed to establish a clear legal right to the peremptory order of mandamus. (People ex rel. McMackin v. Board of Police, 107 N. Y. 235; People ex rel. McCabe v. Matthies, 179 N. Y. 242; Matter of Ormsby v. Bell, 218 N. Y. 212; Matter of Eiss v. Sommers, 205 App. Div. 619; Matter of Hamburger v. Board of Estimate, 109 App. Div. 427; Matter of Brooklyn Imp. Co. v. Pounds, 174 App. Div. 446; Matter of Spanhake v. Teachers’ Retirement Board, 224 App. Div. 75; 249 N. Y. 605; People ex rel. Armstrong v. Warden, 183 N. Y. 223; People ex rel. Wineburgh v. Murphy, 195 N. Y. 126; People ex rel. Duryea v. Wilber, 198 N. Y. 1; People ex rel. Werner v. Walsh, 212 App. Div. 635; 240 N. Y. 689; Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; Lang’s Creamery v. City of Niagara Falls, 224 App. Div. 483; 251 N. Y. 343; People ex rel. Ritter v. Wallace, 160 App. Div. 787; People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187; People ex rel. Schwab v. Grant, 126 N. Y. 473.) The action of the defendant in denying the application for a license to conduct a cabaret was not capricious, arbitrary or unreasonable and constituted no abuse of discretion. (Matter of Ormsby v. Bell, 218 N. Y. 212; People ex rel. Empire City v. State Racing Comm., 190 N. Y. 31; People ex rel. Ruth v. Leo, 197 App. Div. 942; Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; Mannix v. Frost, 100 Misc. Rep. 36; 181. App. Div. 961; Message Photo-Play Co. v. Bell, 179 App. Div. 13.)

      Jacob Shientag for respondent.
    The petitioner is entitled to a peremptory mandamus order. (People ex rel. Duryea v. Wilber, 198 N. Y. 1.) The action of the defendant is capricious, arbitrary and unreasonable and constitutes an abuse of discretion. (Picone v. Commissioner of Licenses, 241 N. Y. 156; Sauseer v. Department of Health of City of New York, 242 N. Y. 66; Larkin Co. v. Schwab, 242 N. Y. 330.)
   Per Curiam.

. Local Law No. 12, enacted in 1931 by the Municipal Assembly of the city of New York, prohibits the operation of a public dance hall or a cabaret without a license issuable by the Police Commissioner. No such license shall be issued unless, among other things, the place sought to be licensed “ in the opinion of the Police Commissioner is a safe and proper place to be used as a public dance hall or a cabaret.” It is not without significance that the law in question transferred jurisdiction over the issuance of dance hall and cabaret licenses from the Department of Licenses to the Police Commissioner.

Petitioner herein applied for a cabaret license. The Police Commissioner refused to issue it because in his opinion the place sought to be licensed was not a safe and proper one to be used as a cabaret. This refusal has been held by the Special Term and by the Appellate Division to have been capricious and unreasonable. The Police Commissioner has been commanded by a peremptory order of mandamus forthwith to issue and deliver the hcense apphed for.

We learn from the petition itself that in' the immediate neighborhood of the petitioner’s premises there are four pool rooms in operation; also that within a few hundred feet is located a public school. The Superintendent of Schools in a letter to the Police Commissioner opposes issuance of the license because of the propinquity of the proposed cabaret to the school. The decision of the Police Commissioner was based upon a consideration of those facts as well as upon records of the Police Department and certain reports received through regular police channels, the exact purport of which does not appear. Under such circumstances the refusal of the Commissioner of Police to issue the license can hardly be said to have been capricious or unreasonable. The petitioner has, therefore, shown no clear legal right, and the Commissioner’s opinion, rather than that of the courts, must control. (People ex rel. Schwab v. Grant, 126 N. Y. 473, 481; People ex rel. Empire City Trotting Club v. State Racing Comm., 190 N. Y. 31, 33; Matter of Ormsby v. Bell, 218 N. Y. 212, 216; Lang’s Creamery, Inc., v. City of Niagara Falls, 251 N. Y. 343, 346, 347.)

The orders should be reversed and the motion for peremptory mandamus denied, with costs in ah courts.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur.

Orders reversed, etc.


author: Crouch, J.

text:
    Erit Realty Corporation, Respondent, v. Sea Gate Association, Appellant.

      (Argued June 20, 1932;
    decided July 19, 1932.)

      Harold M. Kennedy and Benjamin Heller for appellant.
    Plaintiff does not possess easements of ingress and egress to and from the beach reservation shown on the map. (Heyman v. Biggs, 233 N. Y. 118; Matter of City of New York [Northern Boulevard], 258 N. Y. 136; Erit Realty Corp. v. Sea Gate Assn., 249 N. Y. 52; Reis v. City of New York, 188 N. Y. 58.) If plaintiff does possess easements in and to the beach reservation, its rights thereunder are burdened with the reciprocal obligation to abide by the rules and regulations of the defendant, and in accordance with these rules and regulations to pay its proportionate share of the maintenance charges levied by the defendant association against all Sea Gate property. (Drabinsky v. Sea Gate Assn., 239 N. Y. 321; Erit Realty Corp. v. Sea Gate Assn., 249 N. Y. 52.)

      Harry L. Kreeger and William Roth for respondent.
    Plaintiff and those who hold through or under it were correctly held to have rights of easement in, and of user, of, the beach reservation shown on the map, under reasonable rules and regulations of the defendant, adopted with a view to excluding all persons not entitled to access thereto or to the use thereof. (Williamson v. Salmon, 105 Misc. Rep. 485; 196 App. Div. 922; 233 N. Y. 657; Drabinsky v. Sea Gate Assn., 239 N. Y. 321; Niagara Falls v. N. Y. C. & H. R. R. R. Co., 41 App. Div. 93; 168 N. Y. 610; Matter of Village of Olean v. Steyner, 135 N. Y. 341; Colling v. Buffalo Furnace Co., 73 App. Div. 22; Haight v. Littlefield, 147 N. Y. 338; Kernochan v. N. Y. E. R. R. Co., 128 N. Y. 559; Johnson v. Cox, 196 N. Y. 110; Ranscht v. Wright, 9 App. Div. 108; 162 N. Y. 632.)
   Crouch, J.

In 1897 a tract of land known as Sea Gate at the western end of Coney Island was shut off from the land to eastward by a physical barrier running from the Atlantic ocean on the south to Gravesend bay on the north. Sea Gate was then owned by the Norton Point Land Company. It was in process of development as an exclusively residential district of a high type. It had been surveyed and plotted on a map which was filed in the office of the Register of Kings county on June 16, 1897. The map portrayed the upland as laid out in streets, blocks and building lots.' It also portrayed an area marked “ Beach Reservation ” lying on the ocean side to west and south between a black line marked Mean High Water Line ” and another black line, marked North Line of Reservation.” The latter line apparently followed the brink of the upland bank and marked the limit of upland ownership as well as the termini of the streets leading to the beach. In addition to what is shown on the map, it appears from the evidence that the termini of the streets were at that time bulk-headed and that steps or stairs three or four feet high led down to the beach from each bulkhead.

On August 31, 1898, the Norton Point Land Company-deeded certain lots to plaintiff’s mesne grantor. The description in the deed was by block numbers as shown upon the filed map, to which reference was made. Thereafter, the Norton Point Land Company deeded to the defendant various lots not then sold in the tract, together with all its interest in the streets and beach, including lands under water and between high and low water mark acquired subsequent to the filing of the map and not shown thereon. Concededly defendant by that deed became vested with title to the lands within the street lines and to the lands included in the beach reservation. But that title was subject to any easements then existing.

The defendant was incorporated as a membership corporation. It was an instrumentality by which residents in the Sea Gate colony intended to make secure the social conditions and surroundings as they desired them to be. Among the objects stated in its certificate of incorporation were the mutual comfort and convenience of its members; * * * to provide and maintain open places on the. beach * * * for the common use of its members; to provide generally for the care, protection and maintenance of the property at Sea Gate of its members.” It adopted and enforced certain rules and regulations restricting access to the tract and the use of its streets and beach. The expenses of maintenance and operation were paid by its members. Plaintiff never became a member. Plaintiff’s property, located at the northeast corner of the tract, has by its own choice been opened to the public and now lies without the Sea Gate barrier. Nevertheless it asserts and has been granted by the judgment appealed from an easement of access over defendant’s streets to and user of the beach reservation as shown on the filed map, subject only to the reasonable rules and regulations of the defendant whereby those having the right to enter such beach reservation ’ may be identified.”

The right of the defendant as against the plaintiff to maintain the barrier with entrance gate and guard, and reasonably to regulate admission, was determined in Erit Realty Corp. v. Sea Gate Assn. (249 N. Y. 52, 417; 253 N. Y. 522). Whether there was any easement in the streets of Sea Gate appurtenant to plaintiff’s property beyond the necessities of access thereto was not determined. The point was not before the court. Nor was it determined in Drabinsky v. Sea Gate Assn. (239 N. Y. 321), where the controversy arose over the validity of the defendant’s rules limiting the right of admission to and the use of its streets as a means of access. Nevertheless the reasons underlying the decisions in those cases are decisive here. Whatever easements appurtenant to plaintiff’s property may exist in defendant’s streets and beach, as well as the limitations thereon, arise solely by implication. Hence the question is one of intention, to be answered, like questions of intention generally, in the light of all the circumstances.” (Matter of City of New York [Northern Boulevard], 258 N. Y. 136, 147.) What appears upon, the filed map, by reference to which the property of plaintiff was described in the original conveyance, is an important circumstance. It is not, however, the sole circumstance. The unbroken fine marked “ North Line of Reservation,” apparently blocking off and barring the approaches to the beach, loses its significance when we learn that from each street end were stairways to the beach. The word “ Reservation ” in the label Beach Reservation ” marked on the area in question lacks the certainty of meaning which it has as a term of art in a deed of conveyance. It must be interpreted in the fight of its setting. It was so interpreted in a contemporaneous resolution of the directors of the Norton Point Land Company, declaring “ the intent of the company as to the so-called Beach Reservation ” to be that it should be “ forever kept for the free access and exclusive use of all the owners of any lots.” It may be supposed that the sale of expensive lots in an exclusive seaside colony would have been difficult under any other arrangement. There can be no doubt that an easement in the beach and in at least one street giving access to it was appurtenant to plaintiff’s property when defendant took its title.

Even so, the very circumstances which lead to that conclusion point to a reciprocal right in defendant to limit the user by any restriction which might reasonably be expected in such a locality. (Drabinsky v. Sea Gate Assn., supra.) The judgment appealed from makes identification the sole limitation. If that be a decision that no other limitation by way of rules and regulations would be reasonable, it decides an issue which was not litigated. The question of what other rules and regulations, if any, may or may not be reasonable is not before us. Neither is the question of whether defendant’s lands under water and lands between high and low water marks are subject to an easement in favor of plaintiff. The asserted easement was solely to the ocean beach as shown on the filed map.

The judgment should be modified in accordance with this opinion and as so modified affirmed, with costs to the appellant in all courts.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.