text:
    Eighth Avenue Coach Corporation, Respondent, v. City of New York et al., Appellants.

      Argued June 2, 1941;
    decided July 29, 1941.

      William C. Chanler, Corporation Counsel (Paxton Blair, Herman Horowitz and Leo Brown of counsel), for appellants.
    The express provisions of the franchise amount to a consent in advance to the one-way regulation. (Dartmouth College v. Woodward, 4 Wheat. 518; Brooklyn Heights R. R. Co. v. Steers, 213 N. Y. 76; Western Union Tel. Co. v. Syracuse Electric Light & Power Co., 178 N. Y. 325; New York Rapid Transit Corp. v. City of New York, 275 N. Y. 258; 303 U. S. 573; State ex rel. City of Minneapolis v. St. Paul, M. & M, Ry. Co., 98 Minn. 380; 214 U. S. 497; Charles River Bridge v. Warren Bridge, 11 Pet. 420.) Apart from consent, the regulation, being a reasonable exercise of the police power, overrides the franchise. (Commissioners of Palisades Interstate Park v. Lent, 240 N. Y. 1; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Manigault v. Springs, 199 U. S. 473; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398; New York & N. E. R. R. Co. v. Bristol, 151 U. S. 556; Boston & Maine R. R. Co. v. County Commissioners, 79 Me. 386; Cincinnati, Indianapolis & W. Ry. Co. v. Connersville, 218 U. S. 336; Denver & Rio Grande R. R. Co. v. Denver, 250 U. S. 241; Baltimore v. Baltimore Trust & Guarantee Co., 166 U. S. 673; New Orleans Gas Light Co. v. Drainage Comm., 197 U. S. 453; Jones Beach Boulevard Estate, Inc., v. Moses, 268 N. Y. 362; French v. Carhart, 1 N. Y. 96.)

      Boykin C. Wright and James A. Fowler, Jr., for respondent.
    The police regulation would have drastically curtailed the revenues and profits of the coach corporation, and taken away a major portion of its franchise rights. (Griswold v. N. Y. C. & H. R. R. R. Co., 115 N. Y. 61; Tortora v. State of New York, 269 N. Y. 167; Public Service Com. v. N. Y. C. R. R. Co., 230 N. Y. 149.) The franchise rights of the coach corporation were entitled to the protection of the State and Federal Constitutions, and the city could not destroy or curtail such rights without compensation. (People v. O’Brien, 111 N. Y. 1; Brooklyn Bus Corp. v. City of New York, 274 N. Y. 140; Los Angeles v. Los Angeles Gas & Electric Corp., 251 U. S. 32; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; Coney Island, F. H. & B. R. R. Co. v. Kennedy, 15 App. Div. 588; Langdon v. Mayor, 93 N. Y. 129; Knickerbocker Ice Co. v. 42nd St. R. R. Co., 176 N. Y. 408; Matter of Mayor of New York, 193 N. Y. 503; First Construction Co. v. State, 221 N. Y. 295; Appleby v. City of New York, 271 U. S. 364; Grand Trunk Western Ry. Co. v. City of South Bend, 227 U. S. 544; Delaware, L. & W. R. R. Co. v. Town of Morristown, 276 U. S. 182.) The primary purpose of the franchise contract was to establish two longitudinal routes each operated in both directions, and specific clauses in the contract cannot be isolated and interpreted as giving the Police Commissioner the power to destroy or curtail the franchise routes. (Brooklyn Bus Corp. v. City of New York, 274 N. Y. 140; People v. Detroit United Railway, 156 Mich. 659; Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519; Becker v. Frasse & Co., 255 N. Y. 10; People ex rel. Wood-haven Gas Light Co. v. Deehan, 153 N. Y. 528; Langdon v. Mayor, 93 N. Y. 129; People ex rel. City of New York v. Nixon, 229 N. Y. 356; City of Troy v. United Traction Co., 202 N. Y. 333.)
   Finch, J.

The single question presented for decision is whether the Police Commissioner of the city of New York, by means of a traffic regulation providing for one-way traffic on a portion of Eighth and Ninth avenues, may abrogate and cancel a substantial part of two out of the four omnibus routes granted under a ten-year franchise following competitive bidding upon payment of a cash consideration of $475,000 and three per cent of the gross receipts.

After a trial at Special Term, a decree was entered enjoining the Police Commissioner of the city of New York from enforcing one way traffic regulations permitting only southbound traffic, which includes the omnibus line operated by plaintiff on Eighth avenue from Fifty-seventh street to Bethune street, and only north-bound traffic on Ninth and Columbus avenues from Fourteenth street to Sixty-fourth street.

The franchise of plaintiff provides for a route on Eighth avenue starting with the Cortlandt Street Ferry and running along Hudson street, West Broadway, Eighth avenue, Central Park West, to the Polo Grounds. A second route, independent of the first and intersecting it at no point, runs along Ninth and Amsterdam avenues, starting at Gansevoort street and running along Ninth avenue, Columbus avenue, Broadway, Amsterdam avenue to LaSalle street near One Hundred Twenty-fifth street.

Following an announcement in the newspapers, the Police Commissioner sent to the Coach Corporation a letter to the effect that the existing two-way operation on each of these avenues for the distances above-noted must be discontinued and in place thereof a one-way loop operation would be substituted in the affected area together with operation over three connecting cross-town links. Plaintiff had no franchise over these cross-town streets from the Board of Estimate, nor a certificate of convenience and necessity from the State Transit Commission. Ten days later the Commissioner published a notice simply designating part of these two avenues as one-way streets, and containing nothing concerning cross-town connecting links.

Special Term placed its decision upon two grounds, first, that no express provisions nor anything in the franchise contract amounted to a consent in advance to the one-way traffic regulation now assailed by plaintiff, and second, that apart from consent, the traffic regulation, though an alleged reasonable exercise of the police power, could not abrogate and cancel without compensation a substantial portion of the valuable property rights owned by plaintiff under the franchise.

Plaintiff urged also that this regulation invaded the exclusive jurisdiction of the Board of Estimate and the Transit Commission. Special Term, however, expressly refrained, as do we, because it is unnecessary in view of our decision, from passing upon this issue.

The Appellate Division affirmed the decree of Special Term, without opinion. °

We take up first the contention of the city that we should consider certain clauses of the franchise contract as creating reservations which permit a mere police regulation to abrogate and cancel a large part of two of the four routes over a substantial portion of the franchise route contract.

In answer to this contention we need only cite the fundamental canon of construction, that the franchise contract must be read as a whole in order to determine its purpose and intent, and that single clauses cannot be construed by taking them out of their context and giving them an interpretation apart from the contract of which they are a part. (Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519; Becker v. Frasse & Co., 255 N. Y. 10.) Words considered in isolation may have many and diverse meanings. In a written document the word obtains its meaning from the sentence, the sentence from the paragraph, and the latter from the whole document, all based upon the situation and circumstances existing at its creation. A consideration of this franchise contract shows that its primary purpose was to establish two separate longitudinal omnibus routes, each operating in both directions. The contract describes in specific detail these two routes which do not connect or touch at any point throughout their length, and no cross-town or connecting links were provided between the two routes. It is conceded that a two-way operation over these longitudinal thoroughfares was intended by both parties to the contract. This view of the contract is confirmed by the situation and circumstances existing at the time of the execution of the franchise contract. Following a fifty year two-way operation of street cars on Eighth and Ninth avenues, the street car company became hopelessly insolvent and the Federal receiver surrendered the franchise to the city. Thereupon the Board of Estimate called for competitive bids for two omnibus routes on each avenue to take the place of the street car routes. The routes have been described above. The Eighth avenue route as increased by a modification of the franchise comprises 9.8 miles in length, and the Ninth avenue route, six miles. The total of the two routes was 15.6, all of which was to be a two-way operation save at either end where provision was made to run around the block in order to obviate the necessity of U ” turns in the avenues. The proposed traffic regulation would reduce the fifteen miles of two-way operation by eliminating five miles out of a total of 31.6 miles in the best paying portion and substituting therefor one-way operation. The Board of Estimate fixed the money payment to be made on the basis of a two-way operation. By unanimous vote the Board of Estimate decided to award the franchise to plaintiff after determining that its offer to pay $475,000 in cash, $30,000 deposited as security under the twenty-fourth paragraph of section 2 of the franchise contract, and three per cent of the gross annual revenue was the most advantageous to the city. A brief outline of the steps necessary in the award of a franchise may not be amiss, as showing the elaborate proceedings which even the Board of Estimate and the State Transit Commission, which are endowed with the franchise making power, must scrupulously observe whenever a franchise is to be granted or modified in the slightest degree. First, there is a written petition from the successful bidder and a public hearing thereon held after ten days from a published notice of hearing containing the petition in full. The Board of Estimate then must make an investigation into the money value of the franchise and the adequacy of the compensation offered and embody the results of such investigation and inquiry in a written cqntract containing all the terms and conditions. The proposed contract with the form of resolution to adopt the same must then be entered on the minutes of the Board of- Estimate. Thereupon the proposed contract and proposed resolution must be published in full for at least fifteen days together with a notice of the second public hearing which must be held not later than twenty-seven days after the entry of the form of contract on the minutes. The resolution awarding the contract must be voted by at least a three-fourths vote. There must be then added the separate and additional approval of the Mayor. After the award of the franchise contract, the successful bidder must apply to the Transit Commission for its approval and authorization. Again a public hearing must be held upon due notice. Any modification of a franchise contract requires the same procedure. Thereupon plaintiff paid to the city in cash, the sum of $475,000, deposited the $30,000 additional security, purchased buses and other operating equipment at an approximate cost of $1,000,000, and hired and trained employees for the operation. Operation commenced November 12, 1935, and has continued ever since in - both directions throughout the entire length of each of the routes. The operation has proved successful; for example the annual net income for 1938 was upwards of $350,000, so that the three per cent of the gross revenue paid to the city has been substantial. As noted, the franchise of plaintiff expires by its terms in 1945, or a period of a little over four years yet to run.

Keeping in mind the situation and circumstances existing at the time of the awarding of this franchise, that the two-way operation over these longitudinal thoroughfares was intended by both parties to the contract for the benefit of the public as well as for plaintiff, and that the value of the franchise was fixed and paid for on that basis, we examine the clauses upon which defendants rely as containing alleged express reservations so that a mere traffic regulation, issued by the Police Commissioner, not a party to the contract, may cancel a substantial part of two of the four routes. The first of these clauses appears in section 1, containing the grant of the franchise. Following the enumeration of the streets and avenues to be traversed, there appears the clause that plaintiff “ shall have the right to cross such other streets and avenues, named and unnamed, as may be encountered in traversing said routes, with the right to operate omnibuses in either direction over any street and avenue described in the foregoing routes, except that said operation shall at no time he in a direction contrary to police regulations.” Subdivision seventeenth of section 2 provides: “The Company shall be subject to all laws and ordinances affecting or which may be applicable to the operation of omnibuses and all traffic regulations applicable thereto now in force or which may be in force during the term of this contract. The Company shall also comply with and enforce the carrying out of any lawful orders or regulations designed for the protection and safety of persons or property or for the comfort, health and convenience of the public, which may be issued by the Board or official having jurisdiction over such matters, and the Company shall also comply with and enforce the carrying out of such specific orders or directions with respect to the operation of omnibuses hereunder as may be issued by the Police Department of the City and which are designed to govern the movements of omnibuses in the streets.” Subdivision twentieth of the same section provides: “ The Company shall operate, pursuant to this contract, the routes as herein described or any portion of the same which shall best serve the convenience of the public, but the Company shall operate only upon the streets and avenues herein described. If vehicular traffic be diverted from any of the streets or avenues forming a part of such routes because of fires, parades, traffic congestion or any other event closing any such streets or avenues temporarily or permanently to vehicular traffic, the Company may, during such closing, use such other streets or avenues as are necessary, or as may be specified by the Police Department or by the Board, to continue the operation of such routes. If, however, any such streets or avenues shall be closed to vehicular traffic,^for a period longer than forty-eight (48) hours, or traffic regulations shall require a continued diversion of all or part of the operation, then the Company shall communicate with the Board and the Board may by resolution authorize the use of such other streets or avenues for the remaining period during which such streets or avenues may be closed or may designate an agent who may on certificate authorize the use of such other street or streets. * * * ”

Another provision relied upon by defendant is contained in subdivision 32, in which the company contracts to abide by and perform all the terms of the contract and not to set up any claim that the provisions reserving to the city the right to terminate the franchise or any other provisions are unreasonable or void.

It appears in the record that the above clauses were standard clauses used by the city in other franchise contracts and were stock provisions not drafted with any special reference to the two longitudinal routes in the case at bar, and their inclusion in this franchise agreement would seem to have no special significance or importance beyond that of their ordinary meaning arising from the context in which they are used.

We take up first the clause in section 1, namely, that the company shall have the right to cross such other streets and avenues as may be encountered in traversing the two longitudinal routes, with the right to operate buses in either direction except that such operation shall at no time be in a direction contrary to police regulation. This provision follows the detailed description of the streets and avenues comprising the routes and the particular clause in question and the clause, except that said operation shall at no time be in a direction contrary to police regulations,” is made a part of the sentence which specifically provides for two-way operation. This clause is naturally construed in harmony with its context when it is noted that there are ten or more places along these routes where the use of cross streets is required, and also at the terminals, to prevent U ” turns. To permit buses to be operated in either direction over these cross streets would disorganize traffic. Obviously the above-quoted clause was inserted to cover just such situations in the contract. To construe it in such a way as to make it nullify the rest of the sentence in which it appears, so that while one part of the sentence provides for two-way traffic the rest of the sentence would permit a traffic regulation of the Police Department to abolish altogether instead of regulating two-way traffic for a substantial portion of the routes, places a construction upon this portion of the sentence which appears unreasonable in the light of its setting, exceeds the bounds of regulation, and destroys a valuable portion of the franchise rights without just compensation.

The second clause, subdivision 17 of section 2, which requires that plaintiff obey all laws, ordinances and traffic regulations applicable to omnibus operation in force during the term of the franchise, to obey lawful orders for the comfort, health and safety of the public, and to comply with specific orders issued by the Police Department with respect to the operation of buses and designed to govern their movements in the street, obviously is the standard clause applicable to all such contracts, which provides in general terms that the operation shall not be illegal but shall conform to all lawful requirements. It relates only to the regulation of the movement of the buses while being so operated. Traffic regulations may include many things such as speed of operation, bus stops, rules of the road, safety zones, traffic lights, rights of way, and other regulations. Such right to regulate, however, did not reserve the right to destroy the most profitable portion of the route. When regulation becomes destruction, it ceases to be regulation. In Grand Trunk Western Ry. Co. v. City of South Bend (227 U. S. 544) the city, after granting a double track franchise, attempted to repeal the franchise as to one track, and the ordinance attempting such. repeal was held invalid even though the second track had not yet been laid (227 U. S. 544). To the same effect see Delaware, Lackawanna & Western R. R. Co. v. Town of Morristown (276 U. S. 182), Pennsylvania Coal Co. v. Mahon (260 U. S. 393).

Both the clauses thus far considered, when read in harmony with the contract, do not presuppose curtailment but continued operation and concern the right to regulate the movement of the buses while being operated pursuant to the franchise. In the third clause, namely, subdivision 20 of section 2, which refers to the curtailment of operation because of events beyond the will of either contracting party, provision is made for substitutional operation so that as a result, instead of providing for curtailment, this clause makes provision for continued operation. Moreover, the franchise contract itself provides in subdivision 5 of section 2 that plaintiff is obligated under penalty of forfeiture of all of its rights to place and keep in full operation all of the authorized routes, obviously for the benefit of the traveling public. This subdivision 20 contains no reference to one-way traffic regulation and hence may be discarded upon that ground alone. The clause primarily relates to fires, parades and other events outside of the control of the contracting parties. The city urges that the use of the words, closing any such streets or avenues temporarily or permanently to vehicular traffic means a permanent shifting of the franchise for all time. A reading of the entire clause shows, however, that the use of the word “ permanently ” was apparently to denote a period other than a permanent shifting of the franchise route. This meaning is emphasized by the provision that the right to use the substitutional streets is only to be granted by resolution of the Board of Estimate “ for the remaining period during which such streets or avenues may be closed or [the Board of Estimate] may designate an agent who may on certificate authorize the use of such other street or streets.” Obviously this remaining period must be occupancy short of a permanent franchise, since the permanent operation of buses over non-franchise streets could not be lawfully authorized by any mere resolution of the Board of Estimate or by any authorization of an agent. Nothing would suffice except the full procedure of written petition, publications, public hearings, inquiry and franchise award by the Board of Estimate, and the issuance of a certificate of convenience and necessity after similar procedure by_the State Transit Commission, all in accordance with the detailed requirements of the charter of the city and the laws of the State. Otherwise, the effect of this subdivision would be to create something in the nature of a floating franchise where apparently the route could be relocated under the guise of police regulation at the will of the Police Commissioner. Such a construction would not be in harmony with the franchise contract as a whole but in contradiction therewith.

No contention is being made here by plaintiff that any terms of the contract, if properly construed, are either unreasonable or void.

Construing this franchise contract as a whole in the light of the conceded intention of the parties, providing for a two-way operation, the clauses relied upon by the city clearly were not intended to permit a mere police regulation providing for one-way operation to cancel and abrogate for a substantial distance two of the four routes.

As bearing upon what has been said above and what follows, we have already indicated that there is in the record substantial evidence in support of the finding by the trial court unanimously affirmed by the Appellate Division, that this one-way operation will result in material reduction to plaintiff, both in passengers and profits. In the case at bar we are not confronted with a situation where the regulation in question did not materially modify or impair the rights granted by the contract.” (Baltimore v. Baltimore Trust & Guarantee Co., 166 U. S. 673, 681.)

We turn now to the second issue involved herein, namely, whether apart from alleged reservations in the franchise contract, the police traffic regulation may be sustained as a reasonable exercise' of the police power. In that connection it has long been settled authoritatively in this State that a franchise constitutes property within the ordinary significance of the word. (People v. O’Brien, 111 N. Y. 1, 40.) The grant of a bus franchise constitutes a grant of property. (Brooklyn Bus Corp. v. City of New York, 274 N. Y. 140.) A franchise, like other forms of property, is protected both by the State and Federal Constitutions against a substantial curtailment or destruction by the government without payment of fair compensation, (City of Los Angeles v. Los Angeles Gas & Elec. Corp., 251 U. S. 32, 39.) Where, as here, the damage is substantial, the city may, of course, exercise condemnation, but not without the payment of just compensation. (Langdon v. Mayor, 93 N. Y. 129; Delaware, L. & W. R. R. Co. v. Town of Morristown, 276 U. S. 182; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393.) Plaintiff is demanding only that proper recognition be given to the franchise which it purchased and paid for. There is always open to the city the power to negotiate with the plaintiff as to fair terms for curtailing the bus routes, and should plaintiff seek too much, the city has the right to condemn the franchise in whole or in part, with the right to have just compensation for the talcing fixed by the courts.

It follows that the judgment should be affirmed, with costs.

Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., taking no part.

Judgment affirmed.


source: Caselaw Access Project

author: Rippey, J. Lewis, J.

license: Public Domain

text:
    In the Matter of the Accounting of Irving Trust Company et al., as Trustees under the Will of Joseph Battell, Deceased. Rosa E. Tuttle, Appellant; Winifred M. Sheldon, as Executrix of Robert T. Sheldon, Deceased, et al., Respondents.

      Argued May 20, 1941;
    decided July 29, 1941.

      Dudley Miller for appellant.
    The duty of the court is to ascertain the intention of the testator and to carry out such direction. (Matter of Watson, 262 N. Y. 284.) The testator intended the principal of the trust fund for each nephew or n-iece to be paid over on his or her death to the same persons as would inherit the real property of the deceased nephew or niece under the Statute of Descent governing the devolution of the real property of such nephew or niece. (Matter of Moffitt, 171 Misc. Rep. 84; 258 App. Div. 992; 283 N. Y. 743; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Matter of Canfield, 136 Misc. Rep. 551; 231 App. Div. 708; 256 N. Y. 610; Matter of Winslow, 138 Misc. Rep. 672; 233 App. Div. 872; 259 N. Y. 550; Matter of Waring, 275 N. Y. 6; Matter of Koch, 282 N. Y. 462.) The Statute of Descent of the State of Connecticut governing the devolution of the real property should be applied in determining the remainder-men of the trust. (Cary v. Cowman, 116 Misc. Rep. 463;
      Matter of Harned, 138 Misc. Rep. 546; 234 App. Div. 796.) If the laws of New York govern, article 3 of the Decedent Estate Law (Cons. Laws, ch. 13), as amended by chapter 229 of the Laws of 1929, should be applied in determining membership in the class of heirs at law. (Matter of Watson, 262 N. Y. 284; Matter of Koch, 282 N. Y. 462; Matter of Waring, 275 N. Y. 6; Matter of Lake, 170 Misc. Rep. 840.)

      John F. Woods and Harter F. Wright for Isabel B. Gris-wold, respondent.
    The testator died a resident of New York and the law of New York should be applied to determine the remaindermen of the trust. (Matter of Winslow, 138 Misc. Rep. 672; 233 App. Div. 872; 259 N. Y. 550; Matter of Devoe, 66 App. Div. 1; 171 N. Y. 281; Matter of Angarica, 157 Misc. Rep. 98; 7 Heaton on Surrogates’ Courts [5th ed.], § 568, p. 420; Cary v. Carman, 116 Misc. Rep. 463.) The law of descent as it existed prior to September 1, 1930, should be applied to determine the membership of the class of remaindermen and the shares and proportions which they will take. (New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Gilliam v. Guaranty Trust Co., 186 N. Y. 127; Doane v. Mercantile Trust Co., 160 N. Y. 494; Matter of Moynahan, 158 Misc. Rep. 821; Central Trust Co. v. Skillin, 154 App. Div. 227; Matter of Dialogue, 159 Misc. Rep. 18; Matter of Waring, 275 N. Y. 6; Clark v. Lynch, 46 Barb. 68; Matter of Lake, 170 Misc. Rep. 840; Woodward v. James, 115 N. Y. 346; Matter of Barker, 230 N. Y. 364.)

      Clifton P. Williamson for Evelyn Humphrey, respondent.
    Determination of the questions involved in this proceeding is governed by the law of New York. (Matter of Devoe, 66 App. Div. 1; 171 N. Y. 281; Matter of Winslow, 138 Misc. Rep. 672; 233 App. Div. 872 ; 259 N. Y. 550.) The persons designated in the will as “ heirs at law ” of the life beneficiary and their respective shares are to be ascertained by reference to the Decedent Estate Law as it exists unamended by chapter 229 of the Laws of 1929 and subsequent legislation. (New York Life Ins. & Trust Co. v.
      Winthrop, 237 N. Y. 93; Matter of Waring, 275 N. Y. 6; Matter of Lake, 170 Misc. Rep. 840.)

      George W. Martin for Philip B. Stewart et al., respondents.
    The remaindermen are the living descendants of the testator’s deceased brothers and sisters. (Matter of Waring, 275 N. Y. 6; Matter of Gifford, 279 N. Y. 470; Fell v. McCready, 236 App. Div. 390; N. Y. Life Ins. & Trust v. Viele, 161 N. Y. 11.)

      C. 8. Huffman, Jr., for Katherine H. Swift, respondent.
    The Decedent Estate Law as it existed prior to the enactment of chapter 229 of the Laws of 1929 and chapter 599 of the Laws of 1930 is controlling in accordance with the clearly expressed intention of the testator. (Matter of Waring, 275 N. Y. 6; Matter of Lake, 170 Misc. Rep. 840; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93.) The testamentary intention may only be given effect by distribution of the trust estate solely to the paternal side of the family. (Matter of Barker, 230 N. Y. 364.)

      F. F. Behberger and Daniel Burke for Winifred M. Sheldon, as executrix of Robert T. Sheldon, deceased, respondent.
   Rippey, J.

Joseph Battell died while a resident of and domiciled within the State of New York on July 8, 1874, leaving a last will and testament dated February 7, 1868, which was duly admitted to probate in Kings county on August 11, 1874.

By the terms of the will the testator directed that his residuary estate be divided into “ so many equal parts shares or portions as there shall be nephews and nieces of mine who are living at my death or who have died before me leaving lawful issue who are then living; And to assign or allot one such share to each nephew, And one such share to each niece, and one such share to the lawful issue of each nephew or niece who may have died before me ” and that each such share should be held in trust for the benefit of such nephew or niece or lawful issue of nephews or nieces as to whom the share was applicable for life, “And at his or her death to assign transfer and pay over the same to his or her lawful issue if any there shall be then living: And if there be no such issue when living, then and immediately upon the decease of such nephew or niece to assign transfer and pay over the same to such person and persons as are then by law the lawful c heirs-at-law ’ of such nephew or niece and in such shares and proportions as they would by law inherit (as heirs at law) from such nephew or niece.”

One of testator’s nieces, Ellen Battell Stoeckel, daughter of one of his brothers, was born in Norfolk, Connecticut, on March 10, 1851, and was a resident of and domiciled within the State of Connecticut at the time of her death on May 5, 1939. She took one of the trusts under the will. Upon her death the trustees filed a petition for final judicial settlement of their account as such and for instructions as to whom and in what proportions payment of the corpus of the trust with accumulations should be made and to the end that such a determination might be made a request for construction of the above-quoted provision of the will was made. The cestui que trust died without leaving issue her surviving. The Surrogate held that distribution should be made to her heirs at law as defined in subdivisions 6 and 10 of section 83 of the present Decedent Estate Law (Cons. Laws, ch. 13; L. 1929, ch. 229, as amd. by L. 1930, ch. 174, effective September 1, 1930), with the result that the entire remainder should pass to Rosa E. Tuttle, a first cousin of Ellen Battell Stoeckel but no blood relative of the testator. The Appellate Division reversed the Surrogate and held that those sections of the Decedent Estate Law had no application and that the fund passed, upon the death of the cestui que trust, under the laws as they existed prior to September 1, 1930, with the result that the property should pass to the heirs of the testator’s blood under the authority of Matter of Waring (275 N. Y. 6).

It is asserted, at the outset, that the Laws of Connecticut control on any determination as to who the heirs at law ” of Mrs. Stoeckel may be. However, Battell, when he made his will and when he died, was a resident of and domiciled within New York State and his estate (including the trust in question) has since been administered here and it is here to be distributed. The property does not pass through Mrs. Stoeckel. The circumstance of her death, wherever it might have occurred, merely released the trust property for distribution under the terms of the Battell will. Those and other considerations lead us to conclude that the laws of New York State govern the distribution of the fund in question (Matter of Devoe, 66 App. Div. 1, 6; affd., 171 N. Y. 281; Matter of Winslow, 138 Misc. Rep. 672, 677; affd., 233 App. Div. 872; 259 N. Y. 550; and see 7 Heaton on Surrogates’ Courts [5th ed.], p. 420, § 568; Restatement of Conflict of Laws [Am. Law Inst.], § 296).

It is a primary rule of construction that the courts must find and follow the intent of the testator as disclosed by the words of the will itself (Matter of Chalmers, 264 N. Y. 239; Matter of Durand, 250 N. Y. 45, 54; Matter of Watson, 262 N. Y. 284, 293) if the wording thereof is unambiguous, and there is no ambiguity in connection with the wording of the will here involved. With the exception of certain specific bequests for charitable purposes, not a dollar of the testator’s estate was left to other than blood relatives. There is not a word in the will to indicate any intent that the residuary estate or the remainders of the several trusts should pass to strangers of the blood, but on the contrary the will from beginning to end indicates a specific contrary intent. It is clear that the testator intended that the corpus of the trust should pass, in the event that Mrs. Stoeckel should die without issue, to those who would inherit as her heirs at law by the provisions of the law applicable to his will and to his property which were in effect at the time of her death. Sight must not be lost of the fact that it is the estate of Battell that is to be distributed, not the estate of Mrs. Stoeckel. It is the will of Battell that is to be construed and not the will of Mrs. Stoeckel. In unequivocal terms the will provides that the trustees should assign, transfer and pay over the principal of the trusts to such person or persons as are then by law the lawful heirs of his niece in such shares and proportions as they would by law inherit from her under the law of descent affecting the distribution of his estate. Since the will provides for a gift over to a class on the termination of the intermediate estate of the niece and the will contains no express direction to the contrary, the members of the class and the shares each take must be determined by the applicable statute,— the one in effect as to his will and his estate at the time of her death (New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Matter of Winslow, 259 N. Y. 550; Matter of Devoe, 171 N. Y. 281; Matter of Waring, supra).

It has properly been said that the will exhibits skillful draftsmanship. Great care and meticulous accuracy are exhibited in its preparation and wording. There can be no doubt that the testator knew and said exactly what he desired to say. When he said “ the law ” he meant the law ” and he neither said nor meant that distribution should be made according to some scheme which was not the law ” in effect at that time. He was providing for the distribution of his own property, not that of his niece and not on any theory “ as if ” it were that of his niece. He intended that distribution of his property should be made according to the provisions of the law in effect at the time of the death of the niece, if she should die without issue, to her lawful heirs at law under such applicable law. He gave the cestui que trust no control over the fund and no power to dispose of it. He carefully refrained from providing that the property should be distributed under any power of appointment from her. The will permits of no assumption that the deceased intended that the distribution of his property should be made in accordance "with the provision of some law which in specific terms was not in effect as to his will or his property at the time of Mrs. Stoeckel’s death. The law of descent at the time the will was made and at the time of the testator’s death, of which he was charged with knowledge, would have prohibited the passing of any part of his property to appellant.

What, then, is the applicable law? It is not that contained in the provisions of chapter 229 of the Laws of 1929, as amended by chapter 174 of the Laws of 1930 (as the Surrogate held), but, on the contrary, it is the law in effect on August 31, 1930. That is so by the express mandate of the Legislature. Section 21 of chapter 229 of the Laws of 1929 provides in express terms that the provisions of sections * * * six ” [embracing sections 80-88 of the Decedent Estate Law] * *' * “ ten ” [amending section 314 of the Surrogate’s Court Act] * * * “ shall apply only to the estates or wills of persons dying after August thirty-first, nineteen hundred and thirty,” but the Legislature did not stop there. To make it- doubly clear that there could be no possible doubt as to its intent and purpose and to foreclose any possible construction by the courts that would defeat that intent, the Legislature further added “ and the provisions of law affected by such sections in force prior to the taking effect of this act shall apply to the estates and wills of all persons dying prior to September first, nineteen hundred and thirty, with the same force and effect as if they were not hereby amended.” Section 14 of chapter 174 of the Laws of 1930 contains provisions in specific terms to the same effect. There is nothing in that language that those who read can fail to understand and no opening is left for construction such as is sought by appellant in this case. The will was made and the testator died long prior to August 31, 1930. As we have said before, it was Ms estate to whose distribution applicable law must be applied. By the express mandate of the statute the law in effect prior to August 31, 1930, is the only law in effect applicable to the distribution of the corpus of the trust in question and requires distribution of the fund to respondents. Nothing to the contrary has been said in Matter of Waring (supra).

There remains a question argued in the Appellate Division which relates to commissions claimed on behalf of a deceased executor. Upon the argument of the present appeal we were advised that all objections to such commissions have been withdrawn. We regard the question as academic and accordingly have not considered it.

The order should be affirmed, with costs to all parties filing separate briefs payable out of the estate, and the motion to dismiss the appeal should be denied.

Lewis, J.

(dissenting). I dissent from the decision about to be made.

The will of Joseph Battell, which bears date February 27, 1868, and was probated in Surrogate’s Court, Kings County, August 11, 1874, is before us for construction. After making substantial bequests in favor of his two brothers, his five sisters and various public, charitable and educational institutions, the testator divided his residuary estate into as many equal shares as there should be nephews and nieces surviving him, or who had predeceased him leaving issue who survived him, one of such shares being allotted to each nephew and niece, or to surviving issue of any deceased nephew or niece, to be held upon a separate trust for the life use of such beneficiary. The last of the trusts thus created terminated when the testator’s niece Ellen Battell Stoeckel died on May 5, 1939, a resident of Norfolk, Connecticut.

Ellen Battell Stoeckel was the daughter of the testator’s brother, Robbins Battell. She is survived by no relatives closer than cousins. Upon the final accounting by trustees of the fund of which she had life use, the present controversy arose which has led to a judicial construction of the testator’s will to determine who are the persons intended by him to receive that fund upon the termination of the intermediate estate.

The Surrogate ruled that, upon a provision of the testator’s will, presently to be considered, the trust fund should be distributed to Rosa E. Tuttle, who is not a lineal descendant of a brother or sister of the testator, but is a first cousin of Ellen Battell Stoeckel on her mother’s side. The Appellate Division reversed the Surrogate’s ruling, rejected the claim of Rosa E. Tuttle, who is the present appellant, and decided the intention of the testator to be that upon the termination of the intermediate estate the principal of the trust should go to heirs of the Battell blood only — the lineal descendants of the testator’s brothers and sisters — who are cousins of the life tenant Ellen Battell Stoeckel on her father’s side.

After making provision for the trust funds of which his nephews and nieces were given the life use, the .testator directed that upon the termination of such use the distribution of the principal of the trust should be governed in each instance by the following direction: “ Second. * * * And at his or her death to assign transfer and pay over the same to his or her lawful issue if any there shall be then living: And if there be no such issue when (sic) living, then and immediately upon the decease of such nephew or niece to assign transfer and pay over the same to such person and persons as are then by law the lawful ‘ heirs-at-law ’ of such nephew or niece and in such shares and proportions as they would by law inherit (as heirs at law) from such nephew or niece.”

It is noteworthy that in the original will the words “ then ”• and “ heirs-at-law ” as they appear in the provision quoted above, were underlined by the testator. It should also be said that words in other provisions of the will bore like underlining,-— clearly indicating, as I believe, a desire by the testator to give emphasis to words thus marked.

Our inquiry to ascertain the distributees whom the testator intended should take the fund here involved is rewarded by finding in words of his own choice a clear expression of his intention upon that subject. The intention of a will-maker is to be found in the words used in the will, and when these are clear and definite there is no power to change them.” (Matter of Watson, 262 N. Y. 284, 293.) Here the testator has expressly provided that when one of the trusts created by him is terminated by the death of a niece without issue, the fund itself shall be paid over “ to such person and persons as are then by law the lawful 1 heirs-at-law ’ of such * * * niece and in such shares and proportions as they would by law inherit (as heirs at law) from such * * * niece.”

Significant, I think, is the phrase “ then by law ” in the use of which the testator was moved to underline the word “ then.” With commanding force the phrase expresses the testator’s intention that the distributees shall be such persons as shall be “ the lawful heirs-at-law of such * * * niece ” on the date of her death, which in the present case was May 5, 1939. On that date, under the New York statute of descent then effective (Decedent Estate Law [Cons. Laws, ch. 13], § 83, subds. 6 and 10 [L. 1929, ch. 229, § 6], the only person who was “ then by law ” an heir at law of Ellen Battell Stoeckel was the appellant, Rosa E. Tuttle.

The will bears evidence of skilled draftsmanship. If the testator had intended — as the Appellate Division has ruled — that upon the death of a nephew or niece who was a cestui qui trust the principal should go to relatives of the testator’s own blood, we would expect to find a clear provision to that effect. The preparation of such a direction would have been a simple commission for the expert draftsman. Instead, as we have seen, the accurate use of the word “ then,” underlined by the testator for emphasis, makes the date of death of the life beneficiary a controlling factor and, when considered in its context, serves to designate as distributees those who are “ then by law the lawful heirs at law of such nephew or niece.” In reaching that conclusion — with special reference to the testator’s emphasized use of the word “ then ”— I have been influenced by the rule that Lines of inheritance are governed by statute and it must be assumed that the [testator] knew that those lines could be changed at any time.” (Matter of Koch, 282 N. Y. 462, 465; Gilliam v. Guaranty Trust Co., 186 N. Y. 127, 138.)

The language which we are now construing is similar to the testamentary provision considered in Matter of Waring (275 N. Y. 6). There, where the distributees to be ascertained were designated as “ the next of kin of the said John, according to the laws of the State of New York,” this court ruled that such language required the application of. a statute effective prior to September 1, 1930. But the court added (p. 10): It was not the estate of the son which passed at his death, nor did it pass by his will. The estate to be distributed at the death of the son was the estate of the father passing under the father’s will.” In the will involved in the case at bar the testator was careful to use the words — “ and in such shares and proportions as they would by law inherit (as heirs at law) from such nephew or niece ” — thereby indicating an intention contrary to that expressed in the will considered in Matter of Waring {supra). The intention expressed in the will considered in Matter of Waring {supra) was that the property should be distributed as the estate of the testator passing under his will; in the will now before us there is clearly manifest an intention that the trust fund shall pass as the estate of the niece to be distributed as if she, not the testator, died intestate. Accordingly, if the fund had belonged absolutely to the niece, it would follow that upon her death in 1939 it would go to her only heir-at-law, the appellant Rose E. Tuttle. Such, I think, was the test expressly chosen by the testator to determine the distributees.

Of equal importance to our inquiry is the suggestion found in Matter of Waring {supra, at pp. 13, 14), Had the testator here said merely that the remainder should pass according to the laws of the State of New York in effect at the time of the death of the son, distribution under the provisions of section 83, subdivision 4, of the Decedent Estate Law might have been made.” (Emphasis supplied.) That statement foreshadowed our present problem and suggests the answer. (See, also, Matter of Koch, supra.)

It is for these reasons that I dissent and vote'to reverse the order of the Appellate Division and affirm the decree of the Surrogate, except as to his ruling upon commissions claimed by the deceased executor.

Lehman, Ch. J., Finch and Conway, JJ., concur with Rippey, J.; Lewis, J., dissents in opinion in which Lough-ran and Desmond, JJ., concur.

Order affirmed, etc. (See 286 N. Y. 722.)


author: Lewis, J. Finch and Desmond, JJ.,

text:
    In the Matter of the City of Rochester, Respondent. Lehigh Valley Railroad Company et al., Appellants; Public Service Commission of the State of New York et al., Respondents.
    Argued April 9, 1941;
    decided July 29, 1941.

      Herbert W. Smith for Lehigh Valley Railroad Company, appellant.
    The Appellate Division erred in affirming the order of the Public Service Commission because such order contains provisions contrary to provisions of the Railroad Law (Cons. Laws, ch. 49). (McAneny v. N. Y. C. R. R. Co., 238 N. Y. 122; Matter of State Dept. of Public Works, 233 App. Div. 64.)

      Clarence P. Moser and Herbert R. Reif for Erie Railroad Company et al., appellants.
    The Erie Railroad Company cannot be required to contribute to the improvement because the Railroad Law authorizes such a requirement only in case of a change in the crossing or structure in accordance with the provisions of section 91 of such statute, and there is no such change as to either the crossing or the structure in this case. (Matter of State Highway Comm. [Kirkwood Crossing], 201 App. Div. 94; Matter of State Commissioner of Highways [Ripley], 239 N. Y. 279.) There are no approaches within the meaning of the statute in this case, and, therefore, there can be no statutory authority for exacting a contribution to the work to be done outside the railroad right of way. (Matter of Town of Brant Grade Crossings, 252 App. Div. 404; McAneny v. N. Y. C. R. R. Co., 238 N. Y. 122; City of New York v. New York, W. & B. R. R. Co., 245 App. Div. 109; Matter of State Department of Public Works, 233 App. Div. 64.)

      Sherman C. Ward and Gay H. Brown for Public Service Commission, respondent.
    The order of the Public Service Commission is authorized by section 91 of the Railroad Law. (Matter of State Commissioner of Highways, 239 N. Y. 279.) The Public Service Commission properly included in the project the approach highways leading to the bridges carrying the Erie and Lehigh Valley railroads over River boulevard. (Matter of Grade Crossing [Lehigh Valley R. R. Co.], 264 N. Y. 195; Matter of Brant Grade Crossings, 252 App. Div. 404; 280 N. Y. 495; Matter of Grade Crossing, 238 App. Div. 484; 265 N. Y. 615.)

      William H. Emerson, Corporation Counsel (Charles B. Forsyth of counsel), for City of Rochester, respondent.

      T. Carl Nixon and Carl F. Paul, Jr., for University of Rochester, respondent.
    The order of the Commission is based upon ample evidence, and adopts a reasonable plan. (Matter of Grade Crossing, 238 App. Div. 484; 265 N. Y. 615; Matter of N. Y., O. & W. Ry. Co. [East Seneca St.], 244 App. Div. 664; 271 N. Y. 567; Matter of Grade Crossing [N. Y. C. R. R. Co.], 255 N. Y. 320.)
   Lewis, J.

Our inquiry goes to the question whether upon the record before us, in a proceeding instituted under sections 91 and 94 (subd. 4) of the Railroad Law (Cons. Laws, ch. 49), the Public Service Commission has exceeded its grant of statutory power.

The appeals are by our permission from an order of the Appellate Division unanimously affirming an order of the Public Service Commission, in a proceeding instituted by the city of Rochester under section 91 of the Railroad Law, to bring about structural changes in two railroad bridges owned respectively by the appellants, Lehigh Valley! and Erie railroad companies, which bridges span River Boulevard at locations approximately 400 feet apart.

River Boulevard within the city of Rochester extends along the easterly bank of the Genesee river a distance of nearly two miles from Clarissa street southerly to Elmwood avenue. From its northerly end the boulevard is paved with asphalt forty feet wide for a distance of more than half a mile southerly to a point approximately three hundred feet east of the Lehigh Valley bridge. At that point begins the segment of the boulevard with which we are particularly concerned — a level stretch of roadway, 1,150 feet in length, which follows a bend in the river to the west and extends thence westerly under the Lehigh Valley and Erie bridges in that order.

Upon the petition filed by the city of Rochester appropriate hearings were held by the Public Service Commission which led to a determination “ that public safety requires a change in the location of River Boulevard at and in the vicinity of the Erie and Lehigh Valley bridges.” Thereupon the Commission ordered that River Boulevard, at and near the site of the bridges, should be relocated and reconstructed 40 feet in width and should connect at either end of the project with existing pavements.

Concededly the ordered plan calls for no change whatever in the Erie overhead bridge. Apparently the abutments, clearance, dimensions and other features of that span as presently constructed satisfied the requirements of public safety and other factors to which the Commission gave consideration. If the project is completed according to the ordered plan, the only physical change which will occur at the immediate site of the Erie bridge will be the construction of a new curbed pavement 40 feet in width, which will displace the present uncurbed macadam pavement which is 27 feet in width. Notwithstanding these facts the order of the Public Service Commission requires the appellant Erie Railroad to pay 25% of the cost of reconstructing the segment of River Boulevard 1,150 feet in length, mentioned above, and 50% of the cost of removing and reconstructing on a changed location, approximately 425 linear feet of the pavement now in place at the westerly end of the project.

The order requires the appellant Lehigh Valley to make changes in its overhead bridge, including the relocation of the southerly abutment and structural changes in the northerly abutment, to accommodate a new pavement 40 feet in width which at that point will follow an altered alignment of the boulevard. The appellant Lehigh Valley is required by the order to pay 50% of the cost of all structural changes in its bridge and in addition 25% of the cost of reconstructing that portion of River Boulevard which lies within the segment of 1,150 linear feet already mentioned. The order does not require the appellant railroads to contribute to the cost of reconstructing the segment 1,150 feet in length at a greater width or of material of better quality than the existing roadway.

From the facts outlined it is apparent that this proceeding does not relate to a grade crossing elimination. The separation of the grades of the highway involved and the tracks of the two railroads which cross it was accomplished long ago. Since that time River Boulevard, which is a connecting link between several State highway routes and now serves as a thoroughfare to a city park and two public institutions, has been subjected to a marked increase in vehicular traffic. In the brief filed by the city of Rochester the fact is stressed that in his report to the Public Service Commission the referee who presided at the hearings stated that the increase in traffic requires the improvement of River Boulevard to the status of an arterial highway. In that connection it is said in behalf of the city that, except for what is claimed to be a traffic hazard created by the presence of the two railroad bridges and the curve east of the Lehigh Valley bridge, the absence of intersecting streets and of barriers to visibility has made River Boulevard “ ideal for fast traffic to pass safely along it.” Thus is it made clear by the record and emphasized by briefs filed upon this appeal that — lacking all the elements of a grade crossing elimination — the present proceeding is in aid of a commendable effort by the city to solve its traffic problem. Our problem, however, is to determine — to what extent, if any, the appellant railroads are obligated by law to contribute to the cost of facilitating traffic on River Boulevard. Unless statutory authority is found for such action the contributions ordered in this proceeding may not be exacted. The determinations of the Commission are valid only so far as it acts within the authority delegated to it by the legislature.” (McAneny v. N. Y. C. R. R. Co., 238 N. Y. 122, 130.)

In its consideration of evidence presented by the city and the railroads, the Public Service Commission first determined that “ public safety requires a change in the location of River Boulevard at and in the vicinity of the Erie and Lehigh Valley bridges.” Then followed the order, which the appellant railroads now resist, for which, it is said, authority is to be found in sections 91 and 94 (subd. 4) of the Railroad Law.

In so far as is material, section 91 provides: The mayor and common council of any city * * * having jurisdiction over a * * * road which * * * is crossed by a steam surface railroad * ■ * ■ * above grade by structures heretofore constructed * * * may bring their petition in writing to the commission having jurisdiction, therein alleging that public safety requires an alteration in the manner of such crossing, its approaches, the method of crossing, the location of the crossing, a change in the existing structure by which such crossing is made, the closing and discontinuance of a crossing and the diversion of the travel thereon to another street, avenue, highway, road or crossing, or if not practicable to change such crossing from grade, below grade or above grade or to close or discontinue the same, the opening of an additional crossing for the partial diversion of travel from the grade, below grade or above grade crossing, and praying that the same may be ordered. * * * ”

The statute quoted grants to the Public Service Commission no power to require of a railroad contribution to the cost of the ordered plan which the appellants now resist. We, therefore, look to section 94, subdivision 4, which provides in part: Whenever a change is made as to an existing crossing or structure in accordance with the provisions of section ninety-one of this chapter, fifty per centum of the expense thereof shall be borne by the railroad corporation and twenty-five per centum by the municipal corporation and twenty-five per centum by the state. * *

Testing the record by the language of the statute last quoted, we find no evidence that a “ change is made as to an existing crossing or structure ” which affords a legal basis for the charges ordered against the appellant Erie Railroad. There is no evidence that any " change ” whatever is to be made in its bridge structure.” As to the ordered charge against the appellant Erie Railroad of “50 per cent of the cost of removing approximately 425 linear feet of the existing asphalt pavement on the westerly end of the project, and its reconstruction on changed location ”— that work involves the relocation of a section of the boulevard which begins approximately 100 feet west of the Erie bridge, the purpose being thereby to bring that part of River Boulevard extending west of the project into alignment with the pavement to be constructed upon the segment 1,150 feet in length which passes under the two railroad bridges.

In the circumstances disclosed by the present record we do not find in section 94, subdivision 4, of the Railroad Law authority for such a charge against the appellant Erie Railroad. Nor do we interpret the statute, when applied to the facts in this proceeding, as authorizing that part, of the order which directs that the appellants Erie and Lehigh Valley shall each “ pay 25 per cent of the cost of reconstructing the River Boulevard' for a distance of approximately 1150 linear feet.”

However, the segment of approximately 1,150 linear feet last mentioned is crossed at two separate locations by the rights of way of the appellants Lehigh Valley and Erie railroads. Those two locations are spanned by the bridges here involved. The ordered plan calls for pavement reconstruction, with certain limitations, on the two separate areas of River Boulevard which are crossed by the rights of way of the appellant railroads. We believe that, within the language of section 94, subdivision 4, of the Railroad Law such pavement reconstruction within each of those two areas constitutes “ a change * * * made as to an existing crossing ” and that fifty per cent of the cost of such pavement reconstruction under its bridges is a legal charge against each of the appellants respectively.

The structural changes in the Lehigh Valley bridge and the apportionment of the cost thereof, which are directed by the order, are likewise authorized by section 94, subdivision 4, as changes to be made “as to an existing crossing or structure ” where, as in this proceeding, the Public Service Commission has determined that public safety requires such alteration in a crossing.

We have not overlooked decisions to which counsel for the Public Service Commission has directed our attention and which it is said afford supporting authority for the Commission’s order in this proceeding. Those rulings involved proceedings for the elimination of grade crossings under the Grade Crossing Elimination Act. (L. 1928, ch. 678, or §§ 89, 90, 94, subds. 1, 2 and 3 of the Railroad Law.) They did not involve changes in existing crossings or structures and the apportionment of cost thereof as to which the Commission’s power is derived from section 94, subdivision 4, of the Railroad Law.

The orders should be reversed, without costs, and the matter remitted to the Public Service Commission for proceedings in accordance with this opinion.

Finch and Desmond, JJ.,

dissent in the following memorandum: Giving to section 91 of the Railroad Law a broad construction to effect its beneficent purposes and to distribute fairly the cost of necessary safety measures, we consider that there was as to the Erie railroad bridge, such an “ alteration in the manner of * * * crossing ” by the relocation of the highway under and approaching that bridge as to justify the Commission in charging Erie with its fair share of the cost of the work done on both the strips of highway described in the opinion of Judge Lewis. The orders should be affirmed.

Lehman, Ch. J., Lottghran and Conway, JJ., concur with Lewis, J.; Finch and Desmond, JJ., dissent in separate memorandum; Rippey, J., taking no part.

Orders reversed, etc.


author: Finch, J.

text:
    In the Matter of the Will of Lizzie M. Sliter, Deceased. Arthur J. Sliter et al., Appellants; Edith M. Finegan, Respondent.
    Argued June 13, 1941;
    decided July 29, 1941.

      John J. Mackrell and Chester G. Wager for Arthur J. Sliter, appellant.
    The holding of the Surrogate that Arthur J. Sliter is the owner in fee of the real property referred to in paragraph “ fourth ” of the will of testatrix expresses her intention. (Matter of Booker, 248 N. Y. 361; Matter of Chalmers, 264 N. Y. 239; Matter of Durant, 250 N. Y. 45; Matter of Buechner, 226 N. Y. 410; Matter of Mildeberger, 122 Misc. Rep. 743 ; 212 App. Div. 727; 241 N. Y. 528; Matter of Johnson v. Brasington, 156 N. Y. 181; Smith v. Bartlett, 79 App. Div. 174; Starr v. Starr, 132 N. Y. 154.)

      Guy F. Swinnerton for George D. Sliter, appellant.
    The paramount intention of the testatrix, as expressed in her will, was the care and protection of her son, George D. Sliter. (Matter of Quinby, 134 Misc. Rep. 296; Brown v. Quintard, 177 N. Y. 75; Matter of Smith, 254 N. Y. 283; Dwight v. Fancher, 245 N. Y. 71; Benson v. Corbin, 145 N. Y. 351; Matter of Rooker, 248 N. Y. 361; Robinson v. Martin, 200 N. Y. 159.)

      Luden E. Clickner for respondent.
    The intention of the testatrix should be sought and given effect when that can be done. (Klock v. Stevens, 20 Misc. Rep. 383; Matter of Kenny, 224 App. Div. 152; Furniss v. Cruikshank, 230 N. Y. 495.) The testatrix intended in paragraph “ fourth ” of her will that the words “ as his share ” should be interpreted to mean “ applied toward his share ” so far as the share of Arthur J. Sliter in her estate would permit. '' (Ritch v. Hawochurst, 114 N. Y. 512; Tutor v. Tutor, 4 Barb. 431.) The will must be so construed as to harmonize and give effect to the whole thereof. (Matter of Buechner, 226 N. Y. 440; Matter of Kenny, 224 App. Div. 152; Matter of Knapp, 168 Misc. Rep. 128; Klock v. Stevens, 20 Misc. Rep. 383.)
   Finch, J.

This appeal involves the construction of a will.

The Appellate Division reversed the decree of the Surrogate.

Decedent died leaving a last will and testament which was duly admitted to probate. The third, fourth and fifth paragraphs of the will provide as follows:

Third. I give and bequeath to my son Arthur J. Sliter all my right, title and interest in and to all farming tools and implements, together with the contents of the milk house located upon the premises where I now reside.
“ Fourth. I give, devise and bequeath to my son George D. Sliter the use and occupation of the dining room, kitchen, pantry and rooms over the same, together with the front and back entrances to said rooms in that part of the homestead where I now reside in the Town of North Greenbush, Rensselaer County, New York, together with the use of all furniture including my bedding, contained in said rooms. I also give, devise and bequeath to my said son George D. Sliter, sufficient space in the garage for his automobile, as the same is now being used and occupied by him.
“ The use and occupation of the premises hereinabove given to my said son George D. Sliter is with the proviso that said premises shall be retained in the use and occupation thereof by my said son Arthur J. Sliter. Should the said Arthur J. Sliter not desire to retain said premises as his share of the estate, then I direct that my said executors hereinafter named may sell and dispose of said premises free and clear of all liens and incumbrances herein created by the provision herein made for my said son George D. Sliter.
“ Fifth. All the rest, residue and remainder of my estate I give, devise and bequeath to my children Arthur J. Sliter and Edith M. Finegan and George D. Sliter, to be divided equally among them.” (Italics interpolated.)

The testatrix was the widow of one John Sliter, who had predeceased her by some six years. At the time of bis death her husband was seized of a farm of about 150 acres and was the owner of personal property which consisted partly of a one-half interest in a milk business and certain cattle and tools which were owned in common by him and his son Arthur. Letters of administration on his estate were issued to his widow, the decedent herein. Shortly thereafter the three children, Arthur, George and Edith, by a bill of sale, transferred to their mother, the decedent, their interest in the one-half personal property which they acquired on the death of their father. On the same day these children executed a deed, to their mother conveying their interest in all the real estate of the father. No monetary consideration passed between the parties with reference to either of the above transactions, which were in reality gifts to their mother. About a year later decedent, her daughter Edith, and her son Arthur made a reappraisal of such personal property preparatory to the purchase thereof by her son Arthur, at which time Arthur agreed to pay one-half of such reappraisal to his mother as representing her one-half interest in this personal property which was necessary in general to work the farm. Arthur owned in his own right as noted the other half.

It appears in the record that the son George was less well equipped than the others to earn his living in a competitive field, and for that reason was particularly the concern of the maternal care of the mother. She was concerned lest George should not be taken care of after her decease.

The farmhouse was divided into two residences, one of which was occupied by the mother and her son George, and the other by Arthur and his wife and family. George had helped both his father and brother Arthur with the work on the farm. It also appears in the records and constitutes evidence upon which respondent greatly relies, that the testatrix had an equal love for her three children and desired that they share her estate share and share alike.” At the time the will was probated, decedent had an estate estimated at approximately $18,000, which sum includes the amount of $7,500 as the value of the farm. Of the total amount of $18,000, $5,400 was owing to her by her son Arthur.

Edith M. Finegan, the daughter of the decedent, who was one of the executors of the will, petitioned the Surrogate for a construction of the “ fourth ” and fifth ” clauses of the will, contending that it was the intent and purpose of the testatrix to consider the farm as a portion of the assets of the decedent for the purpose of making an equal distribution for the three children; that, therefore, Arthur should be permitted to purchase said property, that his distributive share in the estate should be applied towards the purchase price if he desired to purchase, and the excess between Arthur’s distributive share and the purchase price should be paid by Arthur into the estate; or that the farm should be sold under the power of sale granted to the executors under paragraph fourth ” of the will and the proceeds added to the other assets for equal distribution.

Both Arthur and George opposed this petition, urging that paragraphs “ fourth ” and fifth ” ofi the will should be read in conjunction so that in the process of dividing the property under the fifth ” clause of the will, should Arthur elect under clause fourth ” to accept the farm as [equal to] his share of the estate,” the remainder which consisted of the bank accounts and debts owed to the estate should be divided equally between Edith and George.

At the hearing before the Surrogate, Arthur filed a written consent whereby he has agreed to accept the farm as his share of the estate subject to the conditions and privileges imposed thereon in favor of bis brother George.

The Surrogate held that the true intent and purpose of the testatrix was to devise the homestead to her son Arthur if he agreed to accept the same as his share of the estate of the testatrix, subject to the rights therein given to the son George. The Appellate Division reversed and held that the intent shown by the will was to grant to the son Arthur the right to purchase the real property subject to the use granted by the testatrix to her son George, and that the proceeds representing the purchase price should be con- ■ sidered a part of the estate for the purpose of an" equal distribution thereof in accordance with paragraph “ fifth.” We are in accord with the intent of the testatrix as found by the Surrogate.

We apply to this will the primary rule of construction, namely, that the intent of the testator must govern (Matter of Chalmers, 264 N. Y. 239; Matter of Rooker, 248 N. Y. 361), and that this intention of the testator must be garnered from the words of the will. (Matter of Durand, 250 N. Y. 45, 54; Matter of Buechner, 226 N. Y. 440.) If the testatrix expressed herself in ambiguous language, we endeavor to impute to the words used such meaning as will conform to the intention of the testatrix viewed in the light of the pattern upon which the will was executed. (Matter of Mildeberger, 122 Misc. Rep. 743; affd., 212 App. Div. 727; affd., 241 N. Y. 528.)

The decision of the Surrogate, the opinion of the Appellate Division and the testimony in the record show that the first thqught of the testatrix was for the continued welfare of her son George, after her decease. George had lived upon the farm all his life. For twenty years he had worked there. Naturally it was for his best interest to remain and continue the life he was accustomed to live. Arthur had managed the farm. He was the owner of the tools and personal property used in its operation. Since Arthur had operated the farm, he was the one to continue such operation. In order to provide most securely for the welfare of the son George, it was natural that the mother should desire Arthur to operate the farm with the help of George and continue to look after George in the manner in which George had theretofore lived. The “ third ” clause of the will, in which the testatrix bequeathed to Arthur the other one-half of the farm tools and implements necessary to work the farm, shows unmistakably the desire of the decedent that Arthur should continue to operate the farm. In brief, the testatrix has shown her intent to provide a home and protection for George. The daughter was married and lived with her husband and children elsewhere. In order to carry out this clear intent, the testatrix gives to her son George the use and occupation of that portion of the farmhouse in which his mother and he had resided, together with the use of the furniture and bedding contained in this portion of the farmhouse, and with sufficient space in the garage for his automobile “ as the same is now being used and occupied by him.” This was the only practical method by which testatrix could insure a home for George after her decease. Obviously the testatrix could not compel Arthur to continue to operate the farm if he did not so desire. So the testatrix provided that if Arthur did not desire to retain the farm as his share of the estate, then the property must be sold. In such event George could not live there alone and hence the use and occupation of the premises, in so far as given to George, is limited by the acceptance of Arthur of the farm as his share of the estate. In the fifth ” paragraph the testatrix provided that all the rest, residue and remainder of the estate was given in equal shares to the three children.

In order to sustain the result which was applied by the Appellate Division, the respondent urges that the words of the testatrix in paragraph fourth ” of her will, as his share,” should be interpreted to mean “ applied towards his share as far as the share of Arthur in her estate would permit.” We see no occasion either to delete the words “ as his share of the estate,” or to interpret them otherwise than in their ordinary meaning. The interpretation suggested, namely, “ to be applied towards his share ” practically negatives the words used, namely, “as his share of the estate.” The value of the farm when considered in connection with the rights given to George could not differ widely from the value of the share going to each of the other children, under the construction given to the will by the Surrogate. Such a construction would not require the addition or deletion of any words, nor an interpretation other than the use of the words in their ordinary meaning. Furthermore, there is no provision in the will which provides that Arthur should pay any definite sum for the farm, nor how such sum should be determined. The difficulty of determining the value of the farm subject to the restrictions thereon in favor of George is a potent argument, if one were required, to give the words retain said premises as his share of the estate ” a meaning not different than would ordinarily be gleaned from the use of such words. Moreover, there is no provision for the sale of the real property unless Arthur decline to retain it as his share of the estate. He has duly elected to accept the property in question subject to the restrictions in favor of George. Only in the event that Arthur failed in the confidence imposed in him were the limitations to be lifted, the property sold and the proceeds distributed among the children according to the provisions of paragraph fifth ” of the will. We find that the intent of the testatrix is shown by the words used and that Arthur, having filed the necessary consent, is the owner in fee of the real property subject to the restrictions in favor of George.

It follows that 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 to the appellants payable out of the estate.

Lehman, Ch. J., Loughran, Eippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


text:
    In the Matter of the Will of Eleanor Forde, Deceased. Harry Forde et al., Appellants; Alfred B. Maclay, as Executor of Eleanor Forde, Deceased, et al., Respondents.
    Argued June 19, 1941;
    decided July 29, 1941.

      William Francis Corson and Edwin F. X. Silk for appellants.
    The decisions of the courts below are erroneous. (Terry v. Wiggins, 47 N. Y. 512; Hatch v. Bassett, 52 N. Y. 359; Matter of Smith, 131 N. Y. 239; Matter of McClure, 136 N. Y. 238; Dreyer v. Reisman, 202 N. Y. 476; Rose v. Hatch, 125 N. Y. 427.) The fact that the will makes no specific disposition of the remainder does not destroy the trust and enlarge the bequest to a fee. (Phillips v. Wisner,
      75 Misc. Rep. 278; Matter of Blake, 50 Misc. Rep. 672.) The trustee has no right to invade the corpus of the trust estate for the benefit of testatrix’s sister. (Matter of McKeogh, 151 Misc. Rep. 327; Matter of Kohler, 96 Misc. Rep. 443; Matter of Littman, 165 Misc. Rep. 285; Matter of Cushman, 143 Misc. Rep. 432; Matter of Eckam, 237 App. Div. 463; Matter of Smith, 131 N. Y. 239; Matter of Kearney, 258 App. Div. 39.)

      Morris H. Panger, as special guardian for Jeanne Forde, an infant, respondent.
    The will does not absolutely bequeath the estate to testatrix’s sister. ' (Terry v. Wiggins, 47 N. Y. 512; Matter of Turner, 208 N. Y. 261; Salter v. Browne, 205 N. Y. 204; Matter of Grossman, 131 Misc. Rep. 526; Matter of Blanch, 126 Misc. Rep. 421; Champlin v. Champlin, 58 N. Y. 620.) The will does not disclose •any intent by testatrix to disinherit any of her lineal descendants. (Champlin v. Champlin, 58 N. Y. 620; Low v. Harmony, 72 N. Y. 414; Matter of Tamargo, 220 N. Y. 225; Salter v. Browne, 205 N. Y. 204; Robbins v. McClure, 100 N. Y. 328.) The will being holographic must be construed in that light. (Matter of Mahlstedt, 140 Misc. Rep. 245.) There is no right to invade the corpus of the trust estate. (Matter of McKeogh, 151 Misc. Rep. 327; Matter of Solomon, 149 Misc. Rep. 551.)

      Orrin G. Judd, Martin A. Schenck and Frederick van B. Joy for Alfred B. Maclay, as executor, respondent.
    The natural meaning of the will is to give decedent’s entire estate to her sister outright. (Matter of Hayes, 263 N. Y. 219; 264 N. Y. 459.) The will should be construed as making an outright gift. (Matter of Marsullo, 160 Misc. Rep. 148; 254 App. Div. 849.) Words of outright gift will not be cut down by subsequent language unless such an intent is unmistakably indicated. (Banzer v. Banzer, 156 N. Y. 429; Clarke v. Leupp, 88 N. Y. 228; Matter of Hayes, 263 N. Y. 219; 264 N. Y. 459; Matter of Peters, 69 App. Div. 465; Bennett v. McLaughlin, 125 App. Div. 172; Ottman v. Allter, 212 App. Div. 80; 242 N. Y. 525; Roseboom v. Roseboom, 81 N. Y. 356; Tillman v. Ogren, 227 N. Y. 495.) A construction which results in intestacy will be avoided. (Waterman v. New York Life Ins. & Trust Co., 237 N. Y. 293; Matter of Hayes, 263 N. Y. 219.) The failure to provide for any remainder over is evidence that an outright gift was intended. (Matter of Marsullo, 160 Misc. Rep. 148; 254 App. Div. 849; 255 App. Div. 759; Matter of Moehring, 154 N. Y. 423; Ryder v. Lott, 123 App. Div. 685.) The circumstances surrounding the testatrix support the conclusion that an absolute bequest was intended. (Langnes v. Green, 282 U. S. 531; Handy v. Metropolitan Street R. Co., 70 App. Div. 26; Zinaman v. Stivelman, 246 App. Div. 851; 272 N. Y. 580; Matter of Smith, 254 N. Y. 283; Matter of Miner, 146 N. Y. 121.)
   Rippey, J.

This is an appeal from an order of the Appellate Division, first department, unanimously affirming the decree of the Surrogate which held that the will being construed made an outright gift of decedent’s property to the sister of the testatrix.

The will was in the handwriting of the testatrix and read as follows:

“ Carlton House 22 East 47th Street, New York City — N. Y. July 10th 1926—
“ I, Eleanor Forde, of the above address, do hereby bequeath all my real and personal estate, I may die possessed of to my sister Emily Forde, of Brighton, Ontario, Canada, for her maintenance, as long as she lives, the estate to be administered by Alfred Barmore Maclay, 14 East 84th St., N. Y. City, N. Y., according to his judgment.
I hereby appoint Alfred Barmore Maclay executor without bond.
I declare this to be my last Will and testament.
“ Signed
ELEANOR FORDE.
Witness —
Georgina M. Onet Victor M. Onet

Appellants assert that the language of the will clearly manifests an intention to grant less than absolute fee. It is their contention that under the will Emily Forde was given only a life estate, that the income therefrom should be used by the trustee, Mr. Maclay, to maintain her during her life and that the remainder should pass by intestacy to the appellants.

The gross estate of the testatrix at the time of her death amounted to less than $35,000, of which $11,000 was invested in income-producing securities and the balance was held in cash. Her sister was her nearest next of kin and was sixty-nine years old and in fairly good health ” and apparently the only one deceased had in mind when she made her will. A strong bond of affection existed between the two sisters. They traveled together extensively in this country, in Canada and abroad; they made it a point to be together each summer. Deceased never visited her nephews, the appellants, or her grandniece. Alfred Barmore Maclay, who was named in the will as executor, had been acquainted with the decedent for many years. She hadjjbeen a trained nurse and companion to his mother. He and deceased had many contacts after his mother’s death.

, It seems clear that it was the intention of the testatrix as shown by her will to give her property to her sister absolutely and not me'rely the life use thereof. She attempted to do so in the best way that she knew how with her limited knowledge of the use of legal expressions and her attempt should not be frustrated by a strained construction. There are some considerations which, with other facts and circumstances, furnish aid in determining her true intent. (1) Having gone to the trouble to make the will, she cannot be presumed to have intended to die intestate as to the bulk of her property. The mere fact that she made her will raises a strong presumption to the contrary. (Schult v. Moll, 132 N. Y. 122, 127; Hadcox v. Cody, 213 N. Y. 570; Waterman v. N. Y. Life Ins. & Trust Co., 237 N. Y. 293.) There would be an intestacy as to the remainder if the will were to be construed as giving the sister merely a life use. If the will is construed as conveying an absolute gift to the sister of the whole estate, however, there is no intestacy. (2) Had the deceased intended that the sister should have only the income during her life, it seems that she would have declared what was to be done with the remainder. The fact that she did not so declare is some evidence that the gift to her sister was to be absolute. (3) In the first part of the will testatrix bequeaths the property absolutely to the sister and it has frequently been held that such a bequest should not be cut down by subsequent words unless an intent so to do is unmistakably indicated. (Banzer v. Banzer, 156 N. Y. 429, 435; Tillman v. Ogren, 227 N. Y. 495.) The subsequent words she used may readily be construed to refer to the purpose which the testatrix had in mind in making the outright gift, namely, to give the property to the only one who was really near to her and the only real object of her bounty to provide for her for life and to make sure her property would be used for the sister’s care and not dissipated by placing it in the hands of her trusted friend and advisor for administration. There is no unmistakable indication in the words and expressions used that she intended to cut down the estate from an absolute gift and to limit the gift to the income of a trust for life.

The order appealed from should be affirmed, with costs to both parties payable out of the estate.

Lewis, J.

(dissenting). In the petition for the probate of the will of Eleanor Forde, the named executor asked for a construction to determine whether by the single dispository clause the testatrix intended that her sister should take the entire net estate as a gift absolute, or should enjoy the fife use of a trust of which the net estate should constitute the principal.

The Appellate Division has unanimously affirmed a decree by the Surrogate who construed the will as intending an outright gift of the net estate. The proceeding is here by our leave.

The will is holographic. It provides:

“ Carlton House 22 East 47th Street New York City — N. Y. July 10th 1926 —
“ I, Eleanor Forde, of the above address, do hereby bequeath all my real and personal estate I may die possessed of to my sister, Emily Forde, of Brighton, Ontario, Canada, for her maintenance, as long as she lives, the estate to be administered by Alfred Barmore Maclay, 14 East 84th St. N. Y. City N. Y. according to his judgment.
I hereby appoint Alfred Barmore Maclay executor without bond.
“ I declare this to be my last Will and testament.
“ Signed
“ ELEANOR FORDE Witness—
Georgina M. Onet Victor M. Onet.”

Where, upon inspection of the will and upon a consideration of relevant facts and circumstances, an intent is apparent, all rules to the contrary must yield; provided that intent does not offend against public policy, or some positive rule of law.” (Robinson v. Martin, 200 N. Y. 159, 164; and see Matter of Watson, 262 N. Y. 284, 293.) In this case I believe the language of the will, when considered in the light of the “ relevant facts and circumstances,” indicates an intent by the testatrix to create a trust for her sister — a woman “ sixty-eight or sixty-nine ” years of age, who was in “ fairly good health,” and to. whom the testatrix had given financial aid and had shown solicitude. The appellants are two nephews and a grandniece who, with the beneficiary Emily Forde, are the only heirs at law and next of kin of the testatrix. The estate, we are told, will amount to nearly $35,000.

I find no use of words by the testatrix by which she makes an outright gift which is cut down by language employed in a later clause in the will. In one sentence the testatrix states her plan. Her sister is to have the entire estate• — “for her maintenance, as long as she lives; the estate to be administered by Alfred Barmore Maclay * * * according to Ms judgment.” (Emphasis supplied.) “ The gift and the statement of its purpose cannot be separated, one from the other * * *. In this case the later words are of equal force with the former and are free from ambiguity.” (St. Joseph’s Hospital v. Bennett, 281 N. Y. 115, 118, 119.)

The Appellate Division has affirmed a finding by the Surrogate that this language is not ambiguous. In my view the language employed is sufficiently accurate to express the testamentary intent. The phrase “ for her maintenance ” states the intended use for funds bequeathed. The phrase “ as long as she lives ” states the term of such use. Finally the testatrix directs “ the estate to be administered by Alfred Barmore Maclay * * * according to Ms judgment.” The last phrase imports management of funds beyond the period of administration. When read with the preceding phrases — which connote both the use to which the fund shall be put and the term of such use measured by a lifetime — it is the direction to Alfred Barmore Maclay to administer the fund “ according to his judgment ” which disproves an intent by the testatrix to make an absolute gift. (Matter of McClure, 138 N. Y. 238.)

The fact that the testatrix, who left no descendants, did not specifically refer to her two nephews and her grandniece as remaindermen, is no evidence of a purpose to disinherit them. She made the first object of her bounty her sister. She, it was, for whom the fund was to afford care for life. We may assume the testatrix had knowledge “ that the lines of inheritance were governed by statute * * * ” (Gilliam v. Guaranty Trust Co., 186 N. Y. 127, 138), and that, after the termination of the trust thus created, the remainder would be distributed according to the statutes of distribution then effective.

It is for these reasons that I dissent and vote for reversal and for the construction of the will for which the appellants contend.

Lehman, Ch. J., Loughran, Finch, Conwat and Desmond, JJ., concur with Rippey, J.; Lewis, J., dissents in opinion.

Order affirmed, etc.


author: Lewis, J.

text:
    The People of the State of New York, Respondent, v. Peter Guardino, Appellant.
    Argued June 6, 1941;
    decided July 29, 1941.

      Maurice Edelbaum for appellant.
    The People failed to furnish any testimony required by subdivision 9 of section 2460 of the Penal Law. (People v. O’Farrell, 175 N. Y. 323; People v. Taleisnik, 225 N. Y. 489; People v. Downs, 236 N. Y. 306; People v. Plath, 100 N. Y. 590; People v. Page, 162 N. Y. 272; People v. Kingsley, 166 App. Div. 320; People v. Seaman, 152 App. Div. 495; People v. Farina, 134 App. Div. 110; People v. O’Sullivan, 104 N. Y. 481; People v. Kearney, 110 N. Y. 188; People v. Love, 153 App. Div. 907; People v. Draper, 169 App. Div. 479.)

      William O’Dwyer, District Attorney (Edward II. Levine of counsel), for respondent.
    The People established the necessary corroboration to satisfy the requirement of subdivision 9 of section 2460 of the Penal Law. (People v. Draper, 169 App. Div. 479; People v. Deitsch, 237 N. Y. 300; People v. Trombino, 238 App. Div. 61; People v. Luciano, 277 N. Y. 348; People v. McKane, 143 N. Y. 455.)
   Lewis, J.

The defendant Peter Guardino stands convicted of the crime of compulsory prostitution of women, in violation of section 2460 of the Penal Law, which provides in part as follows:

§ 2460. Compulsory prostitution of women.
ct ^ * * *
<'2 * * *
“ 3. Any person who shall induce, entice or procure, or attempt to induce, entice or procure any woman or girl for the purposes of prostitution or concubinage, or for any other immoral purpose, or to enter any house of prostitution in this state shall be deemed guilty of a felony and, on conviction thereof, shall be punishable by imprisonment for a period of not less than two years nor more than twenty years and by a fine not exceeding five thousand dollars.
^ ^ »{•
(( K * * *
“ 8. Any person who shall knowingly accept, receive, levy, or appropriate any money or other valuable thing without consideration, from the proceeds or earnings of any woman engaged in prostitution shall be deemed guilty of a felony and, on conviction thereof, shall be punishable by imprisonment for a period of not less than two years nor more than twenty years and by a fine not exceeding one thousand dollars. Any such acceptance, receipt, levy, or appropriation of such money or valuable thing shall upon any proceeding or trial for violation of this section be presumptive evidence of lack of consideration.
(í g * * *

The jury by which the defendant was convicted, and the Appellate Division by which the judgment of conviction has been affirmed, were satisfied that the record contains proof which establishes beyond a reasonable doubt that the defendant violated the penal statute quoted above.

In our review of the case, to ascertain whether there is any substantial evidence to sustain the finding of defendant’s guilt, we have searched the record to determine whether the evidence satisfies the further statutory requirement, which is peculiar to this type of case, that “No conviction shall be had under this section upon the testimony of the female unless supported by other evidence.” (Penal Law, § 2460, subd. 9.)

The testimony chiefly relied upon by the District Attorney to prove defendant’s guilt, was adduced from two young women named in the indictment — hereinafter referred to as the complainants — who were the alleged victims of the defendant’s procurement and from whom he is charged with having appropriated moneys earned from prostitution. Upon the trial herein each of the complainants testified that she had pleaded guilty of being a prostitute.

Omitting a recital of sordid details with which the record is replete, it is sufficient to note the District Attorney’s argument that, within the requirement of Penal Law, section 2460, subdivision 9, quoted above, the evidence given by the two complainants, whose testimony is said to corroborate each other, was competent to satisfy Penal Law, section 2460, subdivision 9, and thus tended to establish the defendant’s guilt. Such an argument disregards the fact that the quality of mutual corroboration thus claimed for the complainant’s testimony was withdrawn from the jury’s consideration when the trial judge charged that “ the testimony of a second prostitute is not sufficient to corroborate the testimony of the first prostitute.” We must assume that in reaching its verdict, the jury gave full heed to instructions by the trial judge given upon that subject. “ The duty imposed upon a jury is to hear the evidence adduced upon the trial, apply the rules of law as declared by the court and render a verdict thereon.” (Mulder v. U. S. Slicing Machine Co., 228 N. Y. 88, 91.) The question of whether the charge of the trial judge was correct should await determination until directly presented and fully argued.

Proceeding, as we must, upon the assumption that the jury did not accept the testimony of either complainant as corroborative of the other, we have examined the record to ascertain whether, within the requirement of the statute, the testimony of either complainant is supported by other evidence.”

The defendant was tried with one Luigi Mangione upon a single indictment which charged that by acts which are alleged to have been connected together and constituted parts of a common scheme and plan the present defendant and Mangione on or about February 8, 1940, and prior thereto, induced and procured each of the two complainants to five a life of prostitution, and that on or about February 8, 1940, the defendant and Mangione knowingly appropriated certain sums of money which were known by them to be the proceeds and earnings of prostitution by the complainants, who were described as women engaged in prostitution. Upon the trial it appeared from the testimony of each complainant that on the night of February 8, 1940, as a result of procurement by the defendant and Mangione, the complainants were engaged in a life of prostitution at 237 Penn street in the borough of Brooklyn, and that during that night the defendant appropriated from both complainants certain sums earned by them in prostitution. It also appears from the testimony of one of the complainants that prior to February 8, 1940, she had lived for at least seven nights as a prostitute at No. 72 Throop avenue, from which address she had moved when she was told, by Mangione that detectives had placed that house under surveillance due to complaints that too many men were frequenting the place. In an effort to support this testimony by other evidence ” (Penal Law, § 2460, subd. 9) the District Attorney called the People’s witness Rendfleish, who testified that he had known Mangione and that Mangione had called at his room accompanied by one of the complainants. It also appears that the young woman who accompanied Mangione was the complainant who, prior to February 8, 1940, for a period of at least seven nights, had engaged in prostitution at No. 72 Throop avenue, and when advised to do so by Mangione, had moved from that address. The examination of Rendfleish adduced the following:

Redirect examination by Mr. McDonald (Assistant District Attorney): “ Q. What did he [Mangione] tell you about what had happened at his own house? * * * A. He said he had trouble; they made complaints about him, about many men coming * * *.”

Recross examination by Mr. Drescher (attorney for Mangione): “ Q. Did you know Louis Mangione’s address, the old house that you are referring to? A. Old house? Q. You said something — By the Court: Q. This place he spoke about, where he told you that he had some trouble. A. He had some trouble there. Q. What was the address? A. 45 Throop Avenue.”

This evidence, instead of supporting the complainants’ testimony as to events which occurred at 72 Throop avenue, refers to trouble ” which Mangione had at 45 Throop Avenue.”

The District Attorney also asserts that the evidence given by the complainants finds support in the testimony of the People’s witness Steinbach, the police officer who arrested the defendant. His testimony tended only to establish an admission by the defendant that at some time — no date being given — he had visited the premises at 237 Penn street when one of the complainants was there.

We do not find that the testimony given by the complainants is supported by “ other evidence ” of a type which satisfies the requirement of Penal Law, section 2460, subdivision 9. (People v. Plath, 100 N. Y. 590, 593, 594; People v. Page, 162 N. Y. 272, 274; People v. Taleisnik, 225 N. Y. 489, 494, 495.)

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ., concur.

• Judgments reversed, etc.