text:
    Abraham Boord, Respondent, v. William P. O’Brien, as Police Commissioner of the City of New York, Appellant.
    Argued May 22, 1951;
    decided July 11, 1951.

      John P. McGrath, Corporation Counsel (Daniel T. Scannell and Seymour B. Quel of counsel), for appellant.

      Lawrence Kovalshy and David Goldstein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Rabinowitz, Respondent, v. Kaiser-Frazer Corporation, Appellant, et al., Defendants.
    Argued May 29, 1951;
    decided July 11, 1951.

      Mark F. Hughes, Walston S. Brown, Raymond G. Murphy, Allan F. Conwill and William W. Ellis, Jr., for appellant.

      Mortimer A. Shapiro for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur': Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Theodore Heos, Respondent, et al., Petitioners, against John J. McCloskey, as Sheriff of the City of New York, Appellant.
    Submitted May 31, 1951;
    decided July 11, 1951.

      Sidney Posner and Abraham G. Grayzel for appellant.

      Benjamin Levitas for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


author: Lewis, J.

text:
    The People of the State of New York, Respondent, v. Herman E. Kreis, Appellant.
    Argued June 1, 1951;
    decided July 11, 1951.

      Wilfred E. Hoffmann for appellant.

      Jesse E. Cantor, District Attorney (Franlc Del Vecchio of counsel), for respondent.
   Judgment affirmed.

Concur: Lotjghran, Ch. J., Desmond, Ftjld and Froessel, JJ. Lewis, J., dissents in the following opinion in which Conway and Dye, JJ., concur.

Lewis, J.

(dissenting). The defendant appeals by permission of a Justice of the Appellate Division, Fourth Department, from a judgment of that court which affirmed a judgment of County Court (Onondaga County) convicting him of criminal negligence in the operation of a motor vehicle resulting in death. (Penal Law, § 1053-a.)

The indictment charges that defendant operated a motor vehicle at an unlawful rate of speed on the wrong side of the street in a reckless and culpably negligent manner while under the influence of alcoholic beverages and failed to give a pedestrian the right of way while proceeding through an intersection.

The case for the People was made by evidence of the following facts: South Salina Street in the city of Syracuse is a main north-south thoroughfare. On December 3, 1949, at about 6:20 p.m., Mrs. Freda Cecile left a southbound bus at the northwest corner of the intersection of Rosemont Drive and South Salina Street. Rosemont Drive does not cross South Salina Street, but extends westerly from it. About twenty-five feet south of Rosemont Drive is Harding Place which intersects South Salina Street from the east, and likewise does not cross South Salina Street, but forms a T-shaped intersection. After a brief conversation with two women who had alighted from the same bus, Mrs. Cecile stepped into the street from the northwest corner of Rosemont Drive and South Salina Street and proceeded to walk southeasterly across South Salina Street toward the northeast corner of Harding Place. When she reached a point beyond the center line of South Salina Street, Mrs. Cecile was struck by an automobile owned by the defendant and then being operated by him in a southerly direction on the wrong side (the easterly side) of South Salina Street. There was evidence that the defendant did not sound his horn to warn of his approach; that his car skidded, on a dry pavement, approximately forty-five feet before striking Mrs. Cecile and thirty feet thereafter; and that the impact of the decedent’s body against the left front of defendant’s car drove deep dents into both hood and grill. The dead body of Mrs. Cecile came to rest ninety-six feet south of the point of impact.

The only evidence as to the speed of the defendant’s car, other than the distance it skidded before and after the impact and the damage to the hood and grill, was by two witnesses, one of whom stated that the car “ was going along at a good clip ” and the other who testified that the speed of the car was in excess of thirty miles per hour. The legal speed limit at the site of the accident — which is within the city limits of Syracuse — was proved to be thirty miles per hour.

Two question-and-answer statements were taken from defendant by an assistant district attorney, one late in the evening on December 3d — the night of the accident — and another the following morning (December 4th). Defendant also signed an affidavit on the morning of December 4th. In the affidavit, defendant states — that prior to the accident he had two glasses of beer at a restaurant in Elmwood (within the city of Syracuse) and five or six glasses of beer at a restaurant on South Salina Street; that as he approached Rosemont Drive traveling at about thirty miles per hour, he saw a woman coming from in front of a bus — or a big truck ” as he later described it — and immediately applied his brakes; that he was then on the wrong side of the road and at the time felt a thud and skidded seventy-five feet.

As we read this record the defendant’s attack upon the legal sufficiency of the evidence upon which he has been convicted must fail. In other words there is evidence from which a jury could find that as the defendant approached the site of the accident he was operating his car at excessive speed; that he was then under the influence of intoxicating beverages; that he struck the decedent while he was operating his car on the wrong side of the street; and that he had failed to give warning of his approach. This evidence, if believed by the jury, was sufficient proof of culpable negligence in the operation of a motor vehicle to constitute a violation of section 1053-a of the Penal Law.

However, we believe that reversible error was committed at the trial by a ruling which deprived the defendant of an opportunity to examine a statement made by him to an assistant district attorney. We have seen that two question-and-answer statements were taken from defendant — the first late in the evening of December 3d and the second during the following morning. As to those two statements it appears that at the trial, after the District Attorney had read into evidence the affidavit and second statement, taken on the morning of December 4th, the following occurred:

Cross Examination by Mr. Hoffmann [counsel for defendant] :

Q. Officer Ours, were you present the night before this statement was taken when another question and answer statement was taken? A. Yes.
Q. Is that here in Court? A. I haven’t seen it.
Q. Do you have it, Mr. Del Vecchio [assistant district attorney] ? A. Yes.
Mr. Hoffmann: I would like to offer it in evidence.
Mr. Del Vecchio: I will offer it in my own good time.
Mr. Hoffmann: I would like to offer in evidence the statement that Officer Ours took on the evening of the accident. I understand from what he tells us that he reduced to writing another question and answer statement.
Mr. Del Vecchio: That is correct. I am trying my case. When it comes to his case he can put in whatever he wants in his case.
Mr. Hoffmann: I think it ought to be put in as part of his case, it might explain this other statement give us details about the whole affair. I think I am entitled to have it go in evidence.
The Court: If you want it put in evidence you may do that at the proper time.
Mr. Hoffmann: Does Your Honor hold I don’t have a right to put it in evidence at this time ?
Mr. Del Yecchio: Not as part of my case.
Mr. Hoffmann: As part of your case, it is your witness.
The Court: You may proceed with your cross examination.
Mr. Hoffmann: Exception.” (Emphasis supplied.)

When it came to the defendant’s case, however, the following occurred while defendant was on the witness stand:

“ Mr. Hoffmann: Have you got the question and answer statement that was taken on the night of his arrest?
Mr. Del Veechio: Absolutely.
Mr. Hoffmann: Can I see it?
Mr. Del Yecchio: Only under the direction of the Court will I do it, and only that which is contradictory.
Mr. Hoffmann: If you want the whole thing to go in evidence I will consent to it.
Mr. Del Yecchio: I ask that the Court strike out that statement of counsel.
Mr. Hoffmann: I take the position in as much as they have produced the question and answer statement of the following morning and affidavit, that therefore the jury should have the benefit of the questioning that was reduced to writing the night before.
Mr. Del Yecchio: If there was anything contradictory, but I am not claiming there was anything contradictory in it. I would show it for that purpose, I have no objection to producing it if you want to bring out things that are contradictory, that he has said here on the stand from what was said that night.
The Court: What do you want me to examine it.
Mr. Del Yecchio: That’s why I didn’t want to fake the time of the jury on it.
Mr. Hoffmann: You took up a lot of time on the other one.
Mr. Del Yecchio: That was proper but this is not.
Mr. Hoffmann: In the interests of saving time, I will only examine the defendant as to matters concerning which Mr. Del Yecchio has used that statement, if I may have it.
The Court: I don’t see the purpose of this. What is your purpose in examining the question and answer statement?
Mr. Hoffmann: I understand that Mr. Del Vecchio was asking him certain questions, whether he was asked certain questions and gave certain answers and he had that Exhibit in his hand. I don’t think he marked it as an Exhibit.
Mr. Del Vecchio: I didn’t have it in my hand.
Mr. Hoffmann: He had that document in his hand and I would like to examine that document in respect to those questions to see whether or not he gave the jury the full benefit of the full answers pertaining to the questions which he asked in which he read the answers that he gave.
The Court: Has this other Exhibit been received in evidence, this other question and answer statement?
Mr. Del Vecchio: Ves. This other question and answer statement has been received in evidence and I might point out that anything I cross examined him on which I claimed was inconsistent with what he had told me the night before, he admitted what he had told me, what I questioned him on, anything that was inconsistent.
The Court: I don’t see the point of this.
Mr. Hoffmann: In other words, I can’t look at it at all, is that Your Honor’s ruling?
The Court: Yes.
Mr. Hoffmann: Exception.”

By the foregoing excerpts from the record it appears that when, during the presentation of the People’s case, counsel for the defendant had been advised in open court that the defendant’s first statement (of December 3d) was in the possession of the District Attorney, and had expressed the defendant’s desire to offer that statement in evidence at that time, it was said by the District Attorney that when the time came for the defendant to present his defense “ * * * he can put in whatever he wants in his case that in response to a suggestion by defendant’s counsel that the statement of December 3d should be a part of the People’s case, the court stated “ If you want it put in evidence you may do that at the proper time.” However, when, during the presentation of the defendant’s case, counsel for the defendant again asked permission to examine the statement of December 3d and again indicated his willingness that the jury consider whatever it contained, he was denied permission to examine that statement. For reasons presently to be set forth we think the defendant’s exception to that ruling was well taken.

The record does not show that the Trial Judge was afforded an opportunity to examine the contents of the statement of December 3d prior to his ruling which deprived counsel for the defendant of an opportunity to make such examination. In view of that circumstance and upon the request of our court, the District Attorney has made the defendant’s statement of December 3d available for our examination. In taking advantage of that opportunity we did so to enable us to ascertain whether the defendant’s exception to the ruling by the Trial Judge — which denied defendant’s counsel permission to examine the statement of December 3d — affected adversely the defendant’s substantial rights. (Code Crim. Pro., § 542.)

Our examination of defendant’s statement, taken on the night of December 3d five hours after the accident, discloses that when the defendant was asked to state the speed at which his car was being operated as he approached the decedent, his answer stated a speed less than the legal rate permitted within the city of Syracuse — a rate less than the speed stated by him in his answer to a similar question addressed to him on the following morning by the District Attorney when he made his second statement and signed a separate affidavit. It thus appears that the first statement — given by the defendant on the night of the accident — contained an answer to an assistant district attorney’s question relative to his speed as he approached the site of the accident, which would have been favorable to his position before the jury in its consideration of his defense.

When this court reviewed a record involving a problem not widely different from the one now before us, the opinion by Judge Crouch contained the statement — When, however, it does appear that there is evidence in the possession or control of the prosecution favorable to the defendant, a right sense of justice demands that it should be available, unless there are strong reasons otherwise.” (People v. Walsh, 262 N. Y. 140, 150.) A statement of the same rule —which has prompted frequent repetition — is to be found in the opinion by Chief Justice Cooley, written in People v. Davis (52 Mich. 569, 573, 574): “ * * * the State has no interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons. But surely the State has no such interest; its interest is that accused parties shall be acquitted unless upon all the facts they are seen to be guilty; and if there shall be in the possession of any of its officers information that can legitimately tend to overthrow the case made for the prosecution, or to show that it is unworthy of credence, the defense should be given the benefit of it.” (See, also, People v. Walsh, supra, p. 150; People v. Schainuck, 286 N. Y. 161, 165-166.)

Mindful, as we are, that proof of excessive speed, without more, is not enough to warrant a finding of a defendant’s guilt under section 1053-a of the Penal Law (People v. Bearden, 290 N. Y. 478, 483; People v. Grogan, 260 N. Y. 138, 144; People v. Angelo, 246 N. Y. 451, 457), we cannot say in the present case that the defendant’s substantial rights were not adversely affected by the ruling which deprived him of the right by his counsel to examine the statement of December 3d and, if so advised to offer it in evidence for consideration by the jury with Ms later statement and affidavit of December 4th which the prosecution had made part of the People’s case.

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


text:
    William A. Campbell et al., Constituting the Bondholders ’ Protective Committee for the Holders of First Lien and Refunding Mortgage 5% Bonds, Issued by Hudson & Manhattan Railroad Company, et al., on Their Own Behalf and on Behalf of All Other Holders of Said Bonds, Respondents, v. Hudson & Manhattan Railroad Company, Appellant, et al., Defendants.
    Argued May 22, 1951;
    decided July 11, 1951.

      James J. Grisona, Philip Kason and Earl J. Wofsey for appellant.

      Edward Boss Aranow and Herbert J. Brown for respondents.

      Francis 8. Bensel and Frank H. Heiss for Central Hanover Bank & Trust Company, defendant.
   Order affirmed, with costs. Questions certified answered in the affirmative. No opinion.

Concur: Loughban, Ch. J., Lewis, Conwat, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Leo Y. Chertok, Appellant, v. Sinclair Oil Corporation et al., Respondents, et al., Defendants.
    Argued May 24, 1951;
    decided July 11, 1951.

      Milton Pollack, Harry J. Pasternak and Samuel Maride for appellant.

      Joseph M. Proskauer, Joseph P. Walsh, Eugene Eisenmann and Felix G. Lourie for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loitghban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of the Estate of Edward A. Sheard, Deceased. Grace Sheard, Appellant; Alma Thomas, Respondent.
    Argued May 28, 1951;
    decided July 11, 1951.

      Leo Otis for appellant.

      I. Ben Greenman for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    The People of the State of New York ex rel. Dorothy Merber, Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued May 31, 1951;
    decided July 11, 1951.

      Sol Pottish, Harry L. Ettinger and James J. Moroney for appellant.

      John P. McGrath, Corporation Counsel (Edith I. Spivack, Imre Schwarz and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Feoessel, JJ.


text:
    Kurt F. Nothhelfer et al., Copartners Doing Business under the Name of Allied Electrical Contracting Co., Appellants, v. American Surety Company of New York, Respondent.
    Argued May 28, 1951;
    decided July 11, 1951.

      Michael Goldberg for appellants.

      David 8. Konheim for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessbl, JJ.


text:
    In the Matter of Syracuse Grade Crossing Commission. New York Central Railroad Company, Appellant; Public Service Commission et al., Respondents.
    Argued May 29, 1951;
    decided July 11, 1951.

      Kenneth F. Stone, Frederick L. Wheeler, Jacob Aronson, Paul Folger, Leo Manville, S. H. Hellenbrand and W. B. Stevens for appellant.

      Joseph J. Doran, George H. Kenny and Sherman G. Ward for Public Service Commission, respondent.
   Order affirmed, without costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Bernard Stein, Appellant.
    Argued May 16, 1951;
    decided July 11, 1951.

      Rudolph Stand and Julius Stern for appellant.

      Frank S. Hogan, District Attorney (Richard G. Denser, Charles W. Manning and Jack M. Cotton of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Conway, J., votes to reverse and grant a new trial upon the ground that the identity of the defendant as the person who committed the homicide was not shown with sufficient certainty to preclude a reasonable possibility of error. (People v. Seppi, 221 N. Y. 62, 68; People v. Davino, 284 N. Y. 486, 489.) Chief Judge Crane, in People v. Crum (272 N. Y. 348, 350), set forth clearly.and succinctly the measure of our obligation in a capital case. He said: “ A review of the facts means that we shall examine the evidence to determine whether in our judgment it has been sufficient to make out a case of murder beyond a reasonable doubt. We are obliged to weigh the evidence and form a conclusion as to the facts. It is not sufficient, as in most of the cases with us, to find evidence which presents a question of fact; it is necessary to go further before we can affirm a conviction and find that the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt.”

This defendant was convicted upon the altered and changed testimony of unreliable witnesses, upon conjecture and upon inferences flowing from inferences. [See 302 N. Y. 941; 303 N. Y. 627.]


text:
    In the Matter of Evelyn Epstein, Appellant, against Frederick G. Weisser, as Mayor, et al., Constituting the Board of Trustees of the Village of Great Neck Estates, Respondents.
    Argued May 22, 1951;
    decided July 11, 1951.

      H. Broadman Epstein and David Farber for appellant.

      Edward 8. Bentley for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lotjghran, Oh. J., Lewis, Conwat, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Floyd R. Mott, Appellant and Respondent, v. Good Roads Machinery Company of New York, Inc., Respondent and Appellant.
    Argued May 24, 1951;
    decided July 11, 1951.

      John A. Murray and Gerald W. O’Connor for appellant and respondent.

      Harold A. Segall for respondent and appellant.
   Judgment of the Appellate Division modified by reversing so much thereof as disallows any commission to plaintiff on the trailer award and by reinstating the allowance thereof, and, as so modified, affirmed, without costs. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ. Froessel, J., dissents and votes to affirm.


text:
    In the Matter of Douglaston Civic Association, Inc., Individually and on Behalf of its Members Owning Property Affected, et al., Appellants, against Board of Standards and Appeals of the City of New York et al., Respondents, and Abraham Weisinger, et al., Interveners, Respondents.
    Argued May 28, 1951;
    decided July 11, 1951.

      Victor Davis Werner for appellants.

      John P. McGrath, Corporation Counsel (Alfred Weinstein and Seymour B. Quel of counsel), for Board of Standards and Appeals, respondent.

      Bernard Margolis for Abraham Weisinger and another, intervener-respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ. Froessel, J., dissents for reasons stated in the opinion at Special Term.


text:
    The People of the State of New York ex rel. Alexander Bianculli, Appellant, against Thomas McDonnell, as Warden of the City Prison, Respondent. The People of the State of New York, Respondent.
    Submitted May 29, 1951;
    decided July 11, 1951.

      Aaron F. Goldstein and Marry J. McDermott for appellant.

      Miles F. McDonald, District Attorney (David Diamond of counsel), for respondents.
   Order affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of Dorothy J. Brown, Respondent, against Ray L. Lindbloom, as Superintendent of Public Schools in Elmont, et al., Appellants.
    Argued May 31, 1951;
    decided July 11, 1951.

      Harvey J. George and A. Holly Patterson for appellants.

      Jawn A. Sandifer for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    800 Union Street Corp., Appellant, v. Bookben Realty Corp., Respondent.
    Argued May 25, 1951;
    decided July 11, 1951.

      Max M. Bernstein and Edward Ingram for appellant.

      Emanuel Harris, Francis M. Verrilli and Max E. Greenberg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Appellant, v. Louis Di Bello, Respondent.
    Argued May 29, 1951;
    decided July 11, 1951.

      Charles P. Sullivan, District Attorney (Henry W. Schoher of counsel), for appellant.

      William V. Laviano and Norman B. Caridi for respondent.
   Order affirmed; no opinion.

Concur: Loitghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Nathan Werger et al., Respondents, v. Haines Corp. et al., Appellants, et al., Defendants.
    Submitted May 31, 1951;
    decided July 11, 1951.

      Morris Schmulbach for appellants.

      Reuben R. Kaufman for respondents.
   Judgment affirmed, with costs; no opinion. (Jenkins v. Moyse, 254 N. Y. 319; New York Credit Men’s Assn. v. Manufacturers Discount Corp., 298 N. Y. 640.)

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Feoessel, JJ.


text:
    George A. Langan, as Trustee of Onondaga Litholite Company, Bankrupt, Appellant and Respondent, v. First Trust & Deposit Company et al., Respondents and Appellants, et al., Defendants.
    Argued April 12, 1951;
    decided July 11, 1951.

      Laurence Sovik and Martin F. Kendrick for plaintiff, appellant and respondent.

      H. Duane Bruce for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Desmond, Dye, Fuld and Froessel, JJ. Conway, J., votes to reverse the judgment of the Appellate Division, with costs, and to reinstate the judgment of the Trial Term. Taking no part: Lewis, J.


text:
    Rudolph R. Loening, Appellant, v. Red Spring Land Company et al., Defendants, and Margaret P. Bucknall, Intervener, Respondent.
    Argued May 23, 1951;
    decided July 11, 1951.

      William F. Blealdey, David C. Bennett, Lewis F. X. Cotignola and George Q. Slocum for appellant.

      James H. Black, Harold E. Herrick and Frank Sowers for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, J J.


text:
    Harry A. Shean, Respondent, v. Rudolph R. Loening, Appellant.
    Argued May 23, 1951;

      decided July 11, 1951.

      Lewis F. X Cotignola and David G. Bennett for appellant.

      Charles E. Lapp, Jr., and James M. O’Connell for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughbah, Ch. J., Lewis, Cohway, Desmoto, Dye, Fuld and Fboessel, JJ.


text:
    Alice E. Pitts, Appellant, v. Joseph D. McGoldrick, State Rent Administrator, as Temporary State Housing Rent Commission, Respondent.
    Argued May 28, 1951;
    .decided July 11, 1951.

      Eugene B. Hurley for appellant.

      Beatrice Bhainswit and Bobert H. Schaffer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loixghran, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Edward M. MacKenna, Appellant.
    Submitted July 11, 1951;
    decided July 11, 1951.
   Motion for reargument denied. [See 298 N. Y. 494.]


text:
    Raleigh Associates, Inc., Appellant and Respondent, v. Ryder Henry, II, as Administrator with the Will Annexed of Emily S. Jackson, Deceased, Respondent and Appellant.
    Submitted July 11, 1951;
    decided July 11, 1951.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 302 N. Y. 467.]


text:
    The People of the State of New York ex rel. George Angelet, Appellant, against Robert E. Murphy, as Warden of Auburn Prison, Respondent.
    Submitted July 11, 1951;
    decided July 11, 1951.

      Nathaniel L. Goldstein, Attorney-General (William 8. Elder, Jr.', of counsel), for motion.

      Nicholas P. lannuzsi opposed.
   Motion granted and appeal dismissed.


text:
    Edwin S. Morgan, Appellant, v. Indemnity Insurance Company of North America, Respondent.
    Submitted July 11, 1951;
    decided July 11, 1951.
   Motion to amend the remittitur denied, with $10 costs and necessary printing disbursements. [See 302 N, Y. 435.]


text:
    The People of the State of New York, Respondent, v. Bernard Stein, Appellant.
    Submitted July 11, 1951;
    decided July 11, 1951.
   Motion for reargument and for assignment of counsel, etc., denied. [See 302 N. Y. 915; 303 N. Y. 627.]


text:
    Associated Metals & Minerals Corporation, Appellant, v. Bilgin Maden, Ltd., Defendant. United States of America, Respondent.
    Submitted July 11, 1951;
    decided July 11, 1951.

      Morris Kats for motion.

      Irving E. Saypol, United States Attorney for the Southern District of New York (Louis Grossman of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Ruth Zuckerbrod et al., Respondents, v. Board of Higher Education of the City of New York, Appellant.
    Submitted July 11, 1951;
    decided July 11, 1951.

      Benjamin M. Zelman for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, on the ground that the order does not finally determine any action or special proceeding within the meaning of the Constitution. [See 303 N. Y. 609.]


text:
    Manufacturers Trust Company, as Successor by Merger to Mortgage Corporation of New York, Trustee under a Declaration of Trust for the Benefit of Certificate Holders in Guarantee No. 206,829 of Bond and Mortgage Guarantee Company, Respondent, v. Apex Holding Corp., Appellant, et al., Defendants.
    Submitted July 11, 1951;
    decided July 11, 1951.

      Gerard I. Walters for motion.

      Meyer Levy opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    The People of the State of New York ex rel. Nathaniel I. Becker, Appellant, against Warden of Bellevue Prison Ward et al., Respondents.
    Submitted April 2, 1951;
    decided July 11, 1951.

      Nathaniel I. Becker, in person, for motion.

      Frank S. Hogan, District Attorney (Charles W. Manning of counsel), opposed.
   Motion dismissed. Appeal dismissed on the ground that no substantial constitutional question is thereby presented. [See 303 N. Y. 638.]


text:
    B & R Luncheonette, Inc., Appellant, v. Fairmont Theatre Corp., Respondent.
    Submitted June 1, 1951;
    decided July 11, 1951.

      Sidney J. Loeb and Alfred Sobol for motion.

      Thomas Bress and Leopold Friedman opposed.
   Motion dismissed on the ground that there is no showing that an appeal is pending in the Court of Appeals.


text:
    The People of the State of New York ex rel. Michael Bourke, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent.
    Submitted July 11, 1951;
    decided July 11, 1951.

      Nathaniel L. Goldstein, Attorney-General (Raymond B. Madden of counsel), for motion.

      Michael Bourke, in person, opposed.
   Motion granted and appeal dismissed on the ground that no constitutional question is presented. [See 303 N. Y. 624.]


text:
    Anna E. M. Imbrioscia, Appellant, v. Frank J. Quayle et al., Constituting the Board of Trustees of the New York Fire Department Pension Fund and the New York Fire Department Life Insurance Fund, et al., Respondents.
    Submitted July 11, 1951;
    decided July 11, 1951.

      John G. Esposito for motion.

      James N. Fazio opposed.
   Motion granted unless appellant serves and files the undertaking required by section 593 of the Civil Practice Act and pays $10 costs within ten days, in which events, motion denied.


author: Loughran, Ch. J.

text:
    Bridget F. Pike, as Administratrix of the Estate of Gilbert Pike, Deceased, Appellant, v. Consolidated Edison Company of New York, Inc., Respondent, et al., Defendants.
    Argued May 14, 1951;
    decided July 11, 1951.

      Benjamin H. Siff and Melvin Sacks for appellant.
    The evidence fully warranted the jury in finding that defendant-respondent should have known that work involving booms, cranes and cables was likely to occur in the vicinity of its wires at the time of the accident. (Carlock v. Westchester Lighting Co., 268 N. Y. 345; Braun v. Buffalo Gen. Elec. Co., 200 N. Y. 484; Casualty Co. v. Swett Elec. Light & Power Co., 230 N. Y. 199; Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345; Krastel v. Long Island Lighting Co., 272 App. Div. 833; Zuppa v. Central Hudson Gas & Elec. Corp., 277 App. Div. 1044; De Haen v. Rockwood Sprinkler Co., 258 N. Y. 350; Wall v. Harmosa Oil Corp., 268 App. Div. 926.)

      John M. Keegan, John D. Gray and William F. McCauley for respondent.
    I. There is no proof from which a jury might find that defendant-respondent had either actual or constructive notice of the operation of a crane near its wires. II. The court should take judicial notice of section 82d7-14.0 of the Administrative Code of the City of New York as indicative of the notice necessary to require defendant-respondent to protect its overhead wires against operation of cranes in street areas. (Buell v. Utica Gas & Elec. Co., 259 N. Y. 443; Schmeer v. Gas Light Co., 147 N. Y. 529.)
   Loughran, Ch. J.

This action to recover damages for wrongfully causing the death of the plaintiff’s intestate was brought against Consolidated Edison Company of New York, Inc., and George Cohan and Jennie Gurian, copartners doing business as Tri-Boro Transfer Trucking Co. The jury returned a verdict against all three defendants upon which judgment was entered. The defendants Cohan and Gurian chose not to challenge that judgment. But the defendant Consolidated Edison Company appealed to the Appellate Division where (1) the judgment insofar as it was against that company was reversed on the law and the facts; (2) so much of the complaint as sought damages from that company was dismissed on the law; and (3) that company was awarded costs against the plaintiff. This determination of the Appellate Division is now before us for review on an appeal of the plaintiff.

The intestate was employed as a steel worker by a construction company which is not a party to this action. On December 22, 1949, he and several coemployees undertook the task of unloading structural steel from a truck of the nonappealing defendant copartners that had been parked on a lot at 950 Georgia Avenue, Brooklyn. His part in that work was to stand upon the truck and there manually to control and direct a cable which was attached to the boom of a nearby crane. While he was so occupied, the truck (which had been parked upon •an incline) rolled toward the building line of Georgia Avenue and he was electrocuted when the cable in his hands came into.contact with a high tension electric wire of the defendant Consolidated Edison Company that had been placed in the adjacent street -by permission of the municipal authorities having jurisdiction.

The wire that killed the intestate was one of three live primary or high tension wires of the defendant Consolidated Edison Company. At a point 34 feet above the ground each of the three wires was affixed to a pole which that defendant had placed in the sidewalk area in front of the premises at 950 Georgia Avenue where the intestate was working on the occasion in question. None of the three wires was insulated. Each carried a lethal current of 2,400 volts. No sign or other notice called attention to the existence of that dangerous situation.

The opinion of the Appellate Division reads in part as follows: If appellant [Consolidated Edison Company] had knowledge of the conditions existing at the scene of the accident, the jury could properly have found that the happening of the accident was within the range of reasonable apprehension, and that appellant [Consolidated Edison Company] had failed to take the precautions commensurate with the danger involved. * * * In our opinion, however, there was no proof whatsoever that appellant [Consolidated Edison Company] had any notice of the operation of a crane in proximity to its wires. Mere knowledge that a building was to be erected on a lot fronting on a street over which appellant [Consolidated Edison Company] maintained its wires, even though coupled with the knowledge that a crane would be used in the course of the construction, was insufficient, without more, to charge appellant [Consolidated Edison Company] with the duty of de-energizing or moving its lines, or taking other precautions to avoid injury to persons working in the vicinity.” (277 App. Div. 1120, 1121.)

We cannot agree to that characterization of this case as one in which the defendant Consolidated Edison Company had mere knowledge of the contemplated erection of a building near its Georgia Avenue high tension wires. Long before the day of the accident, the Consolidated Edison Company had received for its own use copies of officially approved plot plans for the construction of a new building at 950 Georgia Avenue. These plans furnished the following data: (1) The new building was to be a brick and concrete structure 19 feet 11 inches high; (2) the easterly wall thereof was to extend along the Georgia Avenue building line for a distance of 32 feet; (3) the top of that wall was to be 14 feet beneath the Georgia Avenue high tension wires of the defendant Consolidated Edison Company. When a representative of that defendant called at 950 Georgia Avenue on December 13,1949, he observed there the unloading of building materials and noticed the completed installation of a number of footings on which the overhead structure was to rest. The defendant Consolidated Edison Company was not unaware of the common use of cranes and booms in the erection of buildings and, in the opinion of a witness who was a member of its engineering staff, the use of an 80-foot boom on the occasion in question was not at all extraordinary. A division engineer in the company’s transmission and distribution bureau testified that its Georgia Avenue high tension wires could have been de-energized by other equipment in the company’s possession.

Even so, the defendant Consolidated Edison Company says it was entitled to “ actual notice ” of the time when a crane would be in operation at 950 Georgia Avenue and the Appellate Division so held. We cannot adopt that idea, because (as we have seen) the defendant Consolidated Edison Company had full, exact and early information of the nature of the building operation that was being carried on at 950 Georgia Avenue and thus that company had been warned of the probability that workmen erecting the overhead structure there would perchance be exposed to the undisclosed deadly peril which caused the death of the intestate. In these circumstances, the defendant Consolidated Edison Company was bound to ascertain the time when the work of building the overhead structure at 950 Georgia Avenue was to begin, in order to enable itself to protect workmen against the danger that was there hidden in its high tension wires — or so a jury could find (see Braun v. Buffalo Gen. Elec. Co., 200 N. Y. 484, 490-492; Casualty Co. v. Swett Elec. Light & Power Co., 230 N. Y. 199, 202; cf. Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345, 348).

The judgments should be reversed and a new trial granted, with costs in this court and in the Appellate Division to abide the event.

Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgments reversed, etc.


author: Fuld, J. Dye, J. Conway, J.

text:
    In the Matter of the Claim of Mary S. McCormack, Respondent, against National City Bank of New York et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued May 14, 1951;
    decided July 11, 1951.

      Charles P. Barre for appellants.
    I. There is no proof of an industrial accident within the meaning of the law. (Matter of Wilson v. General Motors Corp., 298 N. Y. 468; Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459; Matter of Lorchitsky v. Gotham, Folding Box Co., 230 N. Y. 8; Matter of Eldridge v. Endicott, Johnson & Co., 228 N. Y. 21; Matter of Hansen v. Turner Constr. Co., 224 N. Y. 331; Matter of Fish v. Wickwire Spencer Steel Co., 258 N. Y. 539; Matter of Collins v. Brooklyn Union Gas Co., 171 App. Div. 381; Matter of Cooley v. Heaney Co., 249 N. Y. 395; Matter of Kleid v. Carr Bros., 300 N. Y. 270; Matter of Welz v. Markel Service, Inc., 296 N. Y. 640.) II. There is no competent and probative medical evidence that the death of deceased resulted from an accident, but instead the medical proof relates death solely to natural causes. (Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; Matter of Williams v. Pittsburgh Plate Glass Co., 268 App. Div. 334; Matter of Dyviniek v. Buffalo Courier Express Co., 296 N. Y. 361; Matter of Kristiansen v. Frank McWilliams, Inc., 275 App. Div. 1009, 300 N. Y. 728.)

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    I. Ample evidence supported the finding of the Workmen’s Compensation Board that decedent was disabled and died as a result of accidental injuries which arose out of and in the course of his employment. (Matter of Kleid v. Carr Bros., 300 N. Y. 270; Matter of Bollard v. Engel, 278 N. Y. 463; Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Carpenter v. Sibley, Lindsay & Curr Co., 302 N. Y. 304; Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83; Matter of Driscoll v. Gillen & Sons Lighterage, Inc., 226 N. Y. 568; Matter of Hoffman v. New York Central R. R.

      Co., 290 N. Y. 277; Matter of Welz v. Markel Service, Inc., 270 App. Div. 15, 296 N. Y. 640; Matter of Dept. of Taxation & Finance [Thomas] v. Cohen, 298 N. Y. 825; Matter of Schmitt v. Bay Ridge Hosp., 277 App. Div. 957.) II. Ample evidence supported the determination of the Workmen’s Compensation Board that causal relationship existed between the accident and decedent’s disability and death. (Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459; Matter of Green v. Geiger, 253 App. Div. 469, 280 N. Y. 610; Matter of Malgieri v. General Elec. Co., 258 N. Y. 620; Matter of Ruzsjak v. Metal Stamping Co., 259 N. Y. 575; Matter of Rosenberg v. Netherland Cab Co., 269 App. Div. 914; Matter of Johnson v. Dodds Co., 268 App. Div. 840; Matter of Roblee v. New York Tel. Co., 235 App. Div. 754; Matter of Cordero v. Hotel New Yorker, 260 App. Div. 821.)
   Fuld, J.

On the morning of December 18, 1945, Hugh Scott, an elevator operator, had been helping a mechanic repair an elevator in their employer’s building. The work completed, except for the installation of a bolt, the mechanic went for a special type of wrench to fasten the bolt, leaving Scott standing in the corridor near the elevator with nothing to do. A few minutes later, Scott was found on the corridor floor, unconscious and on his back, with froth coming from his mouth. The elevator had not been moved and the bolt had not been touched. No one had seen Scott fall, and, when he regained consciousness, he said that he did not know what had happened. He died some two weeks later, the autopsy revealed, from a cerebral hemorrhage caused by the rupture of a pre-existing aneurysm, situated at the base of the brain. The autopsy report also indicated that there were no scars on Scott’s face, no marks on his body and no fracture of his skull.

An award to Scott’s dependents was made by the Workmen’s Compensation Board, and affirmed by the Appellate Division, on the ground that the employee had been the victim of an industrial accident and that his fall had not been occasioned by any underlying pathological condition ”.

While a reviewing court may not substitute its own judgment on the evidence for that of an administrative tribunal, it will not. of course, accept or confirm a determination merely because made by such an agency. Our study of the present record demonstrates that the finding that there was an accident, far from being supported by substantial evidence, rests wholly upon conjecture. There is no evidence that Scott was working in or about the elevator when he fell, that he struck his head before he fell or suffered any trauma, or that the fall was caused by any exertion or strain — usual or unusual —• or by any condition of his employment. Absent such proof, the only reasonable conclusion possible is that the aneurysm ruptured spontaneously and that it was that that rendered him unconscious and caused him to fall to the floor.

The sole item in the record that might conceivably be claimed to support the finding of accident is the testimony of a physician, Dr. David Shapiro — who had made a “ casual ” examination of Scott immediately after his collapse — that he noticed a slight skin abrasion on Scott’s forehead and that, while there was no doubt that the aneurysm could have ruptured spontaneously, there was a possibility that the rupture might have been caused by a blow, if indeed there had been a blow. There is, as already noted, no proof of any blow, and Dr. Shapiro himself acknowledged that he had " no way of determining ’ ’ what had caused the abrasion or even when it had been sustained. Quite obviously, the statement of such a possibility, founded as it was upon a hypothesis having no support in the record, is a far cry from proof of any fact, and may not, even when considered alone, be deemed to satisfy the requirements of the substantial evidence rule. And, when viewed in the light of the record as a whole — as, of course, it must be (see Matter of Stork Restaurant, Inc., v. Boland, 282 N. Y. 256, 275; see, also, Universal Camera Corp. v. National Labor Relations Bd., 340 U. S. 474, 487 et seq.; Benjamin, Judicial Review of Administrative Adjudication, 48 Col. L. Rev. 1, 2-3) — there can be no doubt whatsoever that the doctor’s surmise of what might have been, may not be regarded as substantial, for opposed to it is not only proof that Scott collapsed while waiting, with nothing to do, for his fellow-employee to return; not only proof that he died of a ruptured aneurysm of long standing; but also positive and unequivocal testimony of two other physicians, experienced neurologists, that the rupture was spontaneous and could not have been caused by any trauma. (See, e.g., Matter of Kristiansen v. Frank McWilliams, Inc., 300 N. Y. 728; Matter of Fish v. Wickwire Spencer Steel Co., 258 N. Y. 539; Matter of Hansen v. Turner Constr. Co., 224 N. Y. 331; Matter of Williams v. Pittsburgh Plate Glass Co., 268 App. Div. 334.)

Cases such as Matter of Green v. Geiger (253 App. Div. 469, 255 App. Div. 903, affd. 280 N. Y. 610), relied upon to support the award, are not in point. In the Geiger case, there was present — what is here lacking — significant proof that, immediately before the employee collapsed of a coronary thrombosis, he had been subject to work involving unusual exertion and physical strain which had put a heavy burden on his already weakened heart. On the other hand, persuasive precedent is furnished by such cases as Matter of Kristiansen v. Frank McWilliams, Inc. (supra, 300 N. Y. 728), Matter of Fish v. Wickwire Spencer Steel Co. (supra, 258 N. Y. 539), and Matter of Hansen v. Turner Constr. Co. (supra, 224 N. Y. 331), in each of which we reversed an award in favor of the claimant because there was no evidence of an industrial accident. In the Fish case (supra, 258 N. Y. 539), for example, an employee, who had been at work in a factory, was discovered lying unconscious on a cement platform with a cut over one eye. No one had witnessed an accident and no one had seen him fall. It was later ascertained — just as in this case — that death was owing to the rupture of an aneurysm, and — again, just as in the present case — a doctor testified that a blow could have produced the rupture. This court reversed the board’s determination “ on the ground that the evidence does not show that the death was due to an accident arising out of the employment ” (p. 540). So, here, while Scott’s collapse occurred “ in the course of ’ ’ his employment, there is no evidence to indicate that his death stemmed from any accident, much less from an accident “ arising out of ” such employment.

Nor may the determination be rested upon the presumption created by section 21 of the Workmen’s Compensation Law. Compensation awards have, it is true, been upheld times without number on the strength of that presumption in cases where, there have been obvious signs of violent injury, causing disability. to furnish basis for a finding that the accident, which no one had witnessed or observed, arose “ out of and in the course of ” employment. (See, e.g., Matter of Kleid v. Carr Bros., 300 N. Y. 270; Matter of Welz v. Markel Service, Inc., 296 N. Y. 640; Matter of Gallagher v. Mundett Cork Co., 295 N. Y. 576.) The presumption, however, is a limited one, operating, the statute specifies, only “in the absence of substantial evidence to the contrary ”. Moreover, as this court has frequently ruled, “it cannot be used as a substitute for actual proof ”. (Matter of Wilson v. General Motors Corp., 298 N. Y. 468, 472; see, also, Matter of Dyviniek v. Buffalo Courier Express Co., 296 N. Y. 361, 364.) Consequently, where as in the present case, there is no evidence at all of industrial accident or of accidental injury, the lack of such evidence may not be supplied by the presumption; in other words, section 21 may not be availed of, or the presumption utilized, to establish the incident of accident itself. (See, e.g., Matter of Kristiansen v. Frank McWilliams, Inc., supra, 300 N. Y. 728; see, also, Matter of Dyviniek v. Buffalo Courier Express Co., supra, 296 N. Y. 361, 364; Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459, 466; Matter of Lorchitsky v. Gotham Folding Box Co., 230 N. Y. 8, 12; see, also, Matter of Pinto v. Chelsea Fibre Mills, 196 App. Div. 221, 223.) In any event, even if it were held that the presumption had some proper place in this case, it could not survive the unquestionably “ substantial evidence to the contrary ”— evidence that Scott’s collapse and death resulted from a spontaneous rupture of a pre-existing aneurysm and could not have been caused by any blow or other trauma.

The order of the Appellate Division and the award of he Workmen’s Compensation Board should be reversed, with costs in this court and in the Appellate Division, and the claim for compensation dismissed.

Dye, J.

(dissenting). When the Appellate Division unanimously affirmed the finding of the Workmen’s Compensation Board that the decedent’s disability and death were the proximate result of an injury sustained in and by reason of his employment, it placed such factual issue beyond our reach (Workmen’s Compensation Law, § 20) except as provided in section 23 of the Workmen’s Compensation Law.

The employer and its carrier discern a reviewable question of law based on an alleged erroneous application of the presumption provided for use in an unwitnessed accident case (Workmen’s Compensation Law, § 21), it being claimed the proof failed to establish the happening of an' accident, absent which the presumption is unavailing. I agree that the presumption may not be used as a substitute for proof of accident and that it is only available in unwitnessed accident cases when the happening of an accident has been established. Here there is affirmative proof of accident giving rise to the presumption that the claim was within the provisions of the Workmen’s Compensation Law. What is lacking is substantial evidence to the contrary ”, absent which the presumption must be made effective.

As I see it, this is a typical unwitnessed accident case. The proof establishes that the deceased was found unconscious on his employer’s premises during working hours in a place where he had been assigned to do work in the repair of an elevator and that when found his body bore marks of injury; that while engaged in such work, which for the time being was not completed— but only temporarily interrupted for lack of a tool which a fellow employee had gone to get— and while his fellow employee was so absent, a patron of the building found the decedent lying on the floor near the elevator, his tools scattered about him and an oily rag near his hand. A physician who came almost immediately and concededly before decedent had been moved, testified at the hearing that decedent was entirely unconscious ” — in quite severe shock” — that there was an area of skin abrasion and discoloration on the right side of the forehead ” — which would indicate that he had received some degree of trauma ” —that it was a mechanical injury of some sort ”, and that “ there was evidence of severe cerebral concussion ”. This witness in his attending physician’s report had stated that the accident sustained on December 18, 1945, was a competent producing cause of injury, which statement was repeated in a report filed after decedent’s death. When asked his views in light of the autopsy, report that death had resulted from the rupture of a pre-existing aneurysm the possibility of contributory traumatic causation was not excluded, but reassorted. In the hearing minutes we may read, viz.: “ Q. What did you have in mind, Doctor, when you said in your C64 that the injury received on December 18, 1945, that it indirectly caused the death? A. If this man had a fall and he struck his head, if that were the history that could be determined then 1 would say that the fall could cause a hemorrhage at the base of the brain. That is, the fall could cause that aneurysm to rupture even though he had an aneurysm there.”

At another point, to use the physician’s own language: “ We also know that an aneurysm can rupture spontaneously but it can also rupture from a blow. * * * We don’t know just when that aneurysm broke, whether it broke the first day [Dec. 18th when deceased was found unconscious by the elevator] or the second time it happened [Dec. 28th when deceased in attempting to get out of bed became dizzy, fell and struck his head] or the third time [on Jan. 1st when he suffered a convulsion and died]. ’ ’

No evidence was offered which in any way disproved the existence of the abrasion and discoloration or which might give rise to an inference that it had not accidentally occurred on the job. The employer and the carrier challenge its causal connection giving rise to a question of weight of evidence rather than proof. They produced medical experts who had not seen or treated the decedent in his lifetime but who depended on their professional experience and the report of autopsy to testify that in their opinion, the injury was superficial, did not cause death or contribute thereto but that death was due solely to the spontaneous rupture of the pre-existing aneurysm. The board and the court below were not bound to accept this opinion testimony and reject the claimant’s testimony but were entitled to exercise their independent judgment (People ex rel. Third Ave. R. R. Co. v. State Bd. of Tax Comrs., 212 N. Y. 472; Commercial Cas. Ins. Co. v. Roman, 269 N. Y. 451) and this is permissible even in the face of medical opinion that cause of death, whether by accident or natural causes, could not be determined (Matter of Green v. Geiger, 253 App. Div. 469, 255 App. Div. 903, affd. 280 N. Y. 610). The test of the matter is not what ultimately caused death — in this instance, a massive hemorrhage at the base of the brain — but whether there had been an industrial accident within the contemplation of the Workmen’s Compensation Law. We may not rule out evidence of the obvious head injury as being so insubstantial as to be no evidence and upon which the board was not justified in relying. Such a proposition would, of course, be contrary to every concept of the Workmen’s Compensation Law. Many an injury — trivial when suffered by a normally well person — has lighted up a latent pathological condition leading to serious and sometimes fatal results and has entitled the victim or his dependents to compensation benefits. This is as it should be and there is nothing here to warrant making an exception to this well-recognized rule.

The compensation law from the beginning has received, and quite properly so, a liberal interpretation in accordance with its remedial character as a broad social enactment. We have recently ruled that an industrial accident is not to be determined by legal definition “ but by the common-sense viewpoint of the average man ” (Matter of Masse v. Robinson Co., 301 N. Y. 34, 37; Matter of Carpenter v. Sibley, Lindsay & Curr Co., 302 N. Y. 304), nor do we think that under the circumstances the award is lacking in proof because the decedent subsequent to regaining consciousness was unable to state how the accident had happened, for absent such statement, there was nonetheless an independent and obvious mark of injury on his forehead which was not explained away. There was proof and enough to sustain the finding of an accidental injury, justifying the presumption that such injury was sustained in and by reason of the employment. Here such presumption was not overcome.

The order appealed from should be affirmed, with costs.

Conway, J.

(dissenting). I concur with Judge Dye.

The board in its findings determined that the deceased was employed as an elevator operator and helper to the elevator mechanic; that while the deceased was assisting the elevator mechanic in repairing a passenger elevator, at the employer’s business building in New York.City and was engaged in the regular course of his employment, he accidentally fell and struck his head; that as a result of the fall, the deceased sustained accidental injuries in the nature of a cerebral concussion, rupture of a pre-existing aneurysm and a hemorrhage of the brain resulting in his death on January 1, 1946; that his death was the natural and unavoidable result of the accidental injuries which he sustained on December 18, 1945, and the consequences and results flowing therefrom; that when found on December 18th at 10:00 a.m., the deceased was lying unconscious on the floor of the second-story corridor of his employer’s premises where he was employed; that his body was in a diagonal position with his feet about six inches and his head about two feet from the elevator which he had been repairing, with oily cloths lying about; that there was an area of skin abrasion and discoloration on the right side of his forehead; that the fall which he sustained was accidental and was not caused by reason of any underlying pathological condition or any other inherent factor or condition and arose out of and in the course of his employment. The award was unanimously affirmed by the Appellate Division.

The only evidence offered by the employer and the insurance carrier was the testimony of two doctors who had never seen the deceased and who gave opinion evidence. It was their opinion that the death of deceased was caused by the pre-existing aneurysm and was not the result of an accident.

Doctor Shapiro, who was called when the deceased was found lying on the second floor of the employer’s building and who later testified in this proceeding for the claimant, said that when he examined the deceased, there was an area of skin abrasion and discoloration of the right side of the forehead and that the patient was lying on his back. He was then asked whether he could tell from his examination what type of injuries might have caused the abrasion and discoloration. He said: “ He might have struck the area. There was a mechanical injury of some sort. I mean, it is hard to tell whether he was struck over the head by a blunt object or hit it against something. You know that abrasions are caused by some degree of injury and, of course, the discoloration also. But, I mean, the nature of the injury — I can’t possibly determine by the effect.”

Again, he said at folios 393 to 395: “ Q. Doctor, is there any medical way of determining whether or not this hemorrhage from which Mr. Scott was suffering from on December 18th came from a prior condition of Mr. Scott or was induced by some outside forces? A. Well, there is no accurate way of stating definitely. We know he had a hemorrhage of the brain. I also take it for granted you are referring to an autopsy report of .which I received a copy of, indicating that the man had a ruptured aneurysm at the base of the brain. We know definitely that aneurysm pre-existed. There is no question about that because it takes an extended period of time for an aneurysm to form. We also know that an aneurysm can rupture spontaneously but it can also rupture from a blow. Now, which came first? That is, whether the aneurysm ruptured spontaneously or he had received a blow of some sort — I have definitely no way of determining, in all fairness to all parties concerned.” (Emphasis supplied.)

In view of (1) those facts and the inferences which the board found flowed reasonably therefrom, (2) the presumption under section 21 of the Workmen’s Compensation Law that the claim comes within the provision of the chapter, and (3) the basic rule of administrative law, embodied in section 20 of the Workmen’s Compensation Law, that the decision of the board is final as to all questions of fact, we may not under our jurisdiction say that the award was unsupported by any evidence in the record.

The presumption in section 21 has been prescribed by our Legislature by reason of the difficulty in establishing the cause of death in cases, among others, where the person injured dies as a result of an unwitnessed occurrence, so that, as a social problem, his dependents may not suffer because there were no witnesses present. In such cases external injuries and the position of the body when found are facts from which the board may draw inferences which even under common-law rules may not be rebutted as a matter of law by opinion evidence. At common law, the trier of the facts may disregard opinion evidence if his judgment indicates that that should be done or he may give it such weight as he sees. fit.

The only evidence here in contradiction of the facts found and inferences drawn by the board is that of two opinion witnesses. That opinion testimony, even if uncontradicted, which was not the case here, was subject to the exercise by the board of its independent judgment. Thus, in People ex rel. Third Ave. R. R. Co. v. State Bd. of Tax Comrs. (212 N. Y. 472, 485), we said: “ * * * Opinion testimony, even if uncontradicted, was subject to the exercise by the trial court of its independent, judgment. While it is, speaking generally, true that a jury has not the right, arbitrarily, to ignore or discredit the testimony of unimpeached disinterested witnesses, so far ,as they testify to facts, and that willful disregard of such testimony will be ground for a new trial, no such obligation attaches to witnesses who testify merely to their opinion; and the jury may deal with it as they please, giving it credence or not as their experience or general knowledge of the subject may dictate. (The Conqueror, 166 U. S. 110.) * * *."

Similarly, we said in Commercial Cas. Ins. Co. v. Roman (269 N. Y. 451, 456-457): * * * Even though no testimony was offered by the plaintiff to contradict the testimony of these experts, it was still within the province of the jury to reject their testimony altogether. The weight to be given to opinion evidence ordinarily is entirely for the determination of the jury. * * *” To the same effect are Ensign v. Travelers Ins. Co. (193 App. Div. 369, 386-387, affd. 233 N. Y. 521); Matter of Horton (272 App. Div. 646, 651, affd. 297 N. Y. 891); Lipson v. Bradford Dyeing Assn. (266 App. Div. 595, 598); Shabotzky v. Equitable Life Assur. Soc. (257 App. Div. 257, 260).

Much more so is that the case in workmen’s compensation cases since the act was passed as a new step forward in the field of social legislation and originally provided, as it still does (§ 118, formerly § 68), that the board was not to be bound either by common-law or statutory rules of evidence but was to act on the hearing in such manner as to ascertain the substantial rights of the parties.

The case of Matter of Green v. Geiger (253 App. Div. 469, 255 App. Div. 903, affd. 280 N. Y. 610) seems to me clearly in point. There the medical opinion witnesses testified that it could not be determined whether the deceased came to his death by accident or natural causes. Despite the non-opinion evidence to the effect that the deceased had sustained an accidental injury, the board folloioed the doctors and found there was no accident. The Appellate Division, in an excellent opinion, reversed and sent the proceeding back to the board, saying (253 App. Div., p. 471): “ The record indicates that the Board thought that the evidence would not justify a finding of accidental death in view of the testimony of the health officer that he did not know whether the alleged accident was indirectly the cause of death. We infer that if the physician had testified that in his opinion the exertion did aggravate the heart condition and indirectly bring about death, the Board would have felt justified in making á finding to that effect. It is apparent that the physician could not thus testify with certainty. The law does not require proof of such positiveness. It is sufficient if from the facts a reasonable inference arises that the exertion caused the death ” (emphasis supplied). After a rehearing, the board found for the claimant and its award was affirmed by the Appellate Division (255 App. Div. 903) and this court (280 N. Y. 610). The medical testimony in the Green case (supra) was substantially the same as that of Doctor Shapiro here and the board, in here finding that there was an accident, drew the inference suggested in the Green case. The board did not have to believe the opinion testimony of the insurance carrier’s medical witnesses as against the facts and inferences warranted by the other evidence. See, also, Matter of Welz v. Markel Service, Inc. (270 App. Div. 15, affd. 296 N. Y. 640); Matter of Lauer v. Y. M. & W. H. A. of The Bronx (266 App. Div. 42, 269 App. Div. 870, motion for leave to appeal denied 295 N. Y. 990); Matter of Hoffman v. New York Central R. R. Co. (290 N. Y. 277).

The order appealed from should be affirmed, with costs.

Loughran, Ch. J., Desmond and Froessel, JJ., concur with Ftjld, J.; Dye, J., dissents in opinion in which Lewis, J., concurs ; Conway, J., concurs with Dye, J., in a separate opinion.

Order reversed, etc.


author: Froessel, J. Desmond, J.

text:
    Freeman Manley, Respondent, v. New York Telephone Company, Appellant.
    Argued May 23, 1951;
    decided July 11, 1951.

      Patrick J. Tierney and Irving W. Young for appellant.
    I. Plaintiff failed to prove any facts which would have justified a jury in concluding that plaintiff suffered an electric shock from contact with defendant’s telephone. (Braun v. Buffalo Gen. Elec. Co., 200 N. Y. 484; Wilks v. New York Tel. Co., 243 N. Y. 351; Robertson v. Rockland Light & Power Co., 187 App. Div. 720; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Paolantonio v. Long Island R. R. Co., 274 App. Div. 1063, 300 N. Y. 640; Ward v. Iroquois Gas Corp., 233 App. Div. 127; Messing v. State of New York, 197 Misc. 907; Lane v. City of Buffalo, 232 App. Div. 334.) II. Plaintiff failed to prove any negligent act of commission or omission by direct proof, inference or circumstance, and to have submitted the case to a jury would have been to permit a verdict based on guesswork, surmise and conjecture. (Lahr v. Tirrill, 274 N. Y. 112; Messing v. State of New York, 197 Misc. 907; Lane v. City of Buffalo, 232 App. Div. 334; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90.) III. The doctrine of res ipsa loquitur has no application. (Galbraith v. Busch, 267 N. Y. 230; Griffen v. Manice, 166 N. Y. 188; Sandler v. Garrison, 249 N. Y. 236; George Foltis, Inc., v. City of New York, 287 N. Y. 108; Paolantonio v. Long Island R. R. Co., 274 App. Div. 1063, 300 N. Y. 640.) IV. No evidence has been introduced to establish by direct proof, inference or circumstance, that plaintiff’s stroke was caused by the use of the telephone. (Matter of Sherman v. Orwasher, 229 App. Div. 39; Matter of Metz v. Gallagher, 223 App. Div. 548; Meiselman v. Crown Heights Hosp., 285 N. Y. 389; Shaw v. Tague, 257 N. Y. 193; Reid v. Westchester Lighting Co., 236 N. Y. 322.)

      F. Walter Bliss, John S. Hall and Robert H. Ecker for respondent.
    I. The rule of res ipso loquitur applies to this case and the trial court erred in granting a nonsuit. (Plumb v. Richmond Light & R. R. Co., 233 N. Y. 285; George Foltis, Inc., v. City of New York, 287 N. Y. 108; Bressler v. New York R. T. Corp., 270 N. Y. 409; Robinson v. Consolidated Gas Co., 194 N. Y. 37; Griffen v. Manice, 166 N. Y. 188; Breen v. New York Central & H. R. R. R. Co., 109 N. Y. 297; Volkmar v. Manhattan Ry. Co., 134 N. Y. 418; Wilks v. New York Tel. Co., 243 N. Y. 351; Delahunt v. United Tel. & Tel. Co., 215 Pa. 341.) II. Plaintiff’s proof of the accident, the surrounding circumstances, and his injuries were sufficient to invoke the operation of the rule of res ipso loquitur. (Rosenberg v. Schwarts, 260 N. Y. 162; Betsag v. Gulf Oil Corp., 298 N. Y. 358; Dillon v. Rockaway Beach Hosp. & Dispensary, 284 N. Y. 176.)
   Froessel, J.

In this action to recover damages for a paralysis of his right side, plaintiff alleged in his complaint that while removing a telephone receiver in Schroon Lake, New York, he “ received a violent charge of electricity which knocked [him] down on the floor ” as the result of defendant’s negligence. In his bill of particulars, he charged that a circuit in the city of Glens Falls connecting with the Schroon Lake telephone line was improperly wired, and was in close proximity to a power line, and poorly insulated. His counsel in his opening statement asserted he would show that while plaintiff at Schroon Lake spoke over the telephone to his employer in a restaurant at Glens Falls at the time of the occurrence complained of, li both of them were knocked unconscious by an electric shock ”. No such proof was adduced at the trial; his employer was not even called as a witness.

In an effort to support his claim, plaintiff, sixty-five years old, testified that he was employed by one Clarence Seeley on his farm at Schroon Lake, and prior to the occurrence complained of was engaged in the cutting of logs in the woods. At about 9:00 p.m. on February 16, 1949 — a “ nice ”, “ clear ” and “ quite cold ” evening — the telephone in his employer’s residence rang. It was an old-fashioned crank type instrument that hung on the wall. The following sequence of events then ensued: (1) plaintiff removed the receiver from the hook; (2) bells “ jingled ” as if someone on the line were calling; (3)'he- said, “ Hello ”; (4) he heard someone say “ Hello ”, and (5) recognized that- it was his employer’s voice. At least throughout this brief period nothing untoward happened and the telephone did him no harm. Then, he said, “ I got knocked out. I took the receiver doivn and said, ‘ Hello.’ That’s all I know. I was knocked out.” There is not a scintilla of evidence as to what “ knocked ” him out. There was no proof of any loud or cracking noise, of any damage to the diaphragm of the telephone receiver or earpiece or any other part of the instrument, or any flash or flame or flaring of electricity around the telephone or of any burns on plaintiff’s body, as in many of the cases cited by plaintiff. Indeed, there was no evidence whatever of any burn or mark on, or unusual sensation in, plaintiff’s ear or hand, which were in contact with the telephone, nor of any damage to his clothing.

After he regained consciousness, his employer’s wife, Mrs. Seeley, returned to the house, helped him to a chair, where he sat for an hour or two; he then went to bed, remaining there for three days. In describing his feelings following this occurrence, he said: 11 Well, my right side, arm, leg, prickled — felt just like your foot being asleep, no use of it. * * * Well, as I say, I felt just as though my side was all afire, prickled. * * * My right side.”

He did not try to resume his customary work for- the first two or three months, and then felt “ weak ”, “ all in ”, and had “ dizzy spells.” More than fifteen months after the accident and about ten days before the trial, he testified that while raking leaves, he had the same sensation as he did following the so-called accident: “ I was all in. My whole side was all afire, prickled, just like electric shock.” He does not claim that this was an electric shock. He never consulted a physician in relation to the occurrence complained of until a few days before trial, obviously in preparation therefor. He did, however, see doctors on two occasions meanwhile, but for other ailments — lameness and gangrene of the foot; he did not tell them about this accident — “ not a bit.” He never reported the accident to defendant, and did not commence this action until a year later.

Mrs. Seeley, his only other lay witness, added very little to his testimony. She returned to the house at about 9:15 p.m., and found plaintiff on the floor trying to get up; he could not talk coherently; he “ wasn’t himself ” but was “ unconscious ”. The telephone was a local battery installation on a party line of eleven instruments, any of which could be called without using the central switchboard simply by ringing the proper signal. She further stated: “ the telephone rang practically all day, because there are so many people on our line ”; and she herself had used it shortly before six o’clock that very evening. After she discovered plaintiff, she noticed the telephone receiver hanging but did not replace it until the next morning, after plaintiff told her what happened. The telephone line was used that following day; she heard it ring several times. She never notified defendant of plaintiff’s accident.

Plaintiff’s remaining witness was a doctor who never treated him, but merely examined him a few days before the trial. He testified: ‘ ‘ The findings were really of two phases, I felt. One was based, I believe, on direct trauma. He had complained of pain in the right shoulder and pain in the right knee, and those, I felt, were * * * based on direct trauma.” X-rays were negative, but on palpation he found pain and tenderness over the right shoulder, with restriction. “ The other findings were, I believe, based on a neurologie basis # * * and I believe those are based on some injury or some accident that may have occurred in the brain. I believe that this patient had a stroke * * * he showed residual signs of a right hemiplegia or a right side stroke.” The entire right half of the body was affected.

No hypothetical questions were asked of the doctor to show that an electric shock at the time in question was in his opinion the competent producing cause of the paralytic stroke or the alleged shoulder injury; nor was there any evidence to relate the stroke to any electric shock sustained over the telephone. Indeed, his whole testimony was vague, he gave no opinion based on reasonable certainty, and at best predicated his ' “ findings ” upon such statements as “ I felt ” and “ I believe ”.

At the close of plaintiff’s case, the trial court dismissed his complaint. The majority of the Appellate Division reversed, stating in its opinion that the rule of res ipso loquitur applied, that the “equivocal medical proof in the record ” would support an inference “ that the physician was of opinion that part of the plaintiff’s condition was due to trauma and shock it was conceded that no one in terms has testified that he did [receive an electric shock], either directly or as an informed opinion ”, but the thought was expressed that a jury might nevertheless decide that he had, as an ordinary result “ of what has become a common natural phenomenon.” (277 App. Div. 601, 603.)

With this conclusion we cannot agree, for we find no evidence in the record which would justify a jury in determining that plaintiff suffered an electric shock or other injury from contact' with defendant’s telephone, resulting in paralysis of his right side. By his complaint and bill of particulars, plaintiff unmistakably informed defendant that he would offer direct proof of negligence; this he utterly failed to do, and he now relies on the doctrine of res ipso loquitur.

We have observed in other cases, what is common knowledge, that the telephone, unlike many other electrically operated instruments, does not ordinarily carry a current of sufficient voltage to be dangerous or to cause serious shock or injury to one who comes in contact with it (Braun v. Buffalo Gen. Elec. Co., 200 N. Y. 484, 488; Wilks v. New York Tel. Co., 243 N. Y. 351, 356). This record may be searched in vain for any evidence, direct or circumstantial, to establish prima facie that the telephone in question carried a high voltage of electricity, or that plaintiff received an electric shock or any other injury as the result of contact with said instrument. Although it is clear that plaintiff had an experience while using the telephone, we have no way of inferring short of sheer speculation what that experience was. He never once said he felt an electric shock. All the surrounding circumstances point the other way. What he did say was that he answered the telephone, which was then apparently functioning properly, for he had time to exchange greetings with Mr. Seeley and to recognize his voice; it was after this exchange of greetings, he stated, that he got knocked out ” and that is all he knew. He produced no other proof. As a layman he is not in a position to express an opinion as to what caused his paralysis, neither is a jury, nor are we.

His doctor’s failure to relate the paralytic stroke to any alleged electric shock at a telephone has already been adverted to, and the absence of competent medical proof alone would be sufficient to defeat plaintiff’s claim. (Schlesinger v. New York Tel. Co., 296 N. Y. 537; Reid v. Westchester Lighting Co., 236 N. Y. 322, 324; Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188, 195.)

In a res ipso case, as in any other, the plaintiff must establish first and foremost the nature of the instrumentality which is alleged to have caused the injury — here, “ a violent charge of electricity ” — and its identity with the defendant (Paolantonio v. Long Island R. R. Co., 300 N. Y. 640; Galbraith v. Busch, 267 N. Y. 230). While the actual sequence of events may be established by inference (see, e.g., Betzag v. Gulf Oil Corp., 298 N. Y. 358; Bressler v. New York R. T. Corp., 270 N. Y. 409, 277 N. Y. 200; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1), the circumstances must be such as to indicate negligence, and there must be more than mere speculation, guess or surmise (Lahr v. Tirrill, 274 N. Y. 112, 117; Digelormo v. Weil, 260 N. Y. 192, 199; Ingersoll v. Liberty Bank of Buffalo, supra, p. 7; Ruback v. McCleary, Wallin & Crouse, supra). The defendant is not an insurer (Storm v. New York Tel. Co., 270 N. Y. 103), and the mere fact that an accident has happened and that injury followed does not give rise to a presumption of negligence on the part of the one charged (Eaton v. New York Central & H. R. R. R. Co., 195 N. Y. 267). The maxim may be invoked only where the “ ‘ circumstances of the case unexplained justify the inference of negligence ’ ”, otherwise there is no inference which a defendant is called on to rebut or explain (Galbraith v. Busch, supra, p. 233). Whether the rule of res ipso loquitur is to be applied depends upon ‘ ‘ whether, upon ‘ a common-sense appraisal of the probative value ’ of the circumstantial evidence, measured in part by the test of whether it is the best evidence available, inference of negligence is justified ” (George Foltis, Inc., v. City of New York, 287 N. Y. 108, 115).

Moreover, if the evidence, such as there is, is capable of an interpretation equally consistent with the presence or absence of a wrongful act, that meaning must be ascribed which accords with its absence (Lahr v. Tirrill, supra; Galbraith v. Busch, supra; Digelormo v. Weil, supra; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90). As we said in the. last-cited ease (p. 94): “In order to prove a fact by circumstances there should be positive proof of the facts from which the'inference or conclusion is to be drawn. The circumstances themselves must be shown and not left to rest in conjecture, aiid when shown it must appear that the inference sought is the only one which can fairly and reasonably be drawn from these facts. (People v. Harris, 136 N. Y. 429.) ”

Applying the foregoing tests to this record, giving plaintiff the benefit of every favorable inference which can reasonably be drawn from the evidence, and recognizing that he was not required to negative the existence of remote possibilities that the injury was not caused by defendant or that defendant was not negligent (Betzag v. Gulf Oil Corp., supra, pp. 364-365), we conclude that plaintiff failed to adduce evidence from which it might be reasonably inferred that he suffered an electric shock from any excessive current on defendant’s telephone, or that his injury and present disability are related to his experience of February 16, 1949. He therefore failed to make out a prima facie case as against defendant, and the trial court properly dismissed his complaint.

The order of the Appellate Division should be reversed and the judgment of Trial Term affirmed, with costs in this court and in the Appellate Division.

Desmond, J.

(dissenting). We must, of course, take plaintiff’s testimony as true, for our present purposes.

He took down the receiver of a telephone instrument which defendant owned and operated, and which it was obligated to maintain and keep in safe repair. Immediately he was “ knocked out ”, and later felt various pains and weaknesses. He did not say that a powerful wave of electricity knocked him out, but if he had, that would have been his mere conclusion. He did not say it was an electric shock — how could he? What he said, in various forms of inartistic but clear expression, was that his picking up of the receiver was followed, instantaneously, by his being “ knocked out ”, that is, knocked unconscious. That was, as I see it, a complete basis for application of res ipso loquitur.

Neither his failure to consult a physician, nor the inconclusiveness of the testimony of the physician-expert-witness who testified for him, destroyed the prima facie case, any more than did the dubiousness, if such it was, of plaintiff’s own version of the occurrence. He did testify that he was knocked unconscious, under circumstances which, at the very least, authorized an inference that the cause of the trauma was something wrong with defendant’s telephone instrument or lines. We could not hold, as matter of law, that such a thing was incredible or impossible. That was for defendant to prove, if provable. Apparently such things have happened before (see Hanaman v. New York Tel. Co., 278 App. Div. 875; Delahunt v. United Tel. & Tel. Co., 215 Pa. 241).

The order should be affirmed, with costs, and judgment absolute ordered against defendant, on the stipulation.

Lewis, Conway and Fulo, JJ., concur with Froessel, ,TJ.; Desmond, J., dissents in opinion in which Loughran, Ch. J., and Dye, J., concur.

Order reversed, etc.


author: Conway, J.

text:
    Caroline S. Henderson, Appellant and Respondent, v. Lincoln Rochester Trust Company, Respondent and Appellant.
    Argued May 21, 1951;
    decided July 11, 1951.

      Arthur L. Mepham for plaintiff, appellant and respondent.
    I. Where two causes of action exist, a plaintiff has a choice of remedies. (Rothschild v. Mack, 115 N. Y. 1; Wechsler v. Bowman, 285 N. Y. 284; Harms v. City of New York, 69 Misc. 315; Talbot v. Bank of Rochester, 1 Hill 295; Ganley v. Troy City Nat.

      Bank, 98 N. Y. 487; Gottfried v. Gottfried, 269 App. Div. 413; Wagner v. Armsby, 264 App. Div. 379.) II. The receipt and retention by- a drawee bank of a check presented for payment creates a contractual relation between that bank and the owner of the check. (Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Sweeney v. National City Bank, 263 App. Div. 418, 290 N. Y. 624; Attorney-General v. Continental Life Ins. Co., 71 N. Y. 325; Sokoloff v. National City Bank, 239 N. Y. 158; Murray v. Cunard S. S. Co., 235 N. Y. 162; Matter of Tanenbaum Textile Co. v. Schlanger, 287 N. Y. 400; Matter of Delaney, 256 N. Y. 315; Fidelity & Cas. Co. v. Farmers Nat. Bank, 275 N. Y. 194.) III. The use of a check by a drawee bank to reduce its indebtedness to the drawer without paying the owner of the check therefor creates an indebtedness on the part of the bank to such owner. (Baldwin’s Bank v. Smith, 215 N. Y. 76; Cohen v. City Co. of N. Y., 283 N. Y. 112; Matter of Strand v. Piser, 291 N. Y. 236.) IV. By accepting and retaining the $1,060 check and charging it against the drawer’s account, defendant became indebted to plaintiff, for which indebtedness plaintiff can recover as on contract. (Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Sokoloff v. National City Bank, 239 N. Y. 158; Murray v. Cunard S. S. Co., 235 N. Y. 162.) V. The receipt of a check by a bank for the purpose of collecting the proceeds thereof from the drawee creates a contractual relation between that bank and the owner of the check. (Cohen v. City Co. of N. Y., 283 N. Y. 112; Matter of Strand v. Piser, 291 N. Y. 236.) VI. By receiving the $415 check and collecting the proceeds thereof from the drawee, defendant became indebted to plaintiff for that amount as on contract. (Cohen v. City Co. of N. Y., 283 N. Y. 112; Matter of Strand v. Piser, 291 N. Y. 236.)

      Edward R. Macomber for defendant, respondent and appellant.
    I. As against the drawee, plaintiff has only the action of conversion. (Shipman v. Bank of State of N. Y., 126 N. Y. 318; Sweeney v. National City Bank, 263 App. Div. 418; Kobre v. Corn Exch. Bank, 79 Misc. 212; Stern v. President & Directors of Manhattan Co., 134 Misc. 351, 228 App. Div. 616; Soma v. Handrulis, 277 N. Y. 223; Graves v. American Exch. Bank, 17 N. Y. 205; Spaulding v. First. Nat. Bank, 210 App. Div. 216, 239 N. Y. 586.) II. As against a collecting bank, plaintiff has only the action of conversion. (Salomon v. State Bank, 28 Misc. 324; Spaulding v. First Nat. Bank, 210 App. Div. 216, 239 N. Y. 586.) III. There is no contractual relation between a payee and drawee or collecting bank. (Thomson v. Bank of British North America, 82 N. Y. 1; Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Erb v. Banco di Napoli, 243 N. Y. 45; Wechsler v. Bowman, 285 N. Y. 284.)
   Conway, J.

Plaintiff commenced this action on January 24, 1950. In the complaint she alleged that in 1946, a firm of stockbrokers was indebted to her; that on February 1, 1946, that firm drew its check for $1,060 upon defendant bank as drawee, payable to “ Mrs. Caroline S. Stuber ”, which was then plaintiff’s name, and gave it to one Savitt for delivery; that instead of delivering it, Savitt, on February 2, 1946, presented the check bearing the indorsements Mrs. Caroline S. Steuber ” and “ Savitt Audit Co.” to defendant, which thereupon either paid Savitt $1,060 or credited that amount to his account; that plaintiff has never had an account in defendant bank.

It is then alleged, as a second cause of action, that on September 11, 1946, the same firm drew its check for $415 upon the Security Trust Company, as drawee, payable to “ Mrs. Caroline S. Stuber ” and gave that check to Savitt for delivery to plaintiff ; that, on September 17, 1946, defendant accepted the check bearing the indorsements Caroline Steuber ” and Savitt Audit Co.”; that thereupon defendant paid or credited Savitt Audit Co. or Savitt with the proceeds of the check; that plaintiff never indorsed or authorized anyone to indorse either check and what purported to be her indorsements thereon were forgeries.

Plaintiff then alleged that she first discovered that the checks had been issued and the disposition made of the proceeds in 1949 and immediately demanded that defendant pay her the amount of the two checks which defendant refused to do.

Defendant has moved, pursuant to subdivision 6 of rule 107 of the Rules of Civil Practice, for judgment dismissing both of plaintiff’s alleged causes of action upon the ground that neither ■ of them accrued within the time limited by law for the commencement of an action thereon, namely, three years. Defendant’s motion was based on the premise that plaintiff was entitled to recover against defendant only on a theory of conversion, and that inasmuch as the Statute of Limitations, which is three years for conversion (Civ. Prac. Act, § 49, subd. 7), had run its course on February 2,1949, and September 17, 1949, on the two causes of action respectively, plaintiff’s right to commence an action or actions expired prior to the commencement of the present suit.

Plaintiff, on the other hand, contends that she has a right to recover upon a contractual theory as to both causes of action and that, therefore, the six-year period of limitation (Civ. Prac. Act, § 48, subd. 1) is applicable.

As to the first cause of action, it is clear that plaintiff would have been entitled to recover in an action for conversion commenced before the three-year period of limitations had run. (Spaulding v. First Nat. Bank, 210 App. Div. 216, affd. 239 N. Y. 586; Graves v. American Exch. Bank, 17 N. Y. 205; Burstein v. People’s Trust Co., 143 App. Div. 165.) No action, however, lies in contract by a payee against a drawee bank for paying out the proceeds of a check bearing his forged indorsement. Under our Negotiable Instruments Law, a cause of action in contract lies in favor of the drawer of the check, but not in favor of the payee. The drawee in paying on a check bearing a forged indorsement of the payee breaches its contractual obligation to the drawer to pay only on the latter’s written direction. (Shipman v. Bank of State of New York, 126 N. Y. 318.) The drawee becomes liable in contract to the drawer and the indorsers become liable to the drawee. The privity is apparent. As between the drawee and the payee, however, there is no contractual relation. (First Nat. Bank v. Whitman, 94 U. S. 343; Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82, 87, 90; Stern v. President & Directors of Manhattan Co., 134 Misc. 351, affd. 228 App. Div. 616; 14 A. L. R. 764, 767; 38 Harv. L. Rev. 857, 884.) In jurisdictions which took the view that there was a contractual relation between the payee and the drawee two theories were advanced in support of their position. First, that the drawer in making a check effected an assignment of the fund against which it was drawn to the amount of the check and consequently the payee was entitled to recover against the drawee bank which paid the check on the unauthorized indorsement of the payee’s name. Second, that the payment by the drawee and the charging of the check to the drawer’s account amounted to an acceptance of the check by the drawee bank so as to create a privity between the payee and the drawee. Our Negotiable Instruments Law has disposed of both of those theories. Section 325 provides that a check of itself does not operate as an assignment of any part of the funds against which the check is drawn, and section 220 provides that an acceptance must be in writing and signed by the drawee.

As to the second cause of action on the check for $415 drawn upon the Security Trust Company, as drawee, where the defendant acted as the collecting bank and paid out the proceeds of the check upon the forged indorsement of the payee’s name, a different rule prevails. The motion to dismiss the complaint as to that second cause of action was quite properly denied on the ground that plaintiff could bring an action sounding in contract, thus permitting her to bring suit at any time within six years after payment by defendant. (Moch Co. v. Security Bank of New York, 176 App. Div. 842, affd. 225 N. Y. 723; Comstock v. Hier, 73 N. Y. 269, 275; Johnson v. First Nat. Bank, 6 Hun 124; Talbot v. Bank of Rochester, 1 Hill 295.) The rationale of the rule is well stated in National Union Bank v. Miller Rubber Co., (148 Md. 449), and in Buckley v. Second Nat. Bank of Jersey City (35 N. J. L. 400, 402). In National Union Bank v. Miller Rubber Co. (supra, pp. 455-456), the rule is stated thus: Where, however, a collecting bank cashes a check on a forged endorsement a different principle applies. There the collecting bank on the forged endorsement acquires no title whatever to the paper because the endorsement, its only source of title, is a nullity. It therefore is wrongfully in possession of the check and in equity and good conscience holds it for the payee. If, while in possession of it, it by means of the forged endorsement collects it, then it holds the proceeds of the collection in the same way for the payee, and that relationship creates a privity between it and the payee. And if the payee elects to ratify the collection of the check by the collecting bank he may recover from it the amount collected.”

In 9 Corpus Juris Secundum (Banks and Banking, p. 763), the rule is briefly stated as follows: ‘ ‘ Where a collecting bank cashes a check on a forged indorsement, a different principle applies; there the bank in collecting the check holds the proceeds for the payee, thereby establishing a privity and permitting the payee to maintain an action against such bank for the amount of the check, if he elects to ratify the collection. ’ ’

To put it in other words, a collecting bank is merely an agent for the purpose of collecting from the drawee bank the proceeds of the check delivered to it. When it takes the check for collection, it assents to the agency and becomes bound by the terms of the instrument received. Those terms include an obligation to pay the proceeds collected to the true payee owner in the absence of a valid indorsement. The moment the collecting bank receives the proceeds it holds money belonging to the owner of the check and becomes a debtor of such owner and of no one else in the absence of a valid indorsement.

The order should be affirmed, without costs to either party and the question certified answered in the affirmative.

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel. JJ., concur.

Order affirmed, etc.