author: Desmond, J.

text:
    In the Matter of American Cyanamid and Chemical Corporation et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, Respondent.
    Argued January 19, 1955;
    decided March 3, 1955.

      Sol Charles Levine, S. H. Levine and Joseph M. Codman for appellants.
    I. Within the meaning of the sales tax laws and in the absence of fraud on the part of a vendor in procuring the same, a vendor of tangible personal property who receives from his registered customer a resale certificate, satisfying all of the statutory requirements, may refrain with impunity from collecting the sales tax. II. Since the certificate is made by the purchaser and its representations are peculiarly within his knowledge and, in the event of their falsity, the purchaser is guilty of a misdemeanor and civilly responsible for the tax, the vendor, under the statute, is not required to pass judgment upon the truth or falsity of the factual representations. (Matter of Good Humor Corp. v. McGoldrick, 289 N. Y. 452; Homes Elec. Protective Co. v. City of New York, 304 N. Y. 202; Matter of Emigrant Ind. Sav. Bank v. McGoldrick, 268 App. Div. 277; Matter of American Sur. Co. v. Joseph, 284 App. Div. 14.) ITT. Any doubt should be resolved in favor of the taxpayer and a fortiori of a tax collector. (Dun & Bradstreet v. City of New York, 276 N. Y. 198.) IV. Since respondent has failed to prove that there was any tax due from petitioner’s customers either because the chemicals were resold in either of the statutory senses or because these customers had paid the tax directly to the city, there can be no liability against petitioner. Where there is no tax, there is no tax collector. V. The record is barren of evidence to support the order of the court below. (Matter of Frissell v. McGoldrick, 300 N. Y. 370.) VI. Bespondent’s position with respect to resale certificates, if sustained, changes the nature of the local law from that of a mandatory consumer’s tax to a mandatory vendor’s tax and violates the provisions of the enabling act prohibiting the imposition of two gross receipts taxes upon the same person. (Matter of Tiffany v. Mayor of City of Jamestown, 179 N. Y. 455; Holmes v. County of Erie, 266 App. Div. 220, 291 N. Y. 798; Matter of Merchants Refrig. Co. v. Taylor, 275 N. Y. 113.)

      Leo A. Larkin, Acting Corporation Counsel (Leroy Mandle and Stanley Buchsbaum of counsel), for respondent.
    I. A vendor, who knows that a purchaser from it is not engaged in reselling the articles purchased, is required to collect the sales tax even though the purchaser gives it a resale certificate. (Sterling Bag Co. v. City of New York, 256 App. Div. 645, 281 N. Y. 269.) II. Petitioner’s customers involved herein were not engaged in reselling the articles purchased, and petitioner knew that they were not so engaged. (Matter of Mendoza Fur Dyeing Works v. Taylor, 272 N. Y. 275; Matter of Fifth Ave. Bldg. Corp. v. Joseph, 297 N. Y. 278.) III. The sales tax assessment here imposed does not constitute a second gross receipts tax. Petitioner is obliged to pay because it failed to obey the mandate of the law that it collect the sales tax, and it may still recover the sales tax from its customers. (Matter of Fifth Ave. Bldg. Co. v. Joseph, 297 N. Y. 278; Matter of Kesbec v. McGoldrick, 278 N. Y. 293; Matter of Merchants Refrig. Co. v. Taylor, 275 N. Y. 113.)
   Desmond, J.

New York City’s local retail sales tax statute (Administrative Code of City of New York, ch. 41, tit. N), imposes the tax on the purchaser but requires that it “ be paid by the purchaser to the vendor as trustee for and on account of the city ” and makes the vendor ‘ ‘ liable for the collection thereof and for the tax ” (Administrative Code, § N41-2.0). Since this is a “ consumer’s tax ” and the sales taxed are such only as are not for resale, the law (§ N41-2.0, subd. i) provides for a “ certificate * * * for resale ’ ’ which may be issued by any vendee who is properly registered with the city, to any vendor, as evidence that the goods sold are being purchased for resale. Another part of the statute reads thus: For the purpose of the proper administration of this title and to prevent evasion of the tax hereby imposed, it shall be presumed that all receipts for property and services mentioned in this section are subject to tax until the contrary is established, and the burden of proving that a receipt is not taxable hereunder shall be upon the vendor or the purchaser. Unless the vendor shall have taken from the purchaser a certificate signed by and bearing the name and address of the purchaser and the number of his registration certificate to the effect that the property or service was purchased for resale, the sale shall be deemed to be a taxable sale at retail.” (§ N41-2.0, subd. i.) Acting under statutory authority (§ N41-12.0), the comptroller has promulgated a number of regulations, one of which (art. 24) forbids the taking of resale certificates from purchasers “ not engaged in business for resale ” or not engaged in selling the article purchased ”. Another such regulation (art. 86) is to the effect that sales of chemicals to manufacturers for treating, cleaning or preparing other articles for sale are sales at retail and taxable.

This petitioner sells, in New York City, various acids and chemicals, to numerous customers engaged in a variety of businesses. The proceeding is brought to review sales tax assessments made against petitioner on findings that, over a period of years, it failed to collect the tax on numerous sales transactions. The record sufficiently shows these facts: that in every such instance petitioner had a resale certificate covering the sale, from its vendee, who was registered with the city as authorized to issue certificates; that, however, none of the sales were in fact for resale; that petitioner had reason for suspicion or belief that the sales were taxable hut in no case did petitioner or any of its responsible officers have any actual knowledge of that fact; that petitioner at all times acted in good, not bad, faith in taking the resale certificates and in failing to collect the tax. Petitioner was informed by its own chemist that some of the products it sold were not such as ordinarily became identifiable ingredients or components of other products later to be resold. As to other sales, petitioner was put on notice, by its customers’ corporate names or otherwise, that those customers were in dyeing, cleaning, stamping or coating businesses, etc., and were, presumably, consuming in processes of their own the goods bought from petitioner. The fact remains, however, that petitioner did not know the exact uses, did not know that the resale certificates were inaccurate, and made no further investigation. The question of law is: did petitioner’s possession of such notice or information make it liable for the tax, despite its receipt, in good faith, of resale certificates? Our answer is in the negative.

To this question of statutory interpretation, i.e., legislative intent, there is no direct answer in the statute itself, or, indeed, in the comptroller’s regulations. We assume that there would be no protection for a vendor, who, knowing that there was to be no resale, nevertheless took and acted on such a resale certificate, fraudulently or in bad faith. But this law, which goes very far in burdening the vendor by making him an unpaid tax collector for the city, does not, expressedly or impliedly, put on him a duty of investigating or policing his own customers. The problem, of taxability or no, is sometimes a difficult one as to items which are not resold as such but which may or may not be considered as becoming components of another article which is to be resold (see Matter of Mendoza Fur Dyeing Works v. Taylor, 272 N. Y. 275; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104, 108; Redlieh on Sales Taxes and the Resale Exemption in the Manufacture and/or Distribution of Personal Property, 9 Tax L. Rev., p. 435). We do not think the statute forces a vendor to debate such questions with his customer.

All taxing statutes of doubtful meaning are, we are admonished, to be construed in favor of the taxpayer and against the taxing authority, and the burdens they impose are not to be extended by implication (Dun & Bradstreet v. City of New York, 276 N. Y. 198; Crawford on Construction of Statutes, § 257; 82 C. J. S., Statutes, § 396).

The order of the Appellate Division should be reversed and the determination of the comptroller annulled, with costs in this court and in the Appellate Division.

Conway, Ch. J., Dye, Fuld, Froessel and Van Voorhis, JJ., concur; Burke, J., taking no part.

Order reversed, etc.


source: Caselaw Access Project

author: Conway, Ch. J.

license: Public Domain

text:
    American Locker Company, Inc., Appellant, v. City of New York et al., Respondents.
    Argued January 4, 1955;
    decided March 3, 1955.

      Ralph L. McAfee, George G. Tyler and Albert Rosenblum, for appellant.
    I. Plaintiff’s locker receipts are not subject to the sales tax because the furnishing of safe storage to its patrons is not a “ sale ” of tangible personal property within the meaning of the New York City local laws imposing the sales tax. (Matter of Atlas Television Co., 273 N. Y. 51; Matter of Kesbec v. McGoldrick, 278 N. Y. 293; United States v. Jin Fuey Moy, 241 U. S. 394; Matter of United Artists Corp. v. Taylor, 273 N. Y. 334; Howitt v. Street & Smith Publications, 276 N. Y. 345; Matter of Frissell v. McGoldrick, 300 N. Y. 370; Dun & Bradstreet v. City of New York, 276 N. Y. 198; Matter of Merchants Refrig. Co. v. Taylor, 275 N. Y. 113; Matter of Holmes Elec. Protective Co. v. McGoldrick, 262 App. Div. 514, 288 N. Y. 635; Holmes Elec. Protective Co. v. City of New York, 304 N. Y. 202.) II. Although similar functions are performed by plaintiff’s automatic lockers and by hand-checking rooms, the comptroller has discriminated against plaintiff by holding its receipts taxable while holding the receipts of hand-checking rooms nontaxable. III. Any doubts or ambiguities in the sales tax laws should be resolved in plaintiff’s favor. IV. If under the comptroller’s regulations plaintiff, as collecting agent for the city, must pay tax to the city on so-called “ below-minimum ” sales although it is not empowered by those regulations to collect the tax on those sales from its patrons, the result will be to impose the tax on the vendor, contrary to the Administrative Code, thus depriving plaintiff of property without due process of law, and to tax plaintiff’s gross receipts twice in violation of the enabling act. (Matter of Kesbec v. McGoldrick, 278 N. Y. 293; Cowley v. Fabien, 204 N. Y. 566; Queens Vending Corp. v. City of New York, 246 App. Div. 594; Matter of Good Humor Corp. v. McGoldrick, 264 App. Div. 750, 289 N. Y. 452; Matter of Green Co. v. Joseph, 297 N. Y. 588.)

      Solomon Portnow and Stanley Buchsbaum for respondents.
    I. The transactions come squarely within the sales tax law’s definition of a “ sale ” as a license to use. Moreover, it is also both a transfer of possession and a license to consume within that definition. (Robert v. Board of Supervisors of Kings Co., 3 App. Div. 366, 158 N. Y. 673; People v. Dunn, 157 N. Y. 528; Admiral Realty Co. v. City of New York, 206 N. Y. 110; Matter

      of McAneny v. Board of Estimate & Apportionment of City of N. Y., 232 N. Y. 377; Hermitage Co. v. Goldfogle, 204 App. Div. 710, 236 N. Y. 554; Matter of United Artists Corp. v. Taylor, 273 N. Y. 334; Buckley Funeral Homes v. City of New York, 199 Misc. 195, 277 App. Div. 1096; Matter of Frissell v. McGoldrick, 300 N. Y. 370; Howitt v. Street & Smith Publications, 276 N. Y. 345; Dun & Bradstreet v. City of New York, 276 N. Y. 198.) II. The comptroller’s rate schedule pertaining to “ below minimum ” sales does not violate the State enabling act, nor does plaintiff’s obligation to pay the tax as a vendor result in any “double taxation”. (Queens Vending Corp. v. City of New York, 246 App. Div. 594; Matter of Atlas Television Co., 273 N. Y. 51; Matter of Good Humor Corp. v. McGoldrick, 264 App. Div. 750, 289 N. Y. 452; Matter of Green Co. v. Joseph, 297 N. Y. 588.)
   Conway, Ch. J.

Plaintiff is the owner of coin-controlled lockers in which the public checks baggage and other personal belongings for a period of time not in excess of twenty-four hours upon payment of a “ dime ” or a “ quarter ”, depending upon the size of the locker. The lockers, which are physically and permanently attached to each other and are manufactured so as to comprise one cabinet, viz,, two, three or four lockers, as the case may be, standing one on top of the other, are placed in various locations throughout the city of New York pursuant to plaintiff’s contracts with the owner or lessee of the premises on which the lockers are to be installed. As a patron approaches a given locker location, he selects an unoccupied locker, i.e., a locker which has a key in it. Because the locker is not locked when the patron approaches it, the patron can open the locker door and deposit his belongings therein without making any payment. In order to lock the locker, the patron inserts a “ dime ” or “ quarter ”, as the case may be, closes the door and turns the key, “ thus locking the door from the general public as well as himself ’ ’. The. key, which bears a number corresponding to the number on the locker door, permits the patron to re-enter the locker and retrieve his belongings, if he returns within the twenty-four-hour period covered by his contract with plaintiff. When the patron returns, he puts his key into the lock, opens the door, and retrieves his property. After a patron has locked his locker by turning the key and removing it, he cannot come back and open the locker and then close it again without inserting another coin, even though the twenty-four-hour period has not elapsed. Where a locker is occupied for more than twenty-four hours, plaintiff’s employees remove the contents either to a hand-checking room in the area or to its own office, and the patron may retrieve his belongings by paying overtime charges.

Plaintiff seeks a declaration that the New York City sales tax is inapplicable to the above-described transactions. The complaint also seeks a refund of tax paid to the city on these transactions.

Although plaintiff subdivided its argument into three principal contentions, it is unnecessary to discuss more than one of them. The gist of the argument on that point is that the receipts from plaintiff’s lockers are not receipts from “ sales ” of tangible personal property within the meaning of subdivision a (par. 1) of section N41-2.0 of the Administrative Code of the City of New York, which imposes a tax “ upon the amount of the receipts from every sale of tangible personal property sold at retail ”, and defines a sale as ‘ ‘ Any transfer of title or possession or both, exchange or barter, license to use, license to consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor ” (Administrative Code, § N41-1.0, subd. 5).

The purpose of the sales tax law is not to impose a tax on all transactions, but only on transactions which involve the passage or transfer of title (see Personal Property Law, § 82, for definition of sale), or transactions in which the actual, exclusive possession is transferred (cf. Howitt v. Street & Smith Publications, 276 N. Y. 345, 349). There can be no question here but that title to the lockers does not pass to the patrons.

Neither can there be said to be a transfer of actual physical possession of the lockers to the patrons. The lockers are physically and permanently attached to each other, having been manufactured so as to comprise a cabinet unit. The patron has no right to move any of the lockers. The city recognizes that there is no transfer of actual physical possession but maintains that constructive possession of the locker is delivered to the patron and that that is enough to warrant imposition of the tax. It is true, of course, that the patron may keep his baggage in the locker for a period up to twenty-four hours and that during such period he may exclude all others from use of the locker. However, this is, at best, a limited type of constructive possession. The patron has the right only to lock and unlock the locker once during a period not in excess of twenty-four hours. After the door has been locked the patron may not open the locker without ending his right to its further use. If the transaction were one in which real, exclusive possession had been transferred, it seems to us that the patron would have the right or privilege of opening and closing the door as many times as he wished during the twenty-four-hour period.

The patrons of plaintiff’s lockers bargain for the very same thing that the patrons of hand-checking rooms bargain for, viz., a safe place to store their baggage. In the place of the hand checker who stands guard over the baggage there is a steel door to perform that function. If a patron has not locked the door of his locker or has overstayed the twenty-four-hour period, the contents of his locker are removed and taken to the hand-check room by plaintiff’s employees, where they are returned to the patron when called for. Where it becomes necessary to open a locker for repairs or other reasons, the contents are also removed to the hand-check room.

The comptroller has exempted from the sales tax, transactions whereby one delivers his baggage to a hand checker to be stored. Patrons of the plaintiff’s lockers and of hand-checking rooms bargain for the same thing. In the case of the hand-checking service, an article is generally placed upon a rack and is not moved until called for by the patron, and generally it is not removed from the room in which it is checked. In both cases, the manner of storage is for the purpose of preventing strangers from having access to a checked article and is not for the purpose of excluding therefrom the respective employees of plaintiff or of the hand-checking room. The only real distinction between the two methods of rendering services is the semiautomatic nature of plaintiff’s service, which is ordinarily rendered by means of the patron himself checking his baggage and removing it from storage, rather than by having an employee attend to it as in the case of the hand-checking service. The fact that plaintiff through its method of operation has eliminated the necessity of employees attending to the immediate wants of one who wishes to check his baggage is not any ground of distinction for purposes of taxation.

Moreover, it was well said in Gould v. Gould (245 U. S. 151, 153): “ In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the Government, and in favor of the citizen. United States v. Wigglesworth, 2 Story, 369; American Net & Twine Co. v. Worthington, 141 U. S. 468, 474; Benziger v. United States, 192 U. S. 38, 55 ”. (See, also, Matter of Holmes Elec. Protective Co. v. McGoldrick, 262 App. Div. 514, affd. 288 N. Y. 635; Matter of Brooklyn Union Gas Co. v. McGoldrick, 270 App. Div. 186, 195, affd. 298 N. Y. 536; Matter of Good Humor Corp. v. McGoldrick, 289 N. Y. 452.)

The city maintains that the cases of Matter of United Artists Corp. v. Taylor (273 N. Y. 334) and Buckley Funeral Homes v. City of New York (199 Misc. 195, affd. 277 App. Div. 1096) are dispositive of this case. We do not agree. In the United Artists case (supra) we upheld the imposition of the sales tax upon the transfer by a distributor to an exhibitor of the possession of corporeal property in the form of positive and negative prints of photoplays with a license to use or exhibit them for a specified period. In the Buckley case (supra) the lower courts upheld the imposition of the sales tax upon rentals of automobiles by a funeral director from an auto renting agency for the purpose of transporting the families of deceased persons attending the funerals of such deceased persons. In both of those cases, unlike the present case, actual physical exclusive possession of the tangible personal property was transferred and remained under the apparently unfettered control of the licensee for a specified period of time.

The judgment of the Appellate Division and that of the Special Term should be reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings in accordance with this opinion.

Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur; Burke, J., taking no part.

Judgments reversed, etc.


author: Burke, J.

text:
    In the Matter of the Accounting of Peoples Bank of Johnstown, New York, as Trustee under the Will of David A. Wells, Deceased, Respondent. Joseph D. Oliver, Jr., et al., Appellants; Gertrude K. Hayward et al., Respondents.
    Argued January 12, 1955;
    decided March 3, 1955.

      Lydon F. Maider and Herbert W. Patterson for appellants.
    I. The decision of this court in Oliver v. Wells (254 N. Y. 451) was not determinative of the issues here. (Matter of Horner, 237 N. Y. 489; Matter of Trevor, 239 N. Y. 6; Kalish v. Kalish, 166 N. Y. 368.) II. The court below erred in determining that the relevant documents placed upon appellants Oliver the risk of loss in value of the railway stock. III. Participation by the Oliver children as claimants is not inconsistent with the Surrogate’s holding that the consent of Anna Gertrude Oliver was ineffective. IV. The consents were binding upon Anna Gertrude Oliver and her successors in interest but should not be interpreted as creating a property interest or an assumption of risk. (Atterbury v. Bank of Washington Heights, 241 N. Y. 231; Hoffman v. Aetna Ins. Co., 32 N. Y. 405; Gillet v. Bank of America, 160 N. Y. 549; Moran v. Standard Oil Co., 211 N. Y. 187; Comey v. United Sur. Co., 217 N. Y. 268; Broadway Realty Co. v. Lawyers Tit. Ins. & Trust Co., 226 N. Y. 335; Strauss v. Ernstein, 232 N. Y. 187; Evelyn Bldg. Corp. v. City of New York, 257 N. Y. 501; Wilson Sullivan Co. v. International Paper Makers Realty Corp., 307 N. Y. 20; Friedman v. Handelman, 300 N. Y. 188; Donavin v. Thurston, 190 App. Div. 48.) V. The court below erred in directing the retention of the sum of $8,082.81 by the trustee of the David A. Wells trust during the lifetime of John E. Wells, the life beneficiary.

      Walter J. Hogan for Gertrude K. Hayward and others, respondents.
    I. The Oliver objectors-appellants stand in the shoes of their mother, Anna Gertrude Oliver, and her consent binds them. II. The consent of Anna Gertrude Oliver to extend the time of sale of her interest in the real estate and stock necessarily meant she must take the property as it existed at the time she was eventually entitled to delivery. (Matter of McGrath, 129 Misc. 514; Havens v. Sackett, 15 N. Y. 365; Beetson v. Stoops, 186 N. Y. 456; Oliver v. Wells, 254 N. Y. 451.) III. The consents of Anna Gertrude Oliver and John E. Wells were valid and binding as to such interest each might have. (Beetson v. Stoops, 186 N. Y. 456.) IV. The David A. Wells trust has no liability to the Eleazer Wells trust until the death of the sole trust beneficiary, John E. Wells. V. The right of election given Anna Gertrude Oliver and John E. Wells supersedes the original agreement, and created a new agreement with different rights and obligations between the estate of David A. Wells, Anna Gertrude Oliver and John E. Wells. VI. In no event should respondents bear personally interest on any moneys directed to be paid appellants.

      Alfred D. Dennison for Peoples Bank of Johnstown, respondent.
   Burke, J.

Under the second decretal paragraph of the modified decree inserted in accordance with the opinion of the Appellate Division, the provision of the original surrogate’s decree for the immediate payment of $8,082.81 to John Wells, as trustee under the will of Alida Wells for his life, has been stricken and direction made that said sum be held by the trustee under the will of David Wells to pay over the income to David Wells’ beneficiaries until the death of John Wells, at which time the principal will be payable to the remaindermen-appellants herein. It should be noted that the decree in this respect recognizes that that sum is a charge against the estate of David Wells since the consents were ineffective to bar the remaindermen’s right under the will of Alida Wells. Nevertheless since the consent has been held valid as against the interest of John Wells as income beneficiary under the will of Alida Wells, the Appellate Division has selected the above procedure to provide for the ultimate payment to the remaindermen while providing that the income be paid to David Wells’ beneficiaries during the life of John Wells. But since John Wells is the successor trustee under the will of Alida Wells and since the sum of $8,082.81 is part of the corpus of the trust under the will of Alida Wells, that sum should properly be administered by John Wells, as trustee under the will of Alida Wells, rather than by the State Bank of Albany as successor to the Peoples Bank of Johnstown, New York, trustee under the will of David Wells. The order should therefore be modified so as to provide for the immediate payment of the above sum to John Wells, as trustee under the will of Alida Wells, but with directions to pay over the income during his life to the trustee under the will of David Wells for proper distribution to David Wells’ beneficiaries. Only in this manner will the rights of the remaindermen, whose interest in the sum is superior to that of the beneficiaries under the will of David Wells, be fully protected.

The order of the Appellate Division should be modified in accordance with this opinion and, as so modified, aErmed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate.

Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Ordered accordingly.


author: Desmond- J. Fuld, J.

text:
    In the Matter of the Claim of James R. Knapp, Respondent, against Syracuse University, Appellant. Workmen’s Compensation Board, Respondent.
    Argued December 2, 1954; reargued February 21, 1955;
    decided March 10, 1955.

      J ohn L. Madison for appellant.
    Services performed for Syracuse University, an educational corporation, are excluded from the coverage of the Disability Benefits Law, and the employer, Syracuse University, is exempt from the provisions of that law. (Matter of Rathscheck, 300 N. Y. 346; McCluskey v. Cromwell, 11 N. Y. 593; Matter of Trustees of Columbia Univ. v. Herzog, 269 App. Div. 24, 295 N. Y. 605; Matter of Guardian Life Ins. Co. of America v. Joseph, 272 App. Div. 481; Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; People v. Olah, 300 N. Y. 96; Meltzer v. Koenigsberg, 302 N. Y. 523; Matter of Russomanno v. Leon Decorating Co., 282 App. Div. 18, 306 N. Y. 521.)

      John J. Quinn, Wendell P. Broivn and Roy Wiedersum for Workmen’s Compensation Board, respondent.
    Ample evidence supported the finding of the Workmen’s Compensation Board that claimant was entitled to disability benefits under the Disability Benefits Law (Workmen’s Compensation Law, art. 9), and the award was proper. (Matter of Koehler v. Roosevelt Field, 282 App. Div. 296; Matter of Shapiro v. Central Poultry Corp., 284 App. Div. 309; Matter of Kluczynski v. Hospital Service Corp. of Western N. Y., 282 App. Div. 276; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Matter of Schmidt v. Wolf Contr. Co., 269 App. Div. 201, 295 N. Y. 748; Matter of Moskowitz v. La Guardia, 183 Misc. 33, 268 App. Div. 918, 294 N. Y. 830; Matter of Commissioner of Taxation & Finance v. Nu-Art Adv. Co., 271 N. Y. 112; Matter of Petrie, 215 N. Y. 335; Matter of Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177, 217 N. Y. 627; Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Daus v. Gunderman & Sons, 283 N. Y. 459; Matter of Trustees of Columbia Univ. v. Herzog, 269 App. Div. 24, 295 N. Y. 605.)
   Desmond- J.

In this, as in Matter of Russomanno v. Leon Decorating Co. (306 N. Y. 521), we should take the Disability Benefits Law (Workmen’s Compensation Law, art. 9) as we find it, and leave for legislative attention any seeming inequities, or unevenness of coverage.

Claimant, when he fell ill, was employed as a painter in an office building in downtown Syracuse, N. Y., owned but not occupied by Syracuse University, being leased by the university to various tenants. Disability benefits are, under the statute, available to ‘ ‘ Employees in employment of a covered employer ’ ’ (Workmen’s Compensation Law, § 203), so claimant, to prove eligibility, had to establish each of those requisites. But his insuperable difficulty is that his employment was, by precise language, specifically excluded from the coverage of the law. Subdivision 6 of section 201 says that the following shall not be deemed employment under this article: services performed for * * * any corporation * * * operated exclusively for * * * educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual”. Since Syracuse University is such a corporation, the quoted language has exactly the same meaning, as to this claim, as if the Legislature had said that services performed for Syracuse University shall not be deemed employment under article 9 ”.

It is urged upon us, however, that what the statute really means is that employees of an educational corporation are excluded only where their services are in connection with the institution’s purely educational activities and for an exclusively educational purpose ”. The answer to that is that not only is no such idea anywhere expressed in the statute, but it is demonstrable that the Legislature had no such intent. Originally, by the Workmen’s Compensation Law itself, all employees of educational corporations were made ineligible for benefits, just as is now the case under the Disability Benefits Law. In 1929, however (see L. 1929, ch. 702), the Legislature decided to limit this exclusion (from workmen’s compensation proper) to the strictly educational employees of educational corporations. This the Legislature did by excepting, from the included employments, the employment of “ persons engaged in a clerical, teaching or nonmanual capacity in and for a religious, charitable or educational institution ” (Workmen’s Compensation Law, § 3, subd. 1, group 18). In other words, the Legislature originally withheld workmen’s compensation from all employees of educational corporations, then lifted the bar as to manual employees of such corporations. But, in new article 9, which we are construing here, the Legislature again barred, from disability benefits coverage, any and all employment by an educational corporation, without distinction between educational and noneducational employees, such as was inserted in the older act in 1929. The conclusion is inescapable that in the new Disability Benefits Law no such distinction was either expressed or intended.

Another equally cogent demonstration of actual legislative intent is available. In 1946 (L. 1946, ch. 463), after the decision in Matter of Trustees of Columbia Univ. v. Herzog (295 N. Y. 605), the Legislature decided to give collective bargaining rights to those employees of educational institutions, whose services (like those of the present claimant) had to do with the operations of buildings rented out or otherwise used for profit. To accomplish that, there was added to section 715 of the Labor Law the careful statement that the previous exception of employees of educational corporations was not to apply to such employees when their services were performed in connection with the operation of a building owned by such an association or corporation and used or occupied as a commercial or industrial enterprise operated for the production of profit * * * and which employees are not engaged in the * * * educational * * * activities of such association .or corporation. ’ ’ Thus, we have two instances where the Legislature, intending to distinguish between educational and other employees of educational corporations, said so in words that are unmistakable. But when the Disability Benefits Law was enacted in 1949, it made no such division. How can we make it?

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

Fuld, J.

(dissenting). Claimant worked for Syracuse University as a painter in a building owned by it, off the campus, in the downtown section of Syracuse. The employer is a corporation organized and operated exclusively as an educational institution. The property, known as the University Building, is not used in connection with any of the employer’s educational activities, operated, as it is, solely as a profit-making commercial enterprise. Space in the building, a ten-story structure consisting of stores and offices, is leased to tenants, the net rentals being paid into the University’s treasury. The building is in the care of a full crew of maintenance people — of whom claimant was one — who are paid from the moneys raised solely from its operation.

In February of 1952, claimant suffered an illness which disabled him for some months. The Workmen’s Compensation Board awarded him benefits under the Disability Benefits Law (Workmen’s Compensation Law, art. 9), and the Appellate Division unanimously affirmed that determination. The appeal is here, by our leave, to determine the question whether any and all employment by an educational corporation is excluded from the provisions of the Disability Benefits Law, or only that employment which involves services performed in connection with the conduct of its educational activities.

The Disability Benefits Law was passed in 1949, as an addition to the Workmen’s Compensation Law, to give to “ working men and women * * * the benefits of social insurance against the hazards of sickness and disability not incurred in th.eir employment ” (per Governor Dewey, in approving the bill, L. 1949, ch. 600). The new statute, designed to complement the Workmen’s Compensation Law and the Unemployment Insurance Law, was to afford protection to disabled employees not otherwise covered by existing statutory provisions.

Subdivision 4 of section 201 of the Workmen’s Compensation Law defines an “ employer,” subdivision 5, an “ employee ” and subdivision 6, the term employment.” An “ employer ” means, subdivision 4 declares, “ a person * * * [or] corporation * * * who has persons in employment as defined in subdivision six of this section, but does not include the state, a municipal corporation, local governmental agency, other political subdivisions or public authority.” Subdivision 5 recites that an employee ” is “a person engaged in the service of an employer in any employment defined in subdivision six of this section, except the spouse or a minor child of the employer, and except a minister, priest, rabbi or member of a religious order.” And subdivision 6 of the same section (§ 201) — upon which the employer herein relies — provides that ‘ employment ’ ’ means

‘ ‘ employment in any trade, business or occupation carried on by an employer, except that the following shall not be deemed employment under this article: services performed for the state, a municipal corporation, local governmental agency, other political subdivision or public authority, and for any corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable, scientific, literary or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual ’’.

Subdivision 6, it is plain, was not intended to define employers covered by the statute or list those “ not included” therein. Subdivision 4 had already done that; plainly specifying the employers who are exempted from the statute’s coverage, the legislature carefully refrained from mentioning educational corporations. Ergo, an educational corporation is embraced within the term employer,” but not all employment ” on behalf of such a corporation. By subdivision 6, the legislative design becomes manifest: every employer — except the state, a municipal corporation and the other public bodies specifically excluded in subdivision 4 — comes under the Disability Benefits Law, but an employee working for even an included employer, such as an educational corporation, is not encompassed within the statute or entitled to its benefits if the “ services performed ” by him are in connection with the institution’s purely educational activities and for an exclusively educational purpose.

In other words, it is clear, the legislature reached the conclusion that an included employer could have persons working for him in distinct and separate types of employment.” Thus, although a particular employer is within the statute’s compass, he is, nevertheless, not subject to contributions for employees who perform service as farm laborers; casual employment * * *; service as golf caddies; and service during all or any part of the school year or regular vacation periods as a part time worker ” (subd. 6). And, as already noted, an educational corporation is also included within the term employer and, by that token, is required to pay benefits to all of its employees, except those performing services having to do with its strictly educational activities. In brief, the legislature — with respect to educational corporations (as well as the others specified in subd. 6) —drew a distinction between the terms “ employer ” and “ employment.” Had that body intended it to be otherwise, had it intended in 1949 to exclude an educational corporation from the application of the statute, without regard to the services performed by its employees, it could have simply and precisely provided, as it did some years before in the Labor Relations Act (Labor Law, § 715), that the statute “ shall not apply * * * to employees of charitable, educational or religious * * * corporations”. (See, also, Unemployment Insurance Law [Labor Law, art. 18], § 560, subd. 4.) That language, this court held in Matter of Trustees of Columbia Univ. v. Herzog (295 N. Y. 605, affg. 269 App. Div. 24), excluded a corporation merely upon a showing that it was organized and operated exclusively for educational purposes.

Furthermore, any possible doubt as to the meaning of the section before us should be resolved in the light of the clearly announced legislative purpose and policy, as reflected in related statutes, to distinguish between the types of services rendered for charitable, educational or religious institutions. That, indeed, has been the scheme of the Workmen’s Compensation Law — of which the Disability Benefits Law is a part (art. 9) — ever since 1929. In that year, the legislature amended section 3 of that statute so as to include within its coverage and protection all employees of a charitable, educational or religious institution ‘ ‘ except persons engaged in a clerical, teaching or non-manual capacity ” (L. 1929, ch. 702, amdg. Workmen’s Compensation Law, § 3, subd. 1, group 18). The same sort of distinction was also applied by the legislature very shortly after our decision in the Herzog case (supra, 295 N. Y. 605) and, in order to avoid its effect, when section 715 of the Labor Law was amended by adding an exception declaring that the statute “ shall apply ” to employees of an educational (or a charitable or a religious) "corporation who are “not engaged” in its educational (or charitable or religious) activities (L. 1946, ch. 463).

Certainly, in the absence of explicit language compelling such a result, we may not assume that the legislature intended to depart from its clearly expressed policy in the enactment of section 201 of the Workmen’s Compensation Law, particularly in view of the express embodiment of that policy in section 3 of the same statute. Moreover, the canon is well settled that exemptions from the coverage of a statute of this kind must be strictly construed and will be recognized only where the legislative purpose to grant them indisputably appears. (See Matter of Emil Hubsch Post, V. F. W. [Corsi], 278 App. Div. 460, affd. 303 N. Y. 682; Matter of Smith [Brooklyn Bar Assn.], 266 App. Div. 1038, affd. 292 N. Y. 593; Matter of Batter [Mortgage Comm. Servicing Corp.], 257 App. Div. 546, affd. 282 N. Y. 722.) The legislature’s failure to make use of the identical language employed in either the Labor Law provision or section 3 of the Workmen’s Compensation Law — a fact remarked by Judge Desmond (opinion, p. 276) — is neither significant nor meaningful, especially in view of the different approach and definitional pattern of the statutes. The choice of words to express the thought behind them rests, of course, with the lawmakers, and it is enough that they made their design and meaning clear in section 201 as enacted.

To recapitulate, then, the legislative policy is carried forward, the statute reasonably read and its social purpose effectuated if a differentiation is drawn between employment in the institution’s profit-making enterprises and employment in its purely educational activities.

The.order of the Appellate Division should be aErmed.

Froessel, Van Voorhis and Burke, JJ., concur with Desmond, J.; Fuld, J., dissents in an opinion in which Conway, Ch. J., and Dye, J., concur.

Order reversed, etc.

      . Also excluded from the term “ employment ” are “ employment subject to the federal railroad unemployment insurance act; service performed on or as an officer or member of the crew of a vessel on the navigable waters of the United States or outside the United States; service as farm laborers; casual employment and the first forty-five days of extra employment of employees not regularly, in employment as otherwise defined herein; service as golf caddies; and service during all or any part of the school year or regular vacation periods as a part time worker of any person actually in regular attendance during the day time as a student in an institution of learning.”


author:
Van Voobhis, J.
      Burke, J.

text:
    Beryl Duncan, an Infant, by Louise Harris, Her Guardian ad Litem, Respondent, v. Miles Clarke et al., as Administrators D. B. N. of the Estate of Miles Duncan, Deceased, Appellants.
    Argued January 5, 1955;
    decided March 10, 1955.

      George Foster, Jr., Alan L. Dingle and Alvahteen E. Howard for appellants.
    I. The alleged agreement sued upon, being a “ continuing contractual obligation ” extending for twenty-one years, was not intended to be, and could not be, performed until after the lapse of that period and hence it comes squarely within the proscription of the Personal Property Law (§ 31, subd. 1). (Cohen v. Bartgis Bros. Co., 264 App. Div. 260, 289 N. Y. 846; Sack v. Beasley, 282 App. Div. 153; Smith v. Compania Litografica De La Habana, 127 Misc. 508; Martocci v. Greater New York Brewery, 301 N. Y. 57; McGirr v. Campbell, 71 App. Div. 83; Shapiro v. Balaban, 210 App. Div. 47.) II. Since both the mother and grandmother of respondent were persons interested in the event of the action and likewise were the persons from, through or under Avhom respondent derived her interest, they Avere incompetent as witnesses for respondent against her father’s estate. The admission of their testimony constituted reversible error. (Matter of Browning, 280 N. Y. 584; Croker v. New York Trust Co., 245 N. Y. 17; Rosseau v. Rouss, 180 N. Y. 116; Matter of Block, 258 App. Div. 342; Matter of Cassola, 183 Misc. 66; Matter of Ditson, 177 Misc. 648; Connelly v. O’Connor, 117 N. Y. 91.)

      George P. Halperin, Herbert Kaufman, Daniel Siegel and Leon Dicker for respondent.
    I. The agreement is Avithout the Statute of Frauds. (Burger v. Neumann, 275 App. Div. 710, 300 N. Y. 495; Cohen v. Bartgis Bros. Co., 264 App. Div. 260, 289 N. Y. 846; McKinney v. McCloskey, 8 Daly 368, 76 N. Y. 594.) II. Neither the mother nor the grandmother was under any statutory disability to testify as to the making of the agreement. (Rosseau v. Rouss, 180 N. Y. 116.) III. Assuming arguendo that the doctrine of Rosseau v. Rouss does apply to a situation such as is here presented, it would impinge only upon the testimany of the grandmother. (Todd v. Weber, 95 N. Y. 181; Connelly v. O’Connor, 117 N. Y. 91.) IV. Under the doctrine codified in section 106 of the Civil Practice Act, and the cases which have applied that doctrine to alleged error in applying section 347, the error, if any, does not militate against affirmance. (Matter of Bernsee, 141 N. Y. 389; Hutton v. Smith, 175 N. Y. 375.)
   Van Voobhis, J.

This action is brought by a four-year-old girl through her unwed mother as guardian ad litem against the administrators d. b. n. of the estate of her father, to obtain a judgment presently anticipating in a lump sum the installments which it is alleged in the complaint that he promised to pay during the next sixteen years for the child’s maintenance and education. The testimony of the infant’s mother and grandmother is that the father preferred not to have her adopted out, as the grandmother wanted, but asked that she be brought up by the grandmother in Augusta, Georgia, and promised to pay to the grandmother $60 per month plus other necessary expenses for this purpose. The grandmother’s and the mother’s testimony is that the father said that he would continue to make these payments until the infant plaintiff became twenty-one years old. Objections were overruled that these witnesses were incompetent under section 347 of the Civil Practice Act. The Trial Justice submitted to the jury whether such an agreement was, in fact, made and, if so, the jury were told to approximate what the recovery should be. They were instructed that $11,480 would be the aggregate of $60 a month for sixteen years from the father’s death until plaintiff would be twenty-one. The charge stated: Your verdict is to determine once and for all time what sum the plaintiff ever will receive on account of that promise. So consider all the evidence and weigh the chances of life and death according to the evidence and your experience with life and fix such sum as represents the present value of such sum as is a fair and just approximation of the total sum payable under the terms of Mr. Duncan’s promise, and return a verdict for the plaintiff for that sum, if you have first found that the promise was in fact made. ’ ’ The jury rendered a verdict for $18,000.

Although the ultimate effect of such an agreement would be to lift from the mother the financial burden of the child’s support, her testimony has been held to be admissible in Connelly v. O’Connor (117 N. Y. 91) for the reason that the interest ” which renders a witness incompetent under section 347 is only such as results from the “ direct legal operation of the judgment ” (Hobart v. Hobart, 62 N. Y. 80, 81, 83). The opinion in Connelly v. O’Connor (supra, p. 94) states: “ We think the interest of the witness in the event of the action was, if any, ‘ remote, contingent and uncertain,’ and was an interest in the question as distinguished from an interest in the event.” That was spoken concerning the testimony of a witness similarly situated to the mother in this case. For this reason, although it should be explained to the jury that they may consider the effect of the outcome of the action upon the mother in relation to her credibility, we consider that her testimony was correctly admitted.

The grandmother was an incompetent witness inasmuch as the testimony is that she was the person with whom the decedent is claimed to have contracted and through whom the infant plaintiff derives her interest. It has been held that this result is not changed by the circumstance that the action is brought by the infant whose sole interest is derived from and through the promisee (Rosseau v. Rouss, 180 N. Y. 116). To this extent, the holding in Rosseau v. Rouss has been supported in Matter of Browning (280 N. Y. 584) and Croker v. New York Trust Co. (245 N. Y. 17). In Matter of Browning (supra), we held that the Surrogate properly excluded testimony of this nature concerning alleged agreements to support an infant, holding, in effect, that Rosseau v. Rouss (180 N. Y. 116, supra) was not implicitly overruled by Ward v. New York Life Ins. Co. (225 N. Y. 314), the latter case having been decided on the peculiar facts there presented. The grandmother is the person “ from, through or under whom ’ ’ the infant plaintiff" derives his interest or title by assignment or otherwise ”, as stated in section 347. Due to the admission of the grandmother’s testimony concerning the making of this agreement, a new trial must be granted.

Inasmuch as no question has been raised concerning the measure of damage and the manner of payment thereof, we do not pass upon it at tMs time (cf. Kelly v. Security Mut. Life Ins. Co., 186 N. Y. 16; Indian Riv. Islands Corp. v. Manufacturers Trust Co., 253 App. Div. 549; Sulyok v. Penzintezeti Kospont Budapest, 279 App. Div. 528, 536, mod. upon another point, 304 N. Y. 704).

Defendants-appellants have pleaded that this alleged oral agreement is void under that portion of subdivision 1 of section 31 of the Personal Property Law which invalidates contracts that are not to be performed within one year. A promise to support a child during minority is not voided upon the ground that it is incapable of performance within a year, inasmuch as the object is support of the child as long as this is required during infancy. If the child were to die, the agreement would be fully performed^ since the purpose is to furnish necessaries to the child, not to purchase services or to accomplish some other objective throughout a term of years. As is said in Corbin on Contracts (Yol. 2, § 446, pp. 548-549): “The death of the child would attain the object of the contract in so far as it is possible of attainment.” Consequently it has been held that the possibility of death of the infant within a year takes such a promise outside of the portion of the Statute of Frauds voiding contracts not to be performed within a year (Kent v. Kent, 62 N. Y. 560, 564; McKinney v. McCloskey, 8 Daly 368, affd. 76 N. Y. 594; Burger v. Neumann, 300 N. Y. 495; see Blake v. Voigt, 134 N. Y. 69).

This distinguishes a contract to maintain a child until he becomes of age from a contract of employment for a term of years, where the object is not to supply the wants of a minor while they exist but to obtain the services of the employee for a term of years. The latter type of contract and related agreements are held to fall within the Statute of Frauds (Cohen v. Bartgis Bros. Co., 264 App. Div. 260, affd. 289 N. Y. 846; Martocci v. Greater New York Brewery, 301 N. Y. 57; Wahl v. Barnum, 116 N. Y. 87, 97; Sack v. Beasley, 282 App. Div. 153; Shapiro v. Balaban, 210 App. Div. 47; McGirr v. Campbell, 71 App. Div. 83; 2 Williston on Contracts [rev. ed.], § 496).

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

Burke, J.

(dissenting). The appellants rely on Rosseau v. Rouss (180 N. Y. 116) to support their objections to the admission of the testimony of the grandmother of Beryl Duncan, the infant plaintiff-respondent herein. This court in the prevailing opinion in Rosseau v. Rouss (supra) clearly excluded the circumstances in this case from the ruling laid down therein, when it stated: ‘ There is a distinction between a contract by a putative father to pay a.third person for the mere support of his natural child, which was the case in Todd v. Weber (95 N. Y. 181), and an agreement with the mother to settle a fortune upon her child which requires something more than a moral obligation to sustain it.” (Pp. 122-123.)

The facts in Todd v. Weber (95 N. Y. 181) are similar to the facts herein: the child remained at her grandmother’s for nine or ten years and the grandmother provided the child with board, care and clothing, paid all expenses and sent her to school, paying the bills. The testimony there was to the same effect as the testimony in this case. The testator told both the mother and grandmother ‘ ‘ ‘ that he wished ’ them ‘ to take good care of the child and bring her up right, and he would see that it was all right ’ ”. In Todd v. Weber (supra) the grandmother and the mother, as well as the plaintiff and other relatives, testified. This court has held in certain cases that a person from, through or under whom the plaintiff derived an interest was competent as a witness and that when a third person sues on a contract made for his benefit, he does not derive his interest from the party who furnished the consideration for the contract within the meaning of former section 829 of the Code of Civil Procedure (Civ. Prac. Act, now § 347) (Healy v. Healy, 55 App. Div. 315, affd. 166 N. Y. 624; Bouton v. Welch, 170 N. Y. 554).

A different doctrine was upheld in Rosseau v. Rouss (supra) but the prevailing opinion distinguished the earlier cases, and did not overrule them. Subsequently this court followed the earlier cases in Ward v. New York Life Ins. Co. (225 N. Y. 314, 319) in refusing to exclude the evidence of the wife as to personal transactions between herself and her deceased husband for the purpose of establishing an assignment to her of an insurance policy.

The facts in the instant case are within the rule laid down in the earlier cases above cited and are specifically excluded by the Rosseau v. Rouss (supra) decision from its application.

In Croker v. New York Trust Co. (245 N. Y. 17, 24), this court reaffirmed the doctrine of Rosseau v. Rouss (supra) as a general rule indicating there may be exceptions. Matter of Browning (280 N. Y. 584) illustrates the wisdom of the court in making a distinction in Rosseau v. Rouss (supra) between a contract for the mere support of a natural child and an agreement to settle a fortune upon a child. In the Browning case (supra) the appellant sought a share in the intestate estate or damages in the sum of $1,000,000. The persons who furnished the consideration in the Browning case (supra) were either under a legal obligation to support the plaintiff or were interested as possible beneficiaries through inheritance from the plaintiff. This was likewise true in the Rosseau v. Rouss case (supra) but this is not so in this case, the grandmother not being liable for the support of the child. Indeed the mother, although legally liable for the support of the child, can testify. (Connelly v. O’Connor, 117 N. Y. 91.)

The Browning, Rosseau and Croker cases (supra) were alike in that the claims were not for mere support of a natural child, but involved the transfer of large sums of money, $100,000 to $1,000,000 from the estates of the decedents to the beneficiaries of the agreements and the persons who supplied the consideration were distributees of the beneficiaries of the agreement.

The present agreement is a contract by the putative father to pay a third person for the mere support of his natural child, the exact type of agreement approved by this court in Todd v. Weber (supra) cited and recognized as continuing authority in Rosseau v. Rouss (supra) and her testimony is admissible as an exception to the general rule cited in Croker v. New York Trust Co. (supra). Even though the grandmother supplied the consideration for the support agreement she is not presently legally liable for the support of the plaintiff. Her chances of inheriting any part of the fund from the plaintiff are, under the most favorable circumstances, remote. Therefore the plaintiff herein did not derive her interest from the party who furnished the consideration (the grandmother) within the meaning of section 347 of the Civil Practice Act.

Apart from the testimony of the grandmother, there is sufficient evidence in the record to establish the agreement and support the verdict of the jury. The testimony of the mother which has been held to be admissible is buttressed by the sober, responsible testimony of a doctor Hogans who was a companion of the decedent. The evidence given by the mother and the doctor as to the terms of the agreement was confirmed by the conduct of the decedent in making the payments for about four years prior to his death. Even if the testimony of the grandmother be deemed technically incompetent, the error, if any, was not so prejudicial to the appellants as to call for a reversal of the judgment. (Hutton v. Smith, 175 N. Y. 375; Fulton v. Canno, 200 App. Div. 253.) A new trial will serve no useful purpose but only contribute to the law’s delay. There is ample competent evidence to sustain the findings made, and therefore, under section 106 of the Civil Practice Act, the error must be disregarded.

Accordingly, we dissent and vote to affirm.

Conway, Ch. J., Desmond, Fuld and Froessel, JJ., concur with Van Voorhis, J.; Burice, J., dissents in an opinion in which Dye, J., concurs.

Judgments reversed, etc.


author: Bxtrke, J.

text:
    The People of the State of New York, Respondent, v. Manley Blakeslee, Appellant.
    Argued January 14, 1955;
    decided March 10, 1955.

      Floyd J. Reinhart for appellant.
    I. The evidence to convict defendant of the crime of book-making in violation of section 986 of the Penal Law was insufficient. (People v. McDonald, 177 App. Div. 806; People ex rel. Collins v. McLaughlin, 128 App. Div. 599; People v. Lambrix, 204 N. Y. 261.) II. The District Attorney committed a reversible error by an improper question to the complaining witness. (People v. Marshall, 306 N. Y. 223; People v. Carborano, 301 N. Y. 39; People v. Robinson, 273 N. Y. 438; People v. Posner, 273 N. Y. 184; People v. Tassiello, 300 N. Y. 425.) III. The court erred in its charge to the jury. IV. The sentence was excessive.

      Allen E. Pulsifer, District Attorney, for respondent.
    I. Amendment of the information as to time is authorized by sections 293 and 62 of the Code of Criminal Procedure. (People v. Easton, 307 N. Y. 336.) II. The evidence was amply sufficient to sustain the conviction of book-making under section 986 in its present form. (People v. Carpenito, 292 N. Y. 498; People v. Cohen, 307 N. Y. 712; People v. Laude, 81 Misc. 256; People v. McDonald, 177 App. Div. 806; People ex rel. Collins v. McLaughlin, 128 App. Div. 599; People v. Lambrix, 204 N. Y. 261; People v. Goldstein, 295 N. Y. 61; People v. Sloane, 230 N. Y. 529.) III. An isolated, unanswered question cannot constitute reversible error. (People v. Tassiello, 300 N. Y. 425; People v. Carborano, 301 N. Y. 39; People v. Robinson, 273 N. Y. 438; People v. Posner, 273 N. Y. 184; People v. Marshall, 306 N. Y. 223.) IV. The court’s charge was proper and correct. (People v. Shannon, 87 App. Div. 32.) V. The sentence was not excessive, particularly in view of defendant’s conviction of the same crime in the same court less than two years previously. (People v. Gross, 304 N. Y. 789; People v. Erickson, 302 N. Y. 461; People v. Bianco, 281 App. Div. 690.) VI. The appeal from the Recorder’s Court of the City of Johnstown, a Court of Special Sessions, to Pulton County Court was properly transferred by an order of the County Court to the Supreme Court, Pulton County, where the appeal was argued and determined, the County Judge having disqualified himself to hear the appeal. (Matter of Steinway, 159 N. Y. 250; De Hart v. Hatch, 3 Hun 375; People ex rel. Swift v. Luce, 204 N. Y. 478; Matter of Malloy, 278 N. Y. 429; Barone v. Aetna Life Ins. Co., 260 N. Y. 410; People v. Ruttles, 172 Misc. 306; Matter of Schneider v. Aulisi, 307 N. Y. 376; Pietraroia v. New Jersey & H. R. Ry. & Ferry Co., 197 N. Y. 434; People v. Trezza, 128 N. Y. 529; People v. Gersewitz, 294 N. Y. 163; People v. Wurzler, 300 N. Y. 344.)
   Bxtrke, J.

Appellant was convicted of the crime of bookmaking (Penal Law, § 986) upon a Jury’s verdict of guilty in the Recorder’s Court of the City of Johnstown sitting as a Court of Special Sessions (Code Crim. Pro., § 63). An appeal was taken to the County Court of Pulton County pursuant to section 520 of the Code of Criminal Procedure (now § 517, as amd. by L. 1954, ch. 806). The County Judge disqualified himself because of prior civil litigation between himself and the defendant, and transferred the appeal to the Supreme Court, Fulton County, pursuant to section 44 of the Code of Criminal Procedure. The Supreme Court affirmed the conviction and an appeal to this court was allowed by the Chief Judge of the Court of Appeals. (Code Crim. Pro., § 520.)

Among other assignments of error, appellant contended that the evidence, consisting of some forty-four telephone conversations intercepted and transcribed pursuant to a wire-tap order granted by a justice of the Supreme Court, was insufficient to sustain the verdict. The nature and contents of the conversations, properly identified by competent witnesses, were sufficient to sustain a verdict of guilty beyond a reasonable doubt.

In the Court of Appeals, appellant contended that the affirmance of the conviction by the Supreme Court was void since only an appeal to the County Court is authorized by statute. (Code Crim. Pro., § 520, now § 517). This contention is without merit since section 44 of the Code of Criminal Procedure authorizes the County Court to transfer “ any criminal action or proceeding ” to the Supreme Court if the County Judge is for any reason incapable of acting in the cause. The phrase “ having-jurisdiction of such an action or proceeding ” does not limit the application of the section insofar as the Supreme Court is concerned since the latter court is invested with State-wide jurisdiction. The phrase was originally a territorial limitation on the old city courts and was retained in the section by oversight when the phrase “ or to a city court ” was deleted from the section by chapter 255 of the Laws of 1941.

People v. Wurzler (300 N. Y. 344) is not applicable. There the County Court, in which the appellant had been convicted, transferred a coram nobis proceeding to the Supreme Court because of the disqualification of the County Judge. This court, in reversing and remanding the matter to the County Court, held that “ it is only the court where a defendant is tried and convicted that possesses the power to hear and decide a motion in the nature of a writ of error coram nobis.” No such limitation exists as to appeals since the Legislature, subject to constitutional limitations, has broad power to confer appellate jurisdiction.

The judgment should be affirmed.

Conway, Ch. J., Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ., concur.

Judgment affirmed.


author: Fkoessel, J.

text:
    Neil Stein, an Infant, by His Guardian ad Litem, Samuel Stein et al., Appellants, v. Joseph Palisi et al., Individually and as Copartners Doing Business as Palisi Taxi et al., Respondents.
    Argued January 11, 1955;
    decided March 10, 1955.

      George A. Burrell and Arthur N. Seiff for appellants.
    I. The evidence fully warrants the jury’s finding that defendants’ taxicab struck the infant plaintiff. (Garippa v. Wisotsky, 280 App. Div. 807, 305 N. Y. 571; Noseworthy v. City of New York, 298 N. Y. 76; Fagan v. Atlantic Coast Line R. R. Co., 220 N. Y. 301; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Garrow v. State of New York, 268 App. Div. 534; Dillon v. Rockaway Beach Hosp. & Dispensary, 284 N. Y. 176; Gutierrez v. Public Service Interstate Transp. Co., 168 F. 2d 678; Warner v. New York, Ontario & Western Ry. Co., 209 App. Div. 211.) II. The evidence fully warranted the jury’s finding of negligence on the part of defendants. (Day v. Johnson, 265 App. Div. 383; Hammer v. Bloomingdale Bros., 215 App. Div. 308; Touris v. Fairmont Creamery Co., 228 App. Div. 569; Lo Vaglio v. Kahn, 253 App. Div. 824; Schwartz v. Petfield, 283 App. Div. 845; Allen v. Stokes, 260 App. Div. 600; Scantlebury v. Lehman, 305 N. Y. 713; Klein v. Long Is. R. R. Co., 303 N. Y. 807; Trimble v. City of New York, 275 App. Div. 169.)

      Sidney Advocate and E. Edan Spencer for respondents.
    I. The finding of the jury was contrary to the weight of the evidence. (Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; People v. Kennedy, 32 N. Y. 141; Lopez v. Campbell, 163 N. Y. 340; White v. Lehigh Valley R. R. Co., 220 N. Y. 131; Wank v. Ambrosino, 307 N. Y. 321; Scharff v. Jackson, 216 N. Y. 598; Digelormo v. Weil, 260 N. Y. 192.) II. The denial of the trial court to grant defendants’ motions to dismiss the complaint and direct a verdict in their behalf was error. (Matter of Case, 214 N. Y. 199; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66.)
   Fkoessel, J.

The Appellate Division has reversed, on the law and the facts, a judgment of Trial Term based on a unanimous jury verdict in favor of plaintiffs, and dismissed plaintiffs’ complaint. Thus the question before us is whether plaintiffs have made out a prima facie case. In determining that question we must, of course, consider the evidence in the light most favorable to plaintiffs, and afford to them the benefit of every favorable inference which can reasonably be drawn therefrom (Sagorsky v. Malyon, 307 N. Y. 584, 586).

In June of 1948, plaintiff Samuel Stein, Ms wife, and their two cMldren were vacationing in one of a group of small bungalows known as the Dritsas Farm Colony near Beacon, New York. These bungalows were situated in a row along the left-hand side of a private, dead-end access road. Said private road, where it began, joined a public dirt road, which in turn led to New York State Route 9-D, some three-tenths of a mile away. The bungalows were “ completely separated from the highway and the main road ”. The private access road was fifteen feet wide, and was made of rough cinders and stones. Between it and the bungalows were lawns of grass and weeds. Four bungalows were grouped toward the dead end of the private road. The first of these was occupied by the Steins.

On June 21, 1948, at about 6:15 p.m., the Steins’ nineteen-month-old baby was playing with his three-year-old sister, his six-year-old cousin and two other children on the lawn in front of the second bungalow. Defendants’ Chevrolet taxi came down the private road “ pretty fast ” raising dirt “ in the air ”, according to a neighbor, and passed the spot where the children were playing. Kaufman, driver of the taxi, admitted that when he drove in, he had seen and passed some children around the first bungalow. Kaufman then, according to plaintiff’s mother, made a left turn off the cinder road onto the lawn, drove up “ quite a ways ” toward the third or fourth bungalow, and stopped, with Ms cab facing the bungalow.

Immediately after the taxi had begun to drive away, the baby’s sister and cousin, who had meanwhile come to the Stein bungalow to inquire about dinner, and who had been promptly sent back by Mrs. Stein to look after the baby, began screaming. Mrs. Dritsas, who was at the time about fifty feet from the Stein bungalow, heard the screaming and then saw defendant’s taxi departing along the private road. She testified it was going ' ' very fast ’ ’, and had not yet made the turn onto the dirt road. Alarmed by the screaming, Mrs. Stein ran outside and found her baby lying unconscious, half on the grass and half on the road, face down.

When Mrs. Stein first reached the baby, his head was “ completely bloody ”, and his clothes were bloody, torn, dirty and black, with “gravel, oil, stains” and “grease” (emphasis supplied). Summarized, the baby’s injuries were a fractured skull, shock, abrasions and lacerations. There was a triangular laceration of the forehead and frontal areas which penetrated all layers of the scalp and bared the bone of the skull. Dirt had been ground into it. There were other lacerations on the chest, face and legs. Dirt and cinders had also been ground into them. These lacerations were abrasive ” and had a “ brush characteristic ” which indicated to the attending physician that Either the skin was moving across some surface or some surface moved across the skin in such wise that this material was ground into these lacerations and abrasions.”

The permanent scars left by those lacerations are linear bluish marks, diagnosed by the dermatologist as accidentally induced tattoo marks of a permanent nature caused by the introduction of some matter such as coal dust, cinders or stones into the skin; he added that these scars could not have been caused by a fall or a blow, but were undoubtedly ” due to an abrasive trauma.

In leaving the area, the taxi concededly passed the point where the baby was found bleeding and unconscious. Moreover, there is no evidence of any other person, motor vehicle, or object in the vicinity which during that brief unguarded interval was capable of inflicting upon the baby injuries of the severity and character of those just described. The medical testimony as to those injuries left little doubt as to how they had come about. From all these circumstances a jury could properly find that defendants’ taxi had contacted the baby, and either dragged or pushed him through the dirt and cinders.

The only question remaining, therefore, is whether there was sufficient evidence from which the jury could reasonably have inferred negligence. The Appellate Division held that there was no evidence on which to base an inference of negligence, and it dismissed the complaint. We may affirm that dismissal only if we conclude that “ by no rational process ” could the jury have based a finding in favor of plaintiffs on the evidence here presented (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 245-246).

The injured plaintiff here, as noted, was a baby nineteen months old. He could walk and was very active. But obviously, at his age, he was totally unable to watch out for his own safety. Indeed, as a matter of law, he could not be guilty of contributory negligence (Prendegast v. New York Central & H. R. R. R. Co., 58 N. Y. 652, 653; Verni v. Johnson, 295 N. Y. 436, 437-438; Ihl v. Forty-Second St. & Grand St. Ferry R. R. Co., 47 N. Y. 317, 323; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, 458-461; McGarry v. Loomis, 63 N. Y. 104, 106). Moreover, since the infant plaintiff was of course unable to testify, the jury had to rely upon circumstantial evidence. This it could properly do (Garippa v. Wisotsky, 305 N. Y. 571; see, also, Noseworthy v. City of New York, 298 N. Y. 76).

When Kaufman entered the bungalow area, he drove ‘' pretty fast ” on the private fifteen-foot road, and admittedly saw the young children playing on the lawn, which by Kaufman’s own testimony was only fifteen to twenty feet wide. Shortly thereafter he left by the same road, going very fast There is no direct evidence available to plaintiff as to exactly what happened in the brief interval between the time Kaufman stopped to discharge his passengers and when he was seen driving out “ very fast ”, except Kaufman’s testimony that he turned his Chevrolet cab around. The jury • could have inferred that this could not readily be done on a road fifteen feet wide without driving onto the lawn. It was also proper for the jury to determine that as a reasonably prudent person, he should have driven with greater caution than would have been required had no one, or only adults, been in the vicinity (see Hammer v. Bloomingdale Bros., 215 App. Div. 308; Day v. Johnson, 265 App. Div. 383, 387; Schwartz v. Petfield, 283 App. Div. 845);

On the issue of defendant’s negligence, it makes no difference whether the jury chose to believe Mrs. Stein’s testimony that the taxi stopped on the lawn when its passengers alighted, or whether it accepted Kaufman’s statement that he stopped on the road. If, as he drove out, the baby was in or close to the road, on the edge of which his mother found him, lying face down, Kaufman obviously was under a duty to watch out for him, to avoid hitting him, and not to travel ‘ ‘ fast ’ ’ — particularly so since he knew that young children were nearby. Even greater was his duty of careful observation and operation of his taxi, if he in fact drove off the road and onto the lawn, as the jury was entitled to find. In either event, and no matter where the actual impact occurred, a jury could find under all the circumstances that when Kaufman failed to see the baby, he did not exercise caution commensurate with the danger presented, and was therefore negligent. In other words, from the facts and circumstances in this case, the jury had the right to infer that the only way the child could have received its injuries was through contact with the taxicab, and from those same facts and circumstances it had the right to infer that defendant was negligent.

The evidence giving rise to an inference of negligence here is fully as strong as, if not stronger than, that presented to us in the cases of Scantlebury v. Lehman (280 App. Div. 978, affd. 305 N. Y. 713) and Klein v. Long Is. R. R. Co. (278 App. Div. 980, affd. 303 N. Y. 807), in both of which we approved inferences of negligence and causation. In each of those two cases, as well as in this one, the evidence sufficiently established contact between a vehicle [or train] and a pedestrian, and the injured person was found lying near the path which the vehicle [or train] was known to have taken. There was no direct evidence in any of the cases as to how the accident actually happened, for each of the defendant’s operators testified he had not seen the victim immediately prior to the accident.

The instant case, if anything, is stronger than the Scantlebury case (supra), because, unlike the bus on busy 125th Street in New York City, defendants’ taxi was the only vehicle on this private dead-end road when the accident happened, and because here it happened in daylight and there at night. This case is stronger than either the Scantlebury or Klein case (supra) because the injured plaintiff here was not an adult, but a mere baby, incapable of contributory negligence.

Finally, the recent case of Wank v. Ambrosino (307 N. Y. 321), cited by defendant, is not controlling here. There, defendant felt a bump while he was traveling at slow speed on a public street in New York City when night had fallen. He then stopped, looked at his tires, and, discovering nothing, started again. Hearing more noise, he stopped again and found plaintiff’s intestate, an adult whom he had not seen before, under his car. Upon that record the majority of our court held that an inference of negligent causation could not be permitted.. The circumstances of the instant case, as already noted, are entirely different.

Defendant devotes much space to a discussion of the weight of the evidence. However, the question before us concerns not the weight, but the sufficiency of the evidence to establish a prima facie case. Upon all the evidence presented, we are of the opinion that plaintiff did make out a prima facie case within the principles established by our decisions.

The judgments should be reversed, and a new trial granted, with costs to abide the event.

Conway, Ch. J., Desmond, Dye, Fuld, Van Voorhis and Burke, JJ., concur.

Judgments reversed, etc.


author: Froessel, J.

text:
    In the Matter of the Construction of the Will of Asher B. Hallock, Deceased. Fred A. Giloth, as Executor of Florence Y. Giloth, Deceased, Respondent; Frank D. Hallock, Appellant.
    Argued January 20, 1955;
    decided March 10, 1955.

      Pierre G. Lundberg, Syrena H. Stackpole and Reginald C. Smith for appellant.

      David H. Gilmartin and James R. Caruso for respondent.
   Froessel, J.

The sole residuary legatee under the last will and testament of Asher B. Hallock, deceased, appeals from an order of the Appellate Division, Second Department, unanimously reversing, on the law, a decree of the Surrogate’s Court of Suffolk County in a will construction proceeding. The Appellate Division, disagreeing with the Surrogate, construed the will as providing that the sum of $1,000, which decedent directed his executors and trustees to pay to his niece following the death of his wife, indefeasibly vested in the niece upon testator’s death. It remitted the proceeding “ to the Surrogate’s Court for the determination of allowances, costs and interest, and entry of decree ” (emphasis supplied).

Were the Appellate Division order final within the meaning of the Constitution, its order would be the appealable paper, notwithstanding the fact that it remitted the case to the Surrogate’s Court for entry of a decree (Civ. Prac. Act, § 591, subd. 2, as amd. by L. 1953, ch. 417). The rule was otherwise prior to said 1953 amendment (Matter of Mittelstaedt, 304 N. Y. 795; Matter of Bishop, 301 N. Y. 498).

In this case, however, further judicial action is contemplated by reason of the remission for the “ determination ” of “ interest ”. Remission for the determination of the costs and allowances would not affect finality, since the Surrogate in his decree expressly reserved these matters ‘ ‘ for supplemental decree ’ ’, in accordance with the authority granted by section 278 of the Surrogate’s Court Act. Remission for the purpose of determining interest, however, renders the Appellate Division order nonfinal.

The fixation of interest on the legacy is governed by the second paragraph of section 218 of the Surrogate’s Court Act. There it is provided, so far as pertinent here, that interest on a legacy shall be “ at the rate of three per centum per annum unless the delay in payment was unreasonable, in which event interest shall be at the legal rate for the period of such unreasonable delay ’ ’. This is clearly a discretionary matter with the Surrogate which he has not yet passed upon. Appellant, in his answer to the petition, stated that if “ it should be determined that the Estate of Florence Young Giloth is entitled to the sum of One Thousand ($1,000.) Dollars, interest be limited from April 28, 1953, the date on which letters testamentary therein were issued ’ ’. In the Appellate Division, appellant devoted his entire Point V to this question of interest, as did respondent Point III of his brief. Yet the Appellate Division made no determination of this question but remitted it to the Surrogate’s Court for “ determination ”. Respondent in his brief before us claims that interest should be fixed at 3% for the first sixty days following the life tenant’s death and at 6% thereafter. We of course have no power to determine this matter of interest, and until it is fixed by the Surrogate’s Court, for which purpose the Appellate Division remitted it, there is clearly absence of finality in the order appealed from (Cohen and Karger, Powers of the New York Court of Appeals, § 11, particularly at pp. 45-46). In view of section 278 of the Surrogate’s Court Act and the Surrogate’s decision herein, the matter of allowances and costs was definitely severed. We may not imply a severance as to interest, which is equivalent to damages for failure to pay the legacy when due.

Accordingly, the appeal should be dismissed upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution, with costs to respondent-petitioner payable out of the estate.

Conway, Ch. J., Desmond, Dye, Fttld, Van Voorhis and Burke, JJ., concur.

Appeal dismissed, etc.


text:
    The People of the State of New York, Appellant, v. Robert Lee, Respondent. The People of the State of New York, Respondent, v. Donald Sarra, Appellant. The People of the State of New York, Respondent, v. Daniel McCarthy, Appellant.
    Argued January 17, 1955;
    decided March 10, 1955.

      Asher Marcus and Francis E. Dorn for Donald Sarra and Daniel McCarthy, appellants, and Robert Lee, respondent.
    I. The People’s evidence is insufficient, as a matter of law, to establish the guilt of appellants beyond a reasonable doubt. (People v. Ledwon, 153 N. Y. 10; People v. Wrieden, 299 N. Y. 425; People v. Gluck, 188 N. Y. 167; People ex rel. Hussey v. Woods, 169 App. Div. 146; People ex rel. Kelly v. Waldo, 161 App. Div. 731; Matter of Reger v. Mulrooney, 241 App. Div. 38; People v. Campanaro, 223 App. Div. 248, 249 N. Y. 545; People v. Eng Hing, 212 N. Y. 373; Atlantic Works v. Brady, 107 U. S. 192; Hoeltke v. Kemp Mfg. Co., 80 F. 2d 912.) II. The evidence is insufficient, as a matter of laAY, to support a conviction of assault within the meaning of subdivision 3 of section 242 of the Penal Law. (People v. Katz, 290 N. Y. 361; People v. Finn, 275 App. Div. 65; People v. Plath, 100 N. Y. 590; People v. Osinski, 281 N. Y. 129.) III. A conviction for robbery in the first degree within the meaning of subdivision 2 of section 2124 of the Penal Law is an impossibility. (Baron v. People, 1 Parker Cr. Rep. 246; People v. Munroe, 190 N. Y. 435.) IV. Appellants arc entitled to their immediate discharge instead of being required to stand trial again. (People v. Gluck, 188 N. Y. 167; People v. Wrieden, 299 N. Y. 425.) V. The cases relied upon by the People to support their contention that Lee was sufficiently identified to warrant a new trial as to him do not support the People’s position. (People v. Cassidy, 160 App. Div. 651; People v. Taranto, 275 App. Div. 1061; People v. Caruso, 184 App. Div. 512; People v. Gerace, 254 App. Div. 135.)

      Edward S. Silver, District Attorney (William I. Siegel of counsel), for People of the State of New York.
    I. The Appellate Division erred in dismissing the indictment as to Lee. The case should, have been returned to the County Court for a new trial as to him. (People v. Bellows, 281 N. Y. 67; People v. Scheinman, 295 N. Y. 142; People v. Potskowski, 298 N. Y. 299; People v. Campanaro, 223 App. Div. 248, 249 N. Y. 545; People v. Cohen, 223 N. Y. 406; People v. Eng Hing, 212 N. Y. 373; People v. Seppi, 221 N. Y. 62; People v. Trybus, 219 N. Y. 18; People v. Lytton, 257 N. Y. 310; People v. Brengard, 265 N. Y. 100; People v. Reddy, 261 N. Y. 479; People v. Stilwell, 244 N. Y. 196.) II. The action of the Appellate Division in remitting the case against defendants Sarra and McCarthy to the County Court for a new trial was proper. (People v. Ledwon, 153 N. Y. 10; People v. McCarthy, 250 N. Y. 358; People v. Gluck, 188 N. Y. 167; People v. Wrieden, 299 N. Y. 425; People v. Katz, 290 N. Y. 361; People v. Scott, 153 N. Y. 40; People v. Munroe, 190 N. Y. 435.)
   Froessel, J.

Defendants were convicted of first degree robbery and second degree assault. The Appellate Division reversed the judgments of conviction for errors in the admission of evidence offered by the People, and in the trial court’s charge to the jury. These errors are not in issue on this appeal. As to defendants Sarra and McCarthy, a new trial was ordered; as to defendant Lee, the indictment was dismissed, the majority holding that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

Cross appeals are now before us, the People contending only that as to Lee a new trial should also have been ordered, and defendants Sarrá and McCarthy urging that the indictments should have been dismissed as to them.

We agree with the Appellate Division in their reversal of the convictions, and in ordering a new trial for Sarra and McCarthy. Said defendants’ principal claim here is that their story of a street fight is inherently more believable than complaining witness Lehr’s testimony of robbery and assault. But obviously this problem of credibility was, on the record before us, a matter for the jury, notwithstanding the fact that Lehr had a criminal record (People v. Landers, 264 N. Y. 119, 122; People v. Arata, 255 N. Y. 374, 375-376; People v. Cohen, 223 N. Y. 406, 422, motion for reargument denied 227 N. Y. 623, certiorari denied 248 U. S. 571; People v. Eng Hing, 212 N. Y. 373; People v. Campanaro, 223 App. Div. 248, 252, affd. 249 N. Y. 545). Although phrased in terms of sufficiency of the evidence, defendants’ argument is really directed to its weight. It being clear that there was sufficient evidence to support the verdicts against Sarra and McCarthy, the Appellate Division lacked the power, even had it so desired, to dismiss the indictment as to them (People v. Bellows, 281 N. Y. 67; People v. Scheinman, 295 N. Y. 142; People v. Potskowski, 298 N. Y. 299; see, also, People v. Rudolph, 303 N. Y. 73). Moreover, even where the evidence at the first trial is insufficient, a new trial may be properly ordered (People v. Orr, 270 N. Y. 193; People v. Romano, 279 N. Y. 392; People v. Guardino, 286 N. Y. 132; People v. Bearden, 290 N. Y. 478; People v. Margiotta, 292 N. Y. 26; People v. Rosen, 294 N. Y. 761; Code Crim. Pro., § 543). Their other contentions are clearly without merit.

As to defendant Lee, however, we are of the opinion that Lehr’s identification of Lee, when considered in the light of all the other evidence, was sufficient for the jury to pass upon, and that the majority of the Appellate Division erred in holding the evidence against Lee to be insufficient as a matter of law.

Accordingly, the orders of the Appellate Division with respect to Sarra and McCarthy should be affirmed. With respect to Lee, the order appealed from should be modified insofar as it dismissed the indictment, the indictment should be reinstated, and a new trial ordered; in all other respects the order should be affirmed. Lee’s application upon the argument of this appeal for a reargument of the motion to dismiss the appeal is denied.

Conway, Ch. J., Desmond, Dye, Fuld, Van Voobhis and Bubke, JJ., concur.

Ordered accordingly.