author: Conway, J.

text:
    In the Matter of the Arbitration between Isidore Lipschutz et al., Appellants, and Albert Gutwirth, Respondent.
    Argued January 25, 1952;
    decided April 17, 1952.

      Leon Finley and David 8. Meyer for appellants.
    I. The contract provided for the appointment of three arbitrators and the Appellate Division under the guise of interpretation or construction could not make a new contract or change the terms of the present contract between the parties. (Mandel v. Liebman, 303 N. Y. 88; Youssoupoff v. Widener, 246 N. Y. 174; Ga Nun v. Palmer, 216 N. Y. 603; Matter of Kallus [Ideal Novelty & Toy Co.], 292 N. Y. 459; Gilbert v. Burnstine, 255 N. Y. 348; Rosenthal v. American Bonding Co., 207 N. Y. 162; Brainard v. New York Central R. R. Co., 242 N. Y. 125; Friedman v. Handelman, 300 N. Y. 188; Heller & Henretig, Inc., v. 3620-168th St., Inc., 302 N. Y. 326; Matter of Bullard [Grace Co.], 240 N. Y. 388; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Kahn [National City Bank], 284 N. Y. 515.) II. The appointment of a sole arbitrator to serve without restrictions as to hearing or compensation was an improper exercise of discretion by the Appellate Division. (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Meng, 227 N. Y. 264; Hoops v. Hoops, 292 N. Y. 428; Matter of Webster [Van Allen], 217 App. Div. 219; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Waldo v. Schmidt, 200 N. Y. 199; People v. Hall, 169 N. Y. 184; Matter of Bar Assn. of City of N. Y., 222 App. Div. 580; Matter of Barkley v. New York Central & H. R. R. R. Co., 42 App. Div. 597; Louisiana Constr. Corp. v. Cortland Bay Shore Corp., 274 App. Div. 813; Matter of Orange Pulp & Paper Mills [Pulp Sales Corp.], 285 N. Y. 752.)

      Max A. Gulack for respondent.
    I. The exclusion of respondent only in the selection of arbitrators would deprive him of a substantial contractual right, and such exclusion would constitute a denial to him of status equal to that accorded to appellants; such exclusion would also operate to deprive the arbitration of the balance and impartiality which are essential to an arbitration proceeding. The Appellate Division properly appointed a single arbitrator in order to give effect to the arbitration clause. (Matter of Feuer Transp., Inc. [Local No. 445], 295 N. Y. 87; Matter of Marchant v. Mead-Morrison Mfg.

      Co., 252 N. Y. 284; Day v. Hunt, 112 N. Y. 191; Matter of Hunter [Proser], 274 App. Div. 311; Matter of Barkley v. New York Central & H. R. R. R. Co., 42 App. Div. 597.) II. Appellants became identified with each other for all purposes and their actions and position are indivisible. (Matter of Lipschutz [Gutwirth], 279 App. Div. 652.) III. The facts demonstrate that the appointment of an arbitrator by Lipschutz of itself must create an improper and unbalanced board, particularly as such arbitrator will help to determine the formation of the board, as finally constituted. (Matter of American Eagle Fire Ins. Co. [New Jersey Ins. Co.], 240 N. Y. 398; Oakley v. Aspinwall, 3 N. Y. 547; Fudickar v. Guardian Mut. Life Ins. Co., 62 N. Y. 392; Day v. Hunt, 112 N. Y. 191; Matter of City of Rochester, 208 N. Y. 188; Wilcox v. Supreme Council of Royal Arcanum, 210 N. Y. 370; Matter of Fletcher, 237 N. Y. 440; McCormick v. Walker, 158 App. Div. 54; Matter of Friedman, 215 App. Div. 130; Empire Plexiglass Corp. v. Levitt Corp., 192 Misc. 251; Matter of Albert [Spiegelberg], 146 Misc. 811.)
   Conway, J.

This is an appeal, as of right, from an order of the Appellate Division, First Department, unanimously modifying on the law and the facts an order of Special Term of Supreme Court, New York County, directing that the parties proceed to arbitration and appointing an arbitrator.

Appellants, Isidore Lipschutz and Charles Gutwirth, and respondent, Albert Gutwirth, nephew of Isidore and son of Charles, are parties to a partnership agreement. An arbitration clause in that agreement provides for the arbitration of disputes by three arbitrators — ‘ ‘ the First Party [Isidore Lipschutz] shall select his arbitrator, and the Second and Third Parties [Charles and Albert Gutwirth, father and son] jointly shall select their arbitrator; and the two arbitrators shall thereupon select a third arbitrator. * * * ”

Controversies arose between appellants and respondent due to the latter’s alleged lack of concern for the welfare of the partnership. Pursuant to the arbitration clause Isidore demanded that the controversy be submitted to arbitration and designated his arbitrator. Albert and Charles could not, however, agree upon a joint arbitrator — due, among other things, to Albert’s insistence that he be permitted to select an arbitrator independently since the interests of Charles and Isidore in the controversy were identical and adverse to Ms. Upon motion made by appellants and pursuant to sections 1450 and 1452 of the Civil Practice Act, Special Term appointed a joint arbitrator for Charles and Albert and directed that arbitration proceed. That joint arbitrator together with the arbitrator selected by Isidore chose a third person as provided by the agreement of the parties. Respondent thereupon appealed to the Appellate Division wMch was of the opinion that because of the change in alignment of the partners, not contemplated when the agreement was entered into, the contract providing for arbitration should be construed as though no method [for appointing arbitrators] were provided therein.” (278 App. Div. 132, 133.) That court then entered an order appointing a single arbitrator and directing that arbitration proceed before such person.

The sole question presented on this appeal is whether, under the circumstances presented, it was error for the Appellate Division to disregard the provisions of the contract of the parties wMch provided for the settlement of disputes by a panel of three arbitrators, one of whom was to be selected by appellant Isidore.

Appellants contend that the Appellate Division, in appointing a single arbitrator, has rewritten the contract of the parties. Respondent, on the other hand, argues that the designation of a single arbitrator was a proper exercise of discretion, especially since appellants allegedly seek to deprive respondent of Ms interest in the firm.

The present statutory provisions regarding arbitration are to be found in article 84 of the Civil Practice Act (L. 1937, ch. 341, as amd.). The purpose of that article is to give effect to contracts providing for the settlement of disputes before tribunals of the parties’ own choosing by rendering such agreements irrevocable and, in effect, subject to specific enforcement. The provisions of article 84 are intended to strengthen — not change — the rights and obligations of parties to arbitration agreements. The law ‘ does not bring the contract into being, but adds a new implement, the remedy of specific performance, for its more effectual enforcement.” (Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284, 293.)

The spirit of the arbitration law being the fuller effectuation of contractual rights, the method for selecting arbitrators and the composition of the arbitral tribunal have been left to the contract of the parties. Sections 1450, 1453, and 1462 of article 84 bear witness to the fact that the Legislature in enacting that article intended that the Supreme Court give due regard to the method and procedure prescribed by the contract of the parties. However, at times parties, for one reason or another, fail to make provision for a method of naming arbitrators or fail to designate in their contract the panel of arbitrators or the arbitrator who is to settle their dispute. An order directing the parties to agree on the matter in dispute would be impractical since an agreement, by its very nature, is dependent upon the concurrence of free wills and cannot be brought into existence by coercion. Moreover, even though a method has been provided, a party may refuse to avail himself of his right, under the contract, to select an arbitrator. In the absence of statutory provision for the appointment of arbitrators under those circumstances, the plan for arbitration could be thwarted and the right of the other party or parties rendered valueless. Section 1452 of the Civil Practice Act, conferring power upon the Supreme Court to designate arbitrators, was enacted to cover such situations. It is apparent from a reading of section 1452 that it is but part of the overall plan of article 84 of the Civil Practice Act to honor the contractual rights and obligations of the parties. That section is entitled, ‘ ‘ Provision in case of failure to name arbitrator or umpire ” and provides: If, in the contract for arbitration * * * provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or for any reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then, upon application by either party to the controversy, .the supreme court, or a judge thereof, shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said contract * * * with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided, the arbitration shall be by a single arbitrator.”

From the plain wording of that section it will be seen that if the parties have provided for a method of naming or appointing an arbitrator the,Supreme Court shall follow such method and is empowered to designate an arbitrator only if “ any party thereto shall fail to avail himself of such method, or for any reason there shall be a lapse in the naming of an arbitrator or arbitrators * * It is also clear that the power of the court to provide for arbitration by a single arbitrator is limited to those cases where the parties have not provided otherwise — “ unless otherwise provided, the arbitration shall be by a single arbitrator.” (Emphasis supplied.)

The right to have disputes adjusted by several rather than one arbitrator is not to be lightly regarded. The widespread practice of parties to arbitration agreements of making provision for those rights indicates the value placed upon them. Our appellate systems are a result of the general view that there is less possibility for error where the question for decision is to be considered by a tribunal consisting of more than one person.

Here the contract of the parties provides for a panel comprised of three persons. Appellant Isidore has the contract right to appoint one arbitrator. Appellant Charles and respondent Albert have the contract right to appoint a second arbitrator. The two arbitrators thus selected have the contract power to select a third arbitrator. Despite those facts the Appellate Division has sought to compel the parties to submit their controversy to a single arbitrator. Clearly since Charles and Albert cannot agree upon an arbitrator the Supreme Court, under the provisions of section 1452, has the statutory power to appoint an arbitrator for Charles and Albert jointly. However, that is the limit of the court’s power. The arbitrator so selected and the one chosen by Isidore will select a third.

Undoubtedly the Supreme Court in acting in arbitration matters does act as a court of equity — it applies equitable principles and enjoys a certain latitude of discretion. (Matter of Feuer Transp., Inc. [Local No. 445], 295 N. Y. 87; Western Union Tel. Co. v. Selly, 295 N. Y. 395.) Furthermore, it is familiar law that equitable relief may be tailored to the demands of circumstances and that the granting of the remedy of specific performance rests in the broad discretion of the court. (2 Story, Equity Jurisprudence [14th ed.], §§ 1026-1027, pp. 407-408.) However, it is also well established that equitable discretion is limited to the necessities of the situation. In addition in matters arising under article 84 that discretion must be exercised in consonance with the agreement made by the parties and to that extent it may be said that the discretion of the court in arbitration matters is not as broad and untrammeled as that of equity generally. The court should, unless there exists a real probability that injustice will result, adhere to the method established by the contract and forego the rewriting of the contract for the parties. No such probability exists here.

■ Let us assume for the purpose of discussion a situation where a dispute arises and the alignment remains the same as that supposedly contemplated at the time the contract was drawn viz., Charles and his son Albert arrayed against Isidore. It is conceivable that Charles and Albert, though their interests in the dispute be identical, would be unable to agree on the joint arbitrator. Upon petition of one of the parties, the court acting under section 1452 would, presumably, appoint a joint arbitrator for Charles and Albert. The effect would be the same as that resulting from Special Term’s order in the instant matter: One “side” — Isidore — would be permitted to choose one arbitrator and the other arbitrator would be appointed by the court. If in that situation the court could appoint a single arbitrator the result would be that Isidore’s right to appoint an arbitrator and to have disputes decided by three arbitrators for which he had contracted could be defeated at any time by his partners’ actual or feigned inability to agree upon their joint arbitrator. Certainly under those circumstances the court would not have the power to so disregard the contract of the parties. We are unable to perceive any good reason why the result should be any different simply because the alignment of the partners has changed. The fact that one “ side ” will be able to appoint its arbitrator whereas the other “ side ” will be required to accept the court’s choice does not work such injustice that contractual rights may be disregarded.

The view that an arbitrator chosen by a party is merely that party’s agent and will act in a partial manner, as suggested by respondent, may not be accepted. Under section 1455 of the Civil Practice Act arbitrators swear “ faithfully and fairly to hear and examine the matters in controversy and to make a just award according to the best of their understanding * * If that oath be violated and an award procured by fraud or corruption or if an award be tainted by partiality or interest of an arbitrator, it will be vacated. (Matter of Shirley Silk Co. [American Silk Mills], 260 App. Div. 572; Matter of Friedman, 215 App. Div. 130; Civ. Prac. Act, § 1462.) Upon a showing that there is reason to believe that an arbitrator is incapable of discharging his duties in an impartial manner he may be removed. (Western Union Tel. Co. v. Selly, 295 N. Y. 395, supra.) Thus it is clear that the law provides adequate protection for the interests of Albert.

Of course the right to designate an arbitrator is as valuable to Albert as it is to Isidore. But Isidore contracted for the right to do so independently and Albert did not. We do not see that harm may result from honoring the contractual right of Isidore to select an arbitrator or that any useful purpose will be served by altering the framework within which the parties have agreed that their disputes be settled.

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

Loughran, Ch. J., Lewis, Dye, Fuld and Froessel, JJ., concur with Conway, J.; Desmond, J., dissents for the reasons stated by the Appellate Division in its Per Curiam opinion.

Ordered accordingly.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    In the Matter of the Claim of Stanley Kopec, Claimant, against Buffalo Brake Beam-Acme Steel & Malleable Iron Works, Respondent. Workmen’s Compensation Board, Appellant.
    Argued January 23, 1952;
    decided April 17, 1952.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, appellant.
    Ample evidence supported the determination of the Workmen’s Compensation Board that the accident and the injuries which claimant had sustained on February 12, 1943, reactivated and aggravated a pre-existing quiescent tuberculosis which caused him to be totally disabled. (Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Daus v. Gunderman & Sons, 283 N. Y. 459; Matter of Dawson v. Preston Pastry Shop, 274 App. Div. 956; Matter of Kolokotroni v. Oyster Bay Restaurant, 277 App. Div. 822; Matter of Steinberg v. Supreme Coat Makers, Inc., 271 App. Div. 762; Matter of Webster v. St. Joseph Lead Co., 264 App. Div. 800; Matter of Huffman v. Cast Traffic Sign Corp., 258 App. Div. 1013; Matter of Salli v. Standard Wrecking & Salvage Co., 254 App. Div. 789; Matter of Kaplan v. Kaplan Knitting Mills, 248 N. Y. 10; Matter of Plouff v. Port Henry Light, Heat & Power Co., 225 App. Div. 704, 250 N. Y. 616; Matter of Ruso v. Beverwyck Breweries, Inc., 276 App. Div. 878.)

      William A. Kirk and Benedict T. Mangano for respondent.
    Upon a review of the whole record there is no substantial evidence that claimant is totally disabled as a result of tuberculosis activated or aggravated by the accident of February 12, 1943. (Matter of Rumsey Mfg. Corp. [Corsi], 296 N. Y. 113; Matter of Stork Restaurant v. Boland, 282 N. Y. 256; Universal Camera Corp. v. Labor Bd., 340 U. S. 474; Labor Bd. v. Pittsburgh S. S. Co., 340 U. S. 498; Matter of McCormack v. National City Bank, 303 N. Y. 5.)
   Fuld, J.

In February of 1950, the Workmen’s Compensation Board awarded claimant compensation for total disability upon the hypothesis that a 1943 accident had activated a pre-existingquiescent tuberculosis. Upon appeal, the Appellate Division, concluding that there was no substantial evidence to support the Board’s finding that the disability resulted from the accident, reversed, and with that determination we agree.

The accident occurred on February 12, 1943, when the upper portion of a molding machine operated by claimant separated and flew off, striking him in the chest and chin, and fell on his left foot. Parts of two toes had to be amputated and his chest was bruised. A claim was filed with the Board for compensation for the injuries resulting from the accident, and that case was originally closed in January, 1944, with an award for 20% loss of use of the left foot. An examination of claimant’s lungs, made in connection with the accident claim, revealed something wrong and he was advised to file a new claim for ‘ ‘ an industrial occupational disease.”

Numerous physicians examined claimant in connection with the new claim, and all testified that he was suffering from sill-' cosis, which coexisted with a probable tuberculosis infection in the lungs. His exposure to silica dust, in his occupation as a molder, was considered by all — including claimant’s witnesses, Dr. Nowak and Dr. Scott — to be the cause of the silicosis-tuberculosis condition. The referee, finding claimant to be totally disabled as a consequence of this ailment, rendered an award under old Article 4-A of the Workmen’s Compensation Law dealing with silicosis and other dust diseases. The Board, however, on the carrier’s appeal, in November, 1945, rescinded the determination on the ground that in our considered judgment ”, claimant is not totally disabled because of the silicosis” — which, as the statute expressly provided, rendered the claim noncompensable under Article 4-A (Workmen’s Compensation Law, § 66, repealed by L. 1947, ch. 431, § 14; similar provision embodied in present § 39). In so ruling, the Board went on to direct “ that the record should be further developed as to whether the claimant had or has an active tuberculosis related to the accident.”

On the remand, however, claimant, through his newly retained attorney, contended that the Board’s decision did not preclude further consideration of the silicosis claim; regarding it as absurd ” to assert that claimant’s illness was connected with the accident, his counsel urged that the issue of total or partial disability under Article 4-A should be settled, once and for all, by the Board’s expert consultant. The referee nevertheless ruled that the Board’s decision authorized him to try only the single issue whether claimant’s illness was related to the accident, and he proceeded to take testimony on that question.

For the carrier, Dr. Strohm and Dr. Donnelly, both chest specialists, declared that, in their opinion, the accident had no bearing upon claimant’s tuberculosis infection, having neither caused nor in any way aggravated his condition.

Dr. Nowak, a general practitioner and claimant’s personal physician, and Dr. Scott, an internist, were again called by claimant. Both had consistently, in their reports and their prior testimony before the Board, taken the position that claimant’s silicosis and tuberculosis were occupationally caused, and Dr. Scott, at least, adhered to this diagnosis on the stand, concluding, in response to questioning by claimant’s attorney, that “ I think there was no direct causal relationship ” between the accident and claimant’s “ present condition ”. When pressed further as to whether the injuries suffered in the accident “ would * * * tend to aggravate or activate a [pre-existing tubercular] condition rather than to have a beneficial effect upon the * * * condition ”, he testified that “ I can’t make a direct statement as to that.” Dr. Nowak also reasserted, in an early part of his testimony, the diagnosis that ‘ ‘ the silicosis underlies the whole condition ’ ’ — but, when the theory of a relationship between the accident and the claimant’s illness was suggested to him on direct examination, he then, for the first time, stated that he believed that the accident did aggravate the tuberculosis.

Quite obviously, such inconsistent, variable testimony was not worthy of belief, and the referee in effect so concluded, holding that “ there is no causal relationship [between accident and disability] and I so find.” On appeal, the Board in December of 1946 rescinded all prior determinations and directed that an expert consultant render an opinion. Thereafter, Dr. Whipple, the Board’s consultant on lung diseases, reported — and his report was concurred in by two other impartial physicians — that, while claimant was “ totally ” disabled from “ silicosis with infection, probably tuberculosis ”, such disability is causally related to his occupation as a moulder. There is no evidence to associate his disability or aggravation of his silicosis or infection as a result of alleged injury 2/12/43.”

Because of that expert panel’s finding of total disability, the silicosis claim was relitigated. The referee found that claimant was only partially disabled, and, accordingly, disallowed the claim. There followed a new appeal to the Board, on which claimant again contended that the evidence called for a finding of total disability. There was not the faintest suggestion of an intention to press the accident claim, counsel stating that the only question to be passed upon is that of the weight to be attached to the opinion of your own experts. ’ ’ Some time later, in March, 1948, the Board did rescind the referee’s award, but — ignoring claimant’s arguments and the testimony of the expert panel — placed its decision on the ground that the accident, superimposed upon a quiescent tuberculosis, activated such tubercular condition, causing it to progress to its present state and resulting in claimant’s being permanently, totally disabled ”.

Despite the Board’s ruling, the referee by whom the case was then heard rendered an award for total disability resulting from silicosis, and, most strangely, the Board confirmed that award. The employer thereupon appealed to the Appellate Division and, while that appeal was pending, the Board in February of 1950, declaring that the award did not reflect its prior rulings, modified its decision “ by finding accident ” and by adjusting the amount of the award to meet the changed basis of compensation. The carrier filed a new appeal, and, as earlier indicated, the Appellate Division reversed and set aside the award; the court, in addition, reinstated the Board’s original 1944 decision awarding claimant compensation for 20% loss of his left foot and closing the case. (See 279 App. Div. 945.)

The question that we are called upon to decide is whether the Board’s decision that there was a causal relationship between the accident of February 12,1943, and claimant’s tubercular condition is supported by substantial evidence. (See, e.g., Matter of McCormack v. National City Bank, 303 N. Y. 5; Matter of Avon Bar & Grill v. O’Connell, 301 N. Y. 150; Matter of Tompkins v. Board of Regents, 299 N. Y. 469; Matter of Miller v. Kling, 291 N. Y. 65; Matter of Stork Restaurant v. Boland, 282 N. Y. 256.) Whether or not, as the Appellate Division dissenting justices found, “ there is a residuum of proof ”, is beside the point, for we are here concerned, not with the legal residuum ” doctrine (see, e.g., Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; 1 Benjamin, Administrative Adjudication in the State of New York [1942], pp. 181 et seq.), but with the substantial evidence rule.

Under the test prescribed by our decisions for the judicial review of quasi-judicial determinations, the evidence supporting the findings of an administrative tribunal must be viewed in the light of the record as a whole ” (Matter of McCormack v. National City Bank, supra, 303 N. Y. 5, 9), since “ Evidence which unexplained might be conclusive may lose all probative force when supplemented and explained by other testimony.” (Matter of Stork Restaurant v. Boland, supra, 282 N. Y. 256, 274.) That principle in mind, the quasi-judicial determination is to be sustained if the reviewing court concludes that others might reasonably reach the same result.

This does not mean that the reviewing court will substitute its judgment for the considered judgment of the administrative tribunal. It does mean, however, that it will apply the only available objective test to determine whether the administrative tribunal did in truth exercise such considered judgment and that it will insist upon “ 1 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. ’ (Consolidated Edison Co. v. National Labor Relations Board, 305 U. S. 197, 229.)" (Matter of Stork Restaurant v. Boland, supra, 282 N. Y. 256, 274.) As Benjamin expressed it in his work on Administrative Adjudication (op. cit., pp. 336, 338-339), “ The substantial evidence rule, providing as it does for a review of the rationality of a quasi-judicial determination on all the evidence that was before the administrative tribunal, is broad enough, and is capable of sufficient flexibility in its application, to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. * * * The interests of the parties require * * * that quasi-judicial determinations of fact be subjected at least to the test of rationality which the substantial evidence rule provides, both because review of this scope affords a means of correcting abuses in individual cases and because the cautionary effect of the prospect of such review should help to assure proper administrative adjudication in the first instance. * # * Approaching the problem from the other side * * * review as broad as under the substantial evidence rule is entirely consistent with effective administration.”

Judged according to these criteria, the awai\ 1 under review cannot stand, for the evidence may not be said even to approach substantiality. Of the innumerable medical reports and voluminous testimony in the record before the Board, only one segment of the testimony of a single witness, Dr. Nowak, even suggested the existence of a causal connection between the accident of February 12, 1943, and claimant’s tubercular condition. Supported solely by this dictum of a general practitioner, the Board rejected the unanimous findings of numerous chest and lung specialists, including those of the expert panel to which the Board itself had expressly referred the questions at issue. Indeed, although Dr. Nowak was well aware of the circumstances of the 1943 accident, neither in his testimony nor in his many reports did he ever hint that that accident had any bearing upon claimant’s tuberculosis, adopting such a theory only after it had been suggested by claimant’s attorney at the hearings. It is significant also that the referee who heard the testimony on this point found that claimant’s illness was causally unrelated to the accident; that, when this finding was appealed, the Board did not reverse, but instead referred the case to its own expert consultants; and that, when those consultants rendered an opinion in accord with the finding of the referee, the Board nevertheless proceeded to find that a causal relation existed. Thus, the very history of the case before the administrative agency reinforces the conclusion that its decision lacked the support of substantial evidence.

The order of the Appellate Division should be affirmed, with costs.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessbl, JJ., concur.

Order affirmed.

      . The claimant could not have recovered on such a basis. It had apparently been overlooked that the disability had not become total — as the law then required (Workmen’s Compensation Law, former § 67, repealed by L. 1947, ch. 431, § 14) — “ within one year after the last injurious exposure ” in the employment; claimant had stopped working in May of 1944 and more than a year later, in November of 1945, the Board had, as noted above, found that he was but partially disabled.


author: Froessel, J. Fuld, J.

text:
    Robert H. Moeller, Respondent, v. Associated Hospital Service of Capital District, Appellant.
    Argued January 18, 1952;
    decided April 17, 1952.
    J. Vanderbilt Straub and Joseph Boochever for appellant.
    Payment of hospital benefits to plaintiff is excluded by the terms of the policy. (Calhoun v. West End Brewing Co., 269 App. Div. 398; Matter of Wolkenstein v. Luminart Lampshade Products, 263 App. Div. 218; Austin v. Bridges, 34 N. Y. S. 2d 3; Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514; Phoenix Ind. Co. v. Staten Island R. T. Ry. Co., 251 N. Y. 127, 281 U. S. 98.)

      William, G. Breed, Jr., and John L. Shurtleff for Associated Hospital Service of New York, amicus curiae, in support of appellant’s position.
    I. Respondent’s hospital service was “ provided for ” under a compensation law since his injury was sustained under such circumstances as to be compensable. H. Respondent’s injury arose in such manner as to make it compensable under the Workmen’s Compensation Law. It does not cease to be a compensation case merely because a third party’s negligence caused the injury. (Calhoun v. West End Brewing Co., 269 App. Div. 398.) III. Any other construction of the contract denies any meaning to the exclusion clause. (Campbell v. State of New York, 240 App. Div. 304.)

      Thomas V. Kenney and Lindsley McChesney for respondent.
    Defendant is liable to plaintiff under the terms of its policy. (Matter of Ridgeway, 33 Wn. [2d] 249; Bushey & Sons v. American Ins. Co., 237 N. Y. 24; Paskusz v. Philadelphia Cas. Co., 213 N. Y. 22; Janneck v. Metropolitan Life Ins. Co., 162 N. Y. 574; Thompson v. Phenix Ins. Co., 136 U. S. 287; Gillet v. Bank of America, 160 N. Y. 549; Aldrich v. New York Life Ins. Co., 235 N. Y. 214; Hoffman v. Ætna Fire Ins. Co., 32 N. Y. 405; Yeaton v. Fry, 5 Cranch [U. S.] 335.)
   Froessel, J.

Plaintiff had a contract for hospital insurance with defendant, a nonprofit corporation organized under the Insurance Law of this State. Paragraph III of its policy defined Hospital Service ”, but as an exclusion under subdivision 4f provided: “ Hospital Service provided for under any Compensation Law, or other law enacted by the Legislature of any State or the Congress of the United States.”

During the life of said policy, plaintiff was injured in the course of his employment, and his hospital expenses were paid by his employer through its compensation carrier. Thereafter plaintiff brought a third-party action, and, on settlement of same, for the sum of $35,000 — which sum necessarily included hospital expenses and other special damages — the compensation carrier enforced its lien upon the proceeds of the settlement for the amount it had paid on account of the compensation claim, which embraced the hospital expenses. Plaintiff now seeks to recover the hospital expenses from defendant under his hospital insurance contract with it inasmuch as the third party reimbursed the compensation carrier. The controversy was submitted to the Appellate Division on an agreed state of facts.

The court below held that when the carrier has been thus reimbursed it has no longer 6 provided ’ the hospital service under the compensation statute.” (278 App. Div. 723.) It overlooked the fact that the insurance contract does not read Hospital Service provided ”, but Hospital Service provided for under any Compensation Law ” (emphasis supplied). Surely the hospital service was here provided for under subdivision (a) of section 13 of the Workmen’s Compensation Law, which requires that the employer shall promptly provide for an injured employee such medical * * * and hospital service ” (emphasis supplied), and the “ employer shall be liable ” therefor. This liability shall not be affected by the fact that his employee was injured through the fault or negligence of a third party ” (§ 13, subd. [c]; see, also, § 10) nor by any hospital insurance contract (Insurance Law, § 258). There can be no doubt, therefore, that the plain provisions of the insurance contract excluded that service from coverage. Plaintiff never lost the protection of the statute with respect to hospital expenses; he did not even have to ‘ ‘ elect whether to take compensation and medical benefits * * * or to pursue his [third-party] remedy” (Workmen’s Compensation Law, § 29, subd. 1).

If he did not prevail in the third-party action, he nevertheless retained the benefits of the hospital expenses furnished by the employer’s insurance carrier; if he did prevail, he likewise retained these benefits, but the third-party wrongdoer, not plaintiff, had to reimburse the carrier. While plaintiff was entitled to sue for these expenses, it was on behalf of the carrier, and the law gave the carrier a lien therefor (Workmen’s Compensation Law, § 29; Calhoun v. West End Brewing Co., 269 App. Div. 398). He could never recover these medical expenses for himself ; they belonged under the statute to the carrier. How then can it be said that he paid them? The statute gives the employee the first opportunity to bring the third-party action subject to the carrier’s lien for hospital expenses and other payments made. If the employee fails to bring the action within the statutory time, the carrier may then bring suit and reimburse itself in full for such payments, the employee receiving only a portion of the excess. Certainly in the latter event the employee is not entitled to recover such hospital expenses. We could not very well make one rule in case the employee sues and another when the carrier institutes the action.

When it is recognized that the statute provides for hospital care in any event, giving to the employer or its carrier a right of recovery against the third party through the medium of the employee’s action against said party (Calhoun v. West End Brewing Co., supra), or, if the employee chooses not to sue, through its own action, it becomes apparent that the employee does not pay for his own hospital service. The initial liability is the employer’s, and the ultimate liability therefor falls, as it should, upon the wrongdoer responsible for his injuries. To adopt plaintiff’s view would give him a windfall; without paying these expenses, he would in effect be collecting his hospital bill from the third-party wrongdoer for his employer, and again from the defendant. The language of the policy does not bear this construction and we should not strain to reach such result, the effect of which can only mean an increase in hospital plan premiums generally. Such plans are administered, as here, by nonprofit organizations (Insurance Law, art. IX-C) with a view to making their service widely available at low cost, and not to profit their subscribers.

The judgment of the Appellate Division should be reversed and judgment directed in favor of defendant, without costs.

Fuld, J.

(dissenting). To accept defendant’s position and say that its policy does not entitle plaintiff to recovery is to overlook the manifest design of the policy and to read it in a purely mechanical fashion. The policy excludes from its coverage, “ Hospital Service provided for under any Compensation Law,” and indisputable is the fact that the hospital services which the court is placing beyond the coverage of the policy are actually “ provided for ” by the common law of negligence and not by the Workmen’s Compensation Law. True, liability is imposed by that statute upon the employer or its carrier in the first instance. However, ultimate liability ” for the services is not affected by the compensation statute but is to be determined by common-law rules. (See Western Union Tel. Co. v. Cochran, 302 N. Y. 545, 550.) Thus, as the court’s opinion points out, the carrier is granted a lien upon any recovery which the employee secures from the negligent third party (Workmen’s Compensation Law, § 29, subd. 1), and, should the employee fail to proceed against the third party, the carrier is empowered to sue in his stead and to reimburse itself out of the proceeds (Workmen’s Compensation Law, § 29, subd. 2). Hence the provision made by the Compensation Law for payment of hospital services is temporary in character only, contemplating cancellation and reimbursement at such time as the liability of the third party for those services is fixed according to common-law principles. The parties to this policy did not have in mind such a provisional, cancelable liability when they excluded from the policy’s coverage “ Hospital Service provided for under any Compensation Law ”. Clearly, they intended to relieve the insurer from liability only where a Compensation Law is the ultimate source of liability for the services involved, and to construe the policy otherwise is, I suggest, to endow the phrase “ provided for ” with a meaning wholly divorced from reasonable purpose and common understanding.

This is borne out by a consideration of the facts of the case before us. On November 19, 1946, while in the employ of the Ludlow Valve Company, plaintiff was injured through the negligence of the New York Central Railroad. For some six weeks after the accident he was confined to a hospital. The State Insurance Fund, as compensation carrier for the employer, acknowledged that plaintiff had a valid claim under the Workmen’s Compensation Law and paid him benefits of $2,526.64, including $371.50, the amount of the hospital’s bill for his care and treatment. Those payments were, in the course of time reimbursed to the Fund by plaintiff under the following circumstances.

Some time after the accident, plaintiff brought a common-law action against the New York Central Railroad for his personal injuries. In October, 1948, the suit was settled by the Railroad’s paying $35,000 to plaintiff. The Fund thereafter asserted a lien against the proceeds for the compensation benefits paid to plaintiff, which plaintiff discharged by paying the Fund $2,526.64, including the sum of $371.50 for his hospital bill. There is nothing in the submitted facts to indicate that the latter item was included in the $35,000 settlement as an element of plaintiff’s recovery. That circumstance is of compelling significance, for, if the hospital costs were not included, plaintiff will, unless he recovers here, be out-of-pocket for what his hospitalization cost.

Even if I were to assume, however — though all basis for that assumption is here lacking — that plaintiff’s settlement with the railroad company included the $371.50 hospital bill, the exclusion clause does not insulate defendant from liability under its policy. In the common understanding of laymen, the policy was designed to impose the ultimate cost of plaintiff’s hospitalization upon defendant Hospital Service unless, as a practical matter, the Compensation Law imposed such costs on his employer or the latter’s carrier. In this case, that statute had no such effect. Even if the payment for plaintiff’s hospital bill ultimately came from the settlement proceeds, it was the railroad company and not the employer or its carrier that bore the costs; it was not the Compensation Law, but the common law that determined and directed the payment of such expenses and the party to pay them. The conclusion seems inevitable, therefore, that the' hospitalization costs defrayed by the railroad were provided for ”, not by the compensation statute, but by common-law rules. Accordingly, a construction that such expenses are not excluded from the coverage of the policy, far from calling for any rewriting of the contract, simply requires that its language be accorded a sensible meaning.

The point is highlighted by supposing that plaintiff had not been engaged in his employment when injured. No one doubts that defendant insurer in such a case would have been under an obligation to make good to plaintiff his medical expenses — whether or not the consequent settlement between plaintiff and railroad included such an item. That being so, the purely fortuitous circumstance that plaintiff was performing his employer’s work when injured should not change the result and relieve defendant insurer of its liability under the policy. Defendant’s liability cannot, and should not, be made to depend upon the hour that plaintiff was hurt or upon the happenstance that the employer or its compensation carrier initially paid the hospital. In other words, no valid and operative distinction may be drawn between the case supposed — where employer or carrier never paid the medical bills — and the actual case before us — where, although it did pay them in the first instance, it was reimbursed by the third party responsible for plaintiff’s injuries. In neither case was it by force of the Workmen’s Compensation Law that the bills were paid.

Every consideration points the conclusion that the parties understood the exclusion clause to relate to the usual industrial accident situation, where the employer is solely and ultimately responsible for the consequences of the employee’s injury, and not to the far less typical case, where the injuries are caused by the negligent act of a third party. It is fair to presume that the latter situation, if considered at all, was regarded as indistinguishable from the case where the identical occurrence takes place outside of the employment and the resulting hospital expenses are unquestionably within the coverage of the policy. As noted already, it is highly illogical to suppose that the parties intended to differentiate between the two eases. To my mind, the majority’s construction of the exclusion clause does damage to the discernible intention of the parties, accords a most refined and unrealistic meaning to the wording and produces an illogical result. And, beyond that, it violates the basic canon that any doubt or ambiguity in the meaning of a policy provision is to be resolved in favor of the insured and against the insurer who selected the phrase in question. (See, e.g., Muller v. Sun Ind. Co. of N. Y., 302 N. Y. 634; Tonkin v. California Ins. Co., 294 N. Y. 326, 328-329; Hartol Products Corp. v. Prudential Ins. Co., 290 N. Y. 44, 49.)

I would affirm the decision of the unanimous Appellate Division.

Lotjghran, Ch. J., Desmond and Dye, JJ., concur with Froessel, J.; Ftjld, J., dissents in opinion in which Lewis and Conway, JJ., concur. ■ !

Judgment reversed, etc.


author: Loughran, Ch. J. Dye, J.

text:
    The People of the State of New York, Respondent, v. George Hetenyi, Appellant.
    Argued January 21, 1952;
    decided April 23, 1952.

      George J. Skivington and George J. Skivington, Jr., for appellant.
    I. The trial court erred in admitting into evidence the gun holster and in its other rulings in connection therewith. (People v. Woltering, 275 N. Y. 51; People v. Kinney, 202 N. Y. 389; People v. Hill, 198 N. Y. 64; People v. Del Vermo, 192 N. Y. 470; Wurtzman v. Kalinowski, 233 App. Div. 187; People v. Jackson, 255 App. Div. 688; People v. Giordano, 213 N. Y. 575; People v. Razezicz, 206 N. Y. 249; People v. Galbo, 218 N. Y. 283; People v. Suffern, 267 N. Y. 115; People v. Lewis, 275 N. Y. 33.) II. Prejudicial error was committed in the summation of the District Attorney. (People v. Wolf, 183 N. Y. 464; People v. Minkowitz, 220 N. Y. 399; People v. Watson, 216 N. Y. 565; People v. Leavitt, 301 N. Y. 113; People v. Forte, 277 N. Y. 440; People v. Fielding, 158 N. Y. 542.) III. Prejudicial error was committed by the District Attorney in his summary in ascribing to defense counsel knowledge on the subject as to where the crime was committed. IY. The District Attorney’s attack upon defendant on religious grounds and on defendant’s changes in religion were prejudicial.

      Clarence J. Henry, District Attorney (Harry L. Rosenthal and John C. Little, Jr., of counsel), for respondent.
    I. The gun holster was properly received in evidence. (People v. Bonier,
      189 N. Y. 108; People v. Neufeld, 165 N. Y. 43; Wilson v. State, 161 Md. 1; People v. Radovich, 122 Cal. App. 176; People v. Del Vermo, 192 N. Y. 470.) II. The comments of the District Attorney in summation were not unduly prejudicial. (Ruloff v. People, 45 N. Y. 213; People v. Priori, 164 N. Y. 459; Williams v. Brooklyn Elevated R. R. Co., 126 N. Y. 96; People v. Watson, 216 N. Y. 565.) III. No error was committed by the prosecution reference to appellant’s changes in religion. IV. There was ample evidence to warrant the submission to the jury of the question as to whether deceased was killed in Monroe County, and to sustain a finding to that effect. (Commonwealth v. Costley, 118 Mass. 1; Commonwealth v. Knowlton, 265 Mass. 382; Hawkins v. State, 60 Neb. 380; People v. Kastel, 221 App. Div. 315.)
   Loughran, Ch. J.

On May 19, 1949, a Grand Jury presented in the Supreme Court of this State an indictment in this text:

The grand jury op the county op monroe, by this indictment, accuse the defendant, George Hetenyi, of the crime of Murder in the First Degree, in violation of Section 1044, subdivision 1, of the Penal Law of the State of New York, committed as follows:

“ The defendant, on or about April 22,1949, in the County of Monroe, New York, wilfully, feloniously and from a deliberate and premeditated design to effect the death of Jean Gareis Hetenyi, killed the said Jean Gareis Hetenyi by shooting her twice in the body with a firearm, thereby inflicting injuries which resulted in and caused her death.”

Jean Gareis Hetenyi was the wife of the defendant. Her bullet-pierced dead body was found in the Genesee Eiver at a point within the county of Monroe on April 23, 1949.

The defendant has been twice tried upon the above indictment. Both trials were held in the County Court of Monroe County. On the first trial, the defendant was found guilty of murder in the second degree and was sentenced to imprisonment for an indeterminate period of time the minimum of which was to be not less than fifty years and the maximum of which was to be for his natural life (see Penal Law, §§ 1046-1048). The defendant challenged that judgment by an appeal to the Appellate Division, because the trial court did not submit to the jury the question whether there was sufficient evidence of the place of the crime as alleged in the indictment, i.e., Monroe County, New York. Indeed the trial court in respect of that question said to the jury: “ The finding of the body of the deceased, in the condition in which it was found within the confines of the County of Monroe, is sufficient as a presumption of law that the shots were fired in the County of Monroe ”. It was impossible, of course, to sustain that ruling. Hence the Appellate Division reversed the first conviction of the defendant (277 App. Div. 310, 317) and, when the People brought that reversal to us for review, we affirmed the Appellate Division (301 N. Y. 757; see Code Crim. Pro., §§ 252, 355, and People v. Hillman, 246 N. Y. 467, 473).

The second trial resulted in a judgment convicting the defendant of murder in the first degree and accordingly he was sentenced to the punishment of death. (See Penal Law, §§ 1044-1045.) From that judgment of conviction, he then appealed directly to this court (see Code Grim. Pro., §§ 517-520).

On the second trial, the question in respect of the alleged place of the crime was submitted by the trial court to the jury in this manner:

“ You will recall, ladies and gentlemen, that during the course of this trial a great deal has been said and much stress has been laid upon the question of the place where this killing occurred, that is, the venue or locus of the crime. I further charge you that, under this indictment, this defendant cannot be convicted of the crime charged or of any of the degrees of homicide unless you find this killing took place in Monroe County. This is a question of fact that must be determined by the jury.

“ However, the standard of proof that is required under our law by which you are to determine this fact is distinctly different from the standard of proof required in determining the fact that the defendant did the killing. This distinction, ladies and gentlemen, is of great importance.

“ You must find that the defendant killed the deceased beyond a reasonable doubt * * #.

“ However, as to the place where the killing occurred, that is the locus or venue of the crime, the proof of that fact does not require proof beyond a reasonable doubt. The venue of the crime is not a part of the crime itself and need not be proven beyond a reasonable doubt. In the absence of direct proof as to the venue, or the place where the killing occurred, that question may be determined by circumstantial evidence from all the relevant evidence.

“ In this case there appears to be no direct evidence as to where the shooting actually took place, so you must rely upon circumstantial evidence in determining that fact; and, again, you are permitted to draw inferences from all the facts and circumstances in the case. * * *

The proof is sufficient if, from all the facts and circumstances introduced in evidence, venue may be fairly and reasonably inferred. If, from the facts in evidence, the only rational conclusion that can be drawn is that the crime was committed in the county alleged, the proof is sufficient.”

When it reversed the judgment entered on the first trial, the Appellate Division said: The locus of the crime is not a part of the crime itself, and, as we view it, need not be proved beyond a reasonable doubt.” In the same opinion, the Appellate Division also quoted with approval the rule expressed in American Jurisprudence (Vol. 20, Evidence, § 1220) in this way: ‘1 The proof is sufficient if, from all the facts and circumstances introduced in evidence, venue may be fairly and reasonably inferred.” (277 App. Div., p. 315.) The rules regulating proof of venue in criminal cases as so laid down by the Appellate Division were on the second trial herein adopted by the Trial Judge as appears by the words we have already quoted from the charge which he delivered to the jury on that trial. We, too, concur in the views expressed by the Appellate Division on that branch of the case.

What follows has reference only to the second trial of the defendant which we now review on the direct appeal he has taken to this court from the judgment of conviction which on that trial was entered against him. We turn first to this basic question: Does the record before us exhibit evidence which justifies the jury’s finding that the killing of the defendant’s wife occurred in Monroe County, New York?

The wife of the defendant was last seen alive on Delaware Avenue in the city of Buffalo in Erie County, New York, at about 8:00 p.m. on Friday, April 22, 1949, by a witness who then and there saw her and the defendant enter an automobile which thereupon moved away. The defendant was next seen early in the morning of April 23, 1949, in the lobby of a hotel in the city of Rochester in Monroe County, and a little later was seen with his automobile on the Court Street bridge which spans the Genesee River in that city. At each of these places, the defendant had a conversation with a person who was a stranger to him and in both conversations he made inquiries in respect of the course and flow of the Genesee River and in respect of a raceway which ran parallel to that river at Court Street.

It was about 4:00 p.m. on April 23, 1949, when the dead body of the defendant’s wife was found in the Genesee River. An hour later, an autopsy was performed upon the body by a coroner’s physician who, as a witness for the People, gave the following testimony: (1) The wife of the defendant was not drowned but was dead when her body struck the water of the Genesee River; and (2) she died between 10:00 p.m. on Friday, April 22, 1949, and 6:00 a.m. on Saturday, April 23, 1949, with a leeway of three or four hours either way.” The same physician listed the causes of death as follows: two gunshot wounds in the chest, fractures of left ribs, perforation of left lung, blood and air in the pleural cavity, bullet wound in the spine, shock and hemorrhage.

The wife of the defendant was killed in his automobile. Numerous stains in which human blood was present were found inside that vehicle on April 26, 1949. A Rochester police officer later found in the vehicle a bullet which he compared with two bullets that had been recovered from the body of the defendant’s wife. In the opinion of that officer as a ballistics expert all three bullets had been fired from the same pistol. The pistol was not found.

The last three paragraphs above are, we think, an adequate outline of the case made by the People. The facts there stated, as we believe, were an ample warrant for the finding by the jury that the crime in question was committed by the defendant in Monroe County, New York, as alleged in the indictment. Hence we pass to a consideration of the arguments that have been advanced in behalf of the defendant on this appeal.

The discovery of the body of the defendant’s wife in the Genesee River was made by Mrs. Clara Beach at about 4:00 p.m. on Saturday, April 23, 1949. At about 10:00 a.m. on that same day Mrs. Beach had been on the same riverbank at some distance from the spot where the body was later discovered by her. On that earlier occasion, she picked up a leather holster which she turned over to the Rochester police. According to expert witnesses for the People, that holster had been constructed to accommodate a twenty-five calibre pistol and other witnesses for the People testified that the defendant once had a similar holster in his possession.

In respect of the holster, however, counsel for the defendant at the conclusion of the charge said to the trial court: “ I ask your Honor to charge that there being no proof that the holster, exhibit 14, was the same as previously seen in the defendant’s possession, the jury may not draw an inference therefrom that the defendant was on the bank of the Genesee River in Monroe County and that he had a gun with which he there killed his wife in Monroe County.” In response to that request, the trial court said: “ I decline to so charge.” But the trial court, at the request of the defendant’s counsel, afterward added to its charge an instruction in this text: If the jury find that this was the same holster they may not draw from that the inference that he possessed the gun which it accommodated.” These last words of the court to the jury upon the subject of the holster must be taken, we think, to have reduced the evidentiary significance of that object to a minimum in the minds of the jury. Hence the admission of the holster into evidence was not, in our judgment, a material error.

The defendant did not take the witness stand nor did he call any witness in his behalf. In the course of the summation for the People, the District Attorney referred to the bloodstains that were found inside the defendant’s automobile and then said that “ nobody in the wide world with one exception ” was ever suing to tell the jury how the stains came to be there. In that summation, the District Attorney also remarked to the jury: <6 I say to you that that lonely dark place on the bank of the Genesee River is the place at which you can infer and must infer, in the light of all the evidence in the case, that this crime took place. By what ruse this defendant brought her down here you’ll never know, nor I’ll never know, not as long as he stands on his constitutional rights, so-called, but undoubtedly there were some.” In the course of his summation, the District Attorney also referred to the testimony of the witness who saw the defendant on the Court Street bridge in the city of Rochester on the night in question. In respect of that testimony, the District Attorney said: “ * * * let me ask this very significant question, — has there been any explanation at all here as to why he was on that bridge by the defense? Not one word. Any explanation indeed as to what he was doing in the city of Rochester the very night his wife’s body was placed in the Genesee River? ”

At the close of the summation of the District Attorney, counsel for the defendant said: “ I except to that portion of his summary in which he said in substance: You and I will never know; he still stands on his constitutional rights.’ ” For a final word, the District Attorney then said: “ If he stands on his constitutional rights.” Despite the exceptions taken by the defendant’s counsel, the Trial Judge ignored the District Attorney’s repeated accentuation of the defendant’s failure to testify. These errors had an obvious tendency to make the trial unfair and cannot be dismissed as merely technical mistakes (see People v. Minkowitz, 220 N. Y. 399, 404-405).

The People were allowed to show the defendant to have been a clergyman who had given up one religion for another at frequent intervals. The reason why that evidence was offered is not obscure. In respect of that evidence the District Attorney in his summation declared to the jury: 111 say to you this, ladies and gentlemen, — I say it in all seriousness, — that you may conclude from his ecclesiastical history certainly one thing, — here’s a man to whom religion is a fraud, who engages in it purely and simply for selfish reasons. Faith to him means nothing. He can transfer from faith to faith to faith when it serves his own selfish interest best. * * * I say to you that from that fact you get at least this aspect of this defendant, and it is all incorporated in that all-informative word, a word none of us like to use, but occasionally must fasten on our fellowman, a renegade, and it shows the character of the man and the character of the man is important in your determinations as to whether he would have committed the crime which has been charged against him.”

Thus the prosecution breached a firmly established rule of our law which in People v. Zackowitz (254 N. Y. 192, 197) was stated by Caedozo, Ch. J., in this way: ‘1 Fundamental hitherto has been the rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it one * * *. In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar.” (See 1 Wigmore on Evidence [3d ed.], §§ 57, 192.) The rule thus forcibly expressed is a rule of fundamental fairness in the protection of the individual against unjust prosecution and is inflexibly enforced in our courts. Hence, we may not overlook a breach thereof as not affecting the substantial rights of an accused within the meaning of section 542 of the Code of Criminal Procedure, ‘ ‘ when the purpose and effect of the breach is to create prejudice against the defendant by proof that his character is bad, even if the evidence convinces us of the defendant’s guilt.” (People v. Nuzzo, 294 N. Y. 227, 233, 234.)

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

Dye, J.

(dissenting). George Hetenyi stands convicted of the crime of murder in the first degree and awaits execution of a duly imposed sentence of death for having, as charged in the indictment, ‘ ‘ on or about April 22, 1949, in the County of Monroe, New York, wilfully, feloniously and from a deliberate and premeditated design * * * killed [his wife] Jean * * * by shooting ” (Penal Law, § 1044, subd. 1).

We all agree with the Chief Judge when he says in the prevailing opinion that “ The facts there stated, as we believe, were an ample warrant for the finding by the jury that the crime in question was committed by the defendant in Monroe County, New York, as alleged in the indictment ”, for on this, record the evidence of defendant’s guilt of the crime charged is indeed incontestable. Nonetheless, a majority take the view that the judgment of conviction should be reversed and a new trial ordered on the ground that the defendant was prejudiced before the jury, when the Monroe County District Attorney, in the course of his summation in behalf of the People, made remarks which, it is said, might reasonably be understood by the jury as an unfavorable reference to defendant’s failure to take the stand in his own behalf, and that he had a bad character.

We have no quarrel with the fundamental soundness of these ancient safeguards and their obvious purpose to assure that an accused shall stand before the bar of justice clothed in the presumption of innocence and with an unblemished character. We are unable however, to agree that on this record the summation by the District Attorney in behalf of the People prejudiced this defendant in a substantial right. It is not unusual that in a long drawn-out and closely contested ease followed by an exhaustive summation, sometimes counsel carelessly and thoughtlessly make remarks that on reconsideration are deemed not only indiscreet and unwarranted by the evidence, but which, if allowed to stand without being corrected, may prejudice a substantial right. Under long-established practice such happenings are not necessarily fatal to the whole case but may be effectively cured by the court under a proper charge to the jury. This, we believe, is indubitably such a case.

According to the record, the People introduced evidence showing the presence of many bloodstains inside the defendant’s automobile. In the course of his summation the Monroe County District Attorney commented on this proof saying in substance that the presence of such bloodstains could be explained by “ nobody in the wide world with one exception ” which, it is said, might be taken by the jury as an unwarranted reference to defendant’s failure to testify in his own behalf with consequent prejudice to a substantial right (Code Grim. Pro., § 393).

At another point, while narrating the sequence of proven events connecting the defendant with the crime, the District Attorney spent some time in detailing the circumstance of the finding of the victim’s body in the Genesee River, and the difficulty experienced by the authorities in establishing identity. In this connection the testimony of Sheriff Skinner, a witness for the People, was discussed. He had testified, in substance, that when he went to defendant’s home in Buffalo and asked him to go to Rochester — and this at a time before the defendant had been accused of any crime and before his arrest — for the purpose of aiding in the identification of the woman’s body found in the Genesee River and believed to be defendant’s wife, the defendant had refused saying: I stand on my Constitutional rights.” All of this evidence had been received without objection and was in the case for all purposes. It is in connection with such proof that the District Attorney is now said to have commented unfairly and to defendant’s prejudice, when he said:1 ‘ By what ruse this defendant brought her down here [that is to the river] you’ll never know, nor I’ll never know, not as long as he stands on his constitutional rights, so-called ”.

When viewed in the light of the whole record and the whole summation, we cannot say that these comments by the District Attorney so exceeded the bounds of fair comment as to injure and prejudice the defendant before the jury in a substantial right. We are persuaded to this view by the circumstance that the trial court in his charge expressly instructed the jury to consider the statements and arguments of counsel on either side only when they are based upon the evidence ” and admonished them to “ disregard any statement, comment or argument which is not supported by the evidence.” To make doubly sure that the jury would draw no unfavorable inference, if indeed it were at all possible, he expressly instructed them as follows: ‘ ‘ The defendant in this case, as you have observed, did not take the stand in his own behalf. Under the law of this State he has a perfect right so to do. He may testify in his own behalf but he is not obliged to do so if he does not choose to do so. The law in this State expressly provides that his neglect or refusal to so testify does not create any presumption against him:” The possible unfavorable effect resulting from the District Attorney’s comment during summation, if indeed any existed, must be deemed to have been cured and corrected by this charge (People v. Priori, 164 N. Y. 459), particularly when the proof clearly points to defendant’s guilt (People v. Gillette, 191 N. Y. 107), which principle has been reiterated in People v. Watson (216 N. Y. 565), and may well be regarded as firmly imbedded in our criminal practice. The case of People v. Minkowitz (220 N. Y. 399), relied on by a majority, is not to the contrary, for there the court failed, on request of defendant’s counsel, to direct the jury to disregard comments made by the District Attorney during his summation on behalf of the People that the defendant had failed to take the stand. In People v. Forte (277 N. Y. 440, 441-442), the court specifically charged that while the jury might not draw any unfavorable inference because of defendant’s failure to testify it was “ warranted in taking the facts and circumstances established in the case, which, if he were innocent, he might have controverted or explained, most strongly against him.” While that was not a capital case it nonetheless illustrates that the rule relating to the inference to be drawn from the failure of a defendant to take the stand in a civil case may not be transposed for use against an accused in a criminal case by the court’s charge. The very recent ease of People v. Leavitt (301 N. Y. 113), among other issues dealt with the extremely inconclusive nature of the circumstantial proof as well as other trial errors warranting reversal. In addition, we also note that the trial court over defendant’s objection and request, did not advise the jury that the defendant’s failure to take the stand in his own behalf would not create any presumption against him, an omission which could not very well be overlooked in the circumstance of that case (Code Crim. Pro., § 393).

In the light of these authorities any unfavorable presumption arising from the District Attorney’s remarks — if deemed to have exceeded the bounds of fair comment — must be regarded as having been effectively cured by the subsequent charge to the jury — and had no effect on the verdict — which, as we all agree, is amply supported by the evidence.

We turn now to a consideration of the language used by the District Attorney in commenting on defendant’s frequent and successive changes in his religious affiliations when he said: “ and it shows the character of the man and the character of the man is important in your determinations as to whether he would have committed the crime which has been charged against him.” A majority regard this as an attack on the defendant’s character which was not an issue in the case, and thus injured him in a substantial right.

We cannot accept such view. Inept words by counsel during summation, whether carelessly or deliberately spoken, should not be used to set aside a verdict unless it appears that the verdict depended thereon. Here the verdict, as we have said in the prevailing opinion, has ample warrant ” in the evidence. In fact, no other verdict could very well have been found under any reasonable view of the evidence. In this state of the record it cannot very well be said that the verdict was in any way dependent on the remarks complained of. If the overwhelming evidence in this case is not enough to overcome the alleged unfavorable presumption, further answer is to be found in the record.

Throughout the trial of this case the defendant’s religious peregrinations were inextricably intertwined in the proof. The defense counsel examined prospective jurors in respect to it. In his opening statement he admonished the jurors to remember that the defendant was being tried for murder in the first degree and not ‘1 for having been a Catholic priest or for having been a Greek Orthodox priest or for having been a Methodist minister or for having been an Episcopalian minister * * *. You must remember this man is charged with murder, not with leaving one faith and joining another. * * * 1 Will you look to it to see that the People sustain the burden of proving not the change of religion, but murder in the first degree.’ ”

When proof of defendant’s religious background was offered by the People not a single objection was made to the evidence that the defendant, a native of Hungary, had been ordained a Roman Catholic priest and had performed ecclesiastical duties in the Roman Catholic Church in both this country and Canada for several years, when he renounced his vows in order to marry the victim herein and then by successive stages changed his religious affiliations finally serving as a probationary assistant in the Episcopal Diocese of Western New York. The. defense counsel, during his summation to the jury, commented at length and exhaustively on this phase of defendant’s life — not that such evidence was improperly admitted, but that it had no probative value in determining the issue of defendant’s guilt. The jury thus heard defense counsel make repeated reference to defendant’s religious affiliations from the beginning to the end of this long trial (April 25, 1951, to May 12, 1951).

We must bear in mind that the alleged harmful comment by the District Attorney came in the course of a long and detailed summation and had reference to a phase of the defendant’s prior religious life, that had little, if any, bearing on the issue being tried and which no reasonable person could possibly interpret as indicating a propensity and tendency to commit the crime of which he was charged. We must give the jury credit for being persons of common sense and not totally devoid of reasoning power. The character rule is designed to assure that the accused will stand before the jury unblemished by his past — particularly free from any showing that he is guilty of any crime, in a legal sense, other than the one with which he is charged, or that his past conduct is such as to indicate a propensity to commit the crime charged and furnish an excuse therefor.

An analysis of the leading cases in which the character rule has been applied all point to the conclusion that the prejudice constituting reversible error arises when testimony is received in evidence which tends to establish the commission of a crime other than the one with which the accused is charged (People v. Zackowitz, 254 N. Y. 192; People v. Richardson, 222 N. Y. 103; People v. Thompson, 212 N. Y. 249; People v. McLaughlin, 150 N. Y. 365; People v. Mullens, 292 N. Y. 408; People v. Nuzzo, 294 N. Y. 227).

In the Zackowitz case (supra) proof was adduced showing that the defendant was guilty of another crime for which he was not charged, viz., unlawful possession of two pistols concededly not used in connection with the homicide for which he was being tried, admission of which was deemed by this court as an endeavor to generate an atmosphere of professional criminality.

Much the same situation existed in People v. Mullens (supra, p. 418), where proof, if credited by the jury, indicated commission of a crime not charged, which we viewed as without “ any probative force save as thereby it was implied that the defendants were men whose experience had predisposed them to the commission of offenses of the sort for which they were on trial. Since these numerous extraneous crimes were allowed to be taken into account, we must conclude that the jury were influenced thereby ’ ’.

Another recent case is that of People v. Nuzzo (supra), where again proof of other acts criminal in nature, unrelated to the offense charged, was received over objection, which on appeal was deemed error.

Under the authorities it seems quite clear that the reference to character which is condemned arises when testimony of nonrelated criminal acts is received over objection and which, if credited by the jury, would lead them to believe that the accused had a tendency to commit the crime charged. In other words, that he had a bad character which could be taken as accounting for the commission of the crime for which he was being tried.

Here the proof relates not to other criminal conduct but to the defendant’s religious background, a matter having nothing whatsoever to do with the crime of which he was charged. It was in the case because it could not very well be ignored. The inept language by the District Attorney was certainly not evidence and when analyzed in the setting in which it was spoken and in the light of all the proof it hardly seems possible that the jury could have regarded it as other than fair comment. A jury must be deemed possessed of the intelligence of the average man and we believe that the jury here brought -in their verdict because the proof was overwhelming that the defendant committed the crime of which he was charged, and not because of any comment made by the District Attorney during his summation. We believe it reasonable to suppose that the defense counsel and the trial court were of the same view at the time since no objections were taken to such remarks and no requests were made of the court to instruct the jury respecting them. While under our practice the review of a capital case does not depend on noted objections and exceptions, nonetheless it is significant that the defense counsel at the trial made no complaint that such language was prejudicial, while at the same time he devoted several pages of the record to the making of requests to charge relating to other items, some of which were granted and some of which were refused, which rulings, we all agree on this appeal, were properly made. When the comments of the District Attorney are viewed in the light of the whole record and this case is compared with the pattern heretofore followed in other cases, we should regard the alleged prejudice as insubstantial and we should affirm the judgment of conviction herein without regard to any possible technical invalidity under the provisions of section 542 of the Code of Criminal Procedure.

Lewis, Conway and Fboessel, JJ., concur with Loughean, Ch. J.; Dye, J., dissents in opinion in which Desmond, J., concurs ; Fttld, J., dissents and votes to affirm under the provisions of section 542 of the Code of Criminal Procedure.

Judgment of conviction reversed, etc.


author: Dye, J. Fuld, J.

text:
    Marion L. Van Valkenburgh, Plaintiff, and Joseph D. Van Valkenburgh, Appellant, v. Mary Lutz, Individually and as Executrix of William Lutz, Deceased, Respondent.
    Argued January 10, 1952;
    decided April 23, 1952.

      John F. Loonam for appellant.
    I. William Lutz and anyone claiming under him could never obtain title to the land because, as a matter of law, the alleged occupancy by William Lutz was not sufficient ever to ripen into title by adverse possession. (Monnot v. Murphy, 207 N. Y. 240; Belotti v. Bickhardt, 228 N. Y. 296; Ramapo Mfg. Co. v. Mapes, 216 N. Y. 362; Pope v. Hanmer, 74 N. Y. 240; La Frombois v. Jackson, 8 Cow. 589; Arents v. Long Island R. R. Co., 89 Hun 126, 156 N. Y. 1; St. William’s Church v. People, 296 N. Y. 861; Mission of Immaculate Virgin v. Cronin, 143 N. Y. 524; De Lancey v. Piepgras, 138 N. Y. 26; Jackson v. Schoonmaker, 2 Johns. 230. II. Even if Lutz or those claiming under him had fulfilled every requirement necessary to create a title in them by adverse possession, the fact that title remains in appellant is res judicata. (Parsons v. Johnson, 68 N. Y. 62; Northern Pacific Railway v. Slaght, 205 U. S. 122; United States v. California & Ore. Land Co., 192 U. S. 355; Southern Pacific Railr’d. v. United States, 168 U. S. 1; Cromwell v. County of Sac, 94 U. S. 351; Pray v. Hegemen, 98 N. Y. 351; Hines v. Hearn, 232 App. Div. 210; Black v. State of New York, 195 Misc. 484.) III. William Lutz, or anyone claiming from, through, or under him is estopped from claiming any estate greater than an easement in three of these four lots. (Grissler v. Powers, 53 How. Prac. 194; Ward v. Davega City Radio, 163 Misc. 335; Hartmann v. Time, Inc., 166 F. 2d 127; Furman v. Furman, 287 N. Y. 772; Matter of New York State Labor Relations Bd. v. Holland Laundry, 294 N. Y. 480.)

      Thomas P. Mesick for respondent.
    I. Adverse possession has been established factually and legally. (Belotti v. Bickhardt, 228 N. Y. 296; La Frombois v. Jackson, 8 Cow. 589; Crary v. Goodman, 22 N. Y. 170; Barnes v. Light, 116 N. Y. 34; Monnot v. Murphy, 207 N. Y. 240; Sherman v. Kane, 86 N. Y. 57; Baker v. Oakwood, 123 N. Y. 16.) II. There can be no estoppel.
   Dye, J.

These consolidated actions were brought to compel the removal of certain encroachments upon plaintiffs’ lands, for delivery of possession and incidental relief. The subject property consists of four unimproved building lots designated as 19, 20, 21 and 22 in block 54 on the official tax map of the city of Yonkers, N. Y. These lots together form a parcel somewhat triangular in shape with dimensions of approximately 150 by 126 by 170 feet fronting on Gibson Place, a street to be laid out within the subdivision running in a northeasterly direction from Leroy Avenue and now surfaced for automobile travel as far as lots 26, 27 and 28. The subject premises were purchased by the plaintiffs from the city of Yonkers by deed dated April 14, 1947. At that time the defendants were, and had been since 1912, owners of premises designated as lots 14 and 15 in block 54, as shown on the same map. The defendants’ lots front on Leroy Avenue and adjoin lot 19 owned by the plaintiffs at the rear boundary line. All of these lots, though differently numbered, appear on a map of the subdivision of the Murray Estate opened prior to 1912 and numbering 479 lots. At that time that part of the Murray subdivision was covered with a natural wild growth of brush and small trees.

The defendants interposed an answer denying generally the allegations of the complaint and alleging as an affirmative defense, and as a counterclaim, that William Lutz had acquired title to the subject premises by virtue of having held and possessed the same adversely to plaintiffs and predecessors for upwards of thirty years.

The issue thus joined was tried before Hon. Frederick P. Close, Official Referee, who found that title to said lots 11 was perfected in William Lutz by virtue of adverse possession by the year 1935 ” and not thereafter disseized. The judgment entered thereon in favor of the defendants was affirmed in the Appellate Division, Second Department, without opinion, one Justice dissenting on the ground that the evidence was insufficient to establish title by adverse possession.

To acquire title to real property by adverse possession not founded upon a written instrument, it must be shown by clear and convincing proof that for at least fifteen years (formerly twenty years) there was -an “ actual ” occupation under a claim of title, for it is only the premises so actually occupied ‘1 and no others ” that are deemed to have been held adversely (Civ. Prac. Act, §§ 34, 38, 39). The essential elements of proof being either that the premises (1) are protected by a substantial inclosure, or are (2) usually cultivated or improved (Civ. Prac. Act, § 40).

Concededly, there is no proof here that the subject premises were protected by a substantial inclosure ” which leaves for consideration only whether there is evidence showing that the premises were cultivated or improved sufficiently to satisfy the statute.

We think not. The proof concededly fails to show that the cultivation incident to the garden utilized the whole of the premises claimed. Such lack may not be supplied by inference on the showing that the cultivation of a smaller area, whose boundaries are neither defined nor its location fixed with certainty, 1 ‘ must have been * * * substantial ’ ’ as several neighbors were “ supplied * * * with vegetables ”. This introduces an element of speculation and surmise which may not be considered since the statute clearly limits the premises adversely held to those actually ” occupied and no others ” (Civ. Prac. Act, § 39) which we have recently interpreted as requiring definition by clear and positive proof (St. William’s Church v. People, 296 N. Y. 861, revg. 269 App. Div. 874, motion for reargument denied 296 N. Y. 1000).

Furthermore, on this record, the proof fails to show that the premises were improved (Civ. Prac. Act, § 40). According to the proof the small shed or shack (about 5 by 10% feet) which, as shown by survey map, was located on the subject premises about 14 feet from the Lutz boundary line. This was built in about the year 1923 and, as Lutz himself testified, he knew at the time it was not on his land and, his wife, a defendant here, also testified to the same effect.

The statute requires as an essential element of proof, recognized as fundamental on the concept of adversity since ancient times, that the occupation of premises be “ under a claim of title ” (Civ. Prac. Act, § 39), in other words, hostile (Belotti v. Bickhardt, 228 N. Y. 296), and when lacking will not operate to bar the legal title (Doherty v. Matsell, 119 N. Y. 646), no matter how long the occupation may have continued (La Frombois v. Jackson, 8 Cow. 589; Colvin v. Burnet, 17 Wend. 564).

Similarly, the garage encroachment, extending a few inches over the boundary line, fails to supply proof of occupation by improvement. Lutz himself testified that when he built the garage he had no survey and thought he was getting it on his own property, which certainly falls short of establishing that he did it under a claim of title hostile to the true owner- The other acts committed by Lutz over the years, such as placing a portable chicken coop on the premises which he moved about, the cutting of brush and some of the trees, and the littering of the property with odds and ends of salvaged building materials, cast-off items of house furnishings and parts of automobiles which the defendants and their witnesses described as personal belongings ”, junk rubbish ” and “ debris ”, were acts which under no stretch of the imagination could be deemed an occupation by improvement within the meaning of the statute, and which, of course, are of no avail in establishing adverse possession.

We are also persuaded that the defendant’s subsequent words and conduct confirms the view that his occupation was not “ under a claim of title ”. When the defendant had the opportunity to declare his hostility and assert his rights against the true owner, he voluntarily chose to concede that the plaintiff's ’ legal title conferred actual ownership entitling them to the possession of these and other premises in order to provide a basis for establishing defendant’s right to an easement by adverse possession — the use of a well-defined “ traveled way ” that crossed the said premises. In that action (Lutz v. Van Valkenburgh, 274 App. Div. 813), William Lutz, a defendant here (now deceased), chose to litigate the issue of title and possession and, having succeeded in establishing his claim of easement by adverse possession, he may not now disavow the effect of his favorable judgment (Goebel v. Iffla, 111 N. Y. 170), or prevent its use as evidence to show his prior intent. Declarations against interest made by a prescriptive tenant are always available on the issue of his intent (6 Wigmore on Evidence, § 1778).

On this record we do not reach the question of disseisin by oral disclaimer, since the proof fails to establish actual occupation for such time or in such manner as to establish title. What we are saying is that the proof fails to establish actual occupation for such a time or in such a manner as to establish title hy adverse possession (Civ. Prac. Act, §§ 39, 40; St. William’s Church v. People, supra).

The judgments should be reversed, the counterclaim dismissed and judgment directed to be entered in favor of plaintiff Joseph D. Van Valkenburgh for the relief prayed for in the complaint subject to the existing easement (Lutz v. Van Valkenburg, 274 App. Div. 813), with costs in all courts.

Fuld, J.

(dissenting). In my judgment, the weight of evidence lies with the determination made by the court at Special Term and affirmed by the Appellate Division. But whether that is so or not, there can bé no doubt whatsoever that the record contains some evidence that the premises here involved were occupied by William Lutz, defendant’s late husband, for fifteen years under a claim of title — and that, of course, should compel an affirmance.

The four lots in suit, located in the city of Yonkers, comprise a fairly level parcel of land, triangular in shape, with approximate dimensions of 150 by 126 by 170 feet. It is bounded on the north by a “ traveled way ”, on the west and south by Gibson Place, an unopened street, and on the southeast by a vacant lot. Immediately to the east of the parcel, the land descends sharply to Leroy Avenue, forming a steep hill; on the hill are situated two lots, purchased by Lutz in 1912, upon which his family’s home has stood for over thirty years.

Wild and overgrown when the Lutzes first moved into the neighborhood, the property was cleared by defendant’s husband and had been, by 1916, the referee found, developed into a truck farm of substantial size ”, Lutz, together with his children, worked the farm continuously until his death in 1948; indeed, after 1928, he had no other employment. Each year, a new crop was planted and the harvest of vegetables was sold to neighbors. Lutz also raised chickens on the premises, and constructed coops or sheds for them. Fruit trees were planted, and timber was cut from that portion of the property not used for the farm. On one of the lots, Lutz in 1920 built a one-room dwelling, in which his brother Charles has lived ever since.

Although disputing the referee’s finding that the dimensions of Lutz’s farm were substantial, the court’s opinion fails to remark the plentiful evidence in support thereof. For instance, there is credible testimony in the record that nearly all ” of the property comprised by the four lots was cultivated during the period to which the referee’s finding relates. A survey introduced in evidence indicates the very considerable extent to which the property was cultivated in 1950, and many witnesses testified that the farm was no larger at that time than it had ever been. There is evidence, moreover, that the cultivated area extended from the “ traveled way ” on one side of the property to a row of logs and brush — placed by Lutz for the express purpose of marking the farm’s boundary — at the opposite end of the premises.

According to defendant’s testimony, she and her husband, knowing that they did not have record title to the premises, intended from the first nevertheless to occupy the property as their own- Bearing this out is the fact that Lutz put down the row of logs and brush, which was over 100 feet in length, to mark the southwestern boundary of his farm; this marker, only roughly approximating the lot lines, extended beyond them into the bed of Gibson Place. The property was, moreover, known in the neighborhood as “ Mr. Lutz’s gardens ”, and the one-room dwelling on it as “ Charlie’s house the evidence clearly indicates that people living in the vicinity believed the property to be owned by Lutz. And it is undisputed that for upwards of thirty-five years — until 1947, when plaintiffs became the record owners — no other person ever asserted title to the parcel.

With evidence such as that in the record, I am at a loss to understand how this court can say that support is lacking for the finding that the premises had been occupied by Lutz under a claim of title. The referee was fully justified in concluding that the character of Lutz’s possession was akin to that of a true owner and indicated, more dramatically and effectively than could words, an intent to claim the property as his own. Recognizing that “ A claim of title may be made by acts alone, quite as effectively as by the most emphatic assertions ” (Barnes v. Light, 116 N. Y. 34, 39), we have often sustained findings based on evidence of actual occupation and improvement of the property in the manner that “ owners are accustomed to possess and improve their estates ”. (La Frombois v. Jackson, 8 Cow. 589, 603; see, also, Belotti v. Bickhardt, 228 N. Y. 296, 302; Monnot v. Murphy, 207 N. Y. 240, 244-245; Barnes v. Light, supra, 116 N. Y. 34, 39; Abeel v. Van Gelder, 36 N. Y. 513, 515; Smith v. Egan, 225 App. Div. 586; see, also, McCue v. Carlton, 399 Ill. 11, 16-17; Rude v. Marshall, 54 Mont. 27, 31-32; 4 Tiffany, Real Property [3d ed., 1939], § 1148.) That Lutz knew that he did not have the record title to the property — a circumstance relied upon by the court — is of no consequence, so long as he intended, notwithstanding that fact, to acquire and use the property as his own. As we stated in Ramapo Mfg. Co. v. Mapes (216 N. Y. 362, 370-371), “ the bona fides of the claim of the occupant is not essential and it will not excuse the negligence of the owner in forbearing to bring his action until after the time in the Statute of Limitations shall have run against him to show that the defendant knew all along that he was in the wrong. (Humbert v. Rector, etc., of Trinity Church, 24 Wend. 587.)"

Quite obviously, the fact that Lutz alleged in the 1947 easement action — twelve years after title had, according to the referee, vested in him through adverse possession — that one of the plaintiffs was the owner of three of the lots, simply constituted evidence pointing the other way, to be weighed with the other proof by the courts below. While it is true that a disclaimer of title by the occupant of property, made before the statutory period has run, indelibly stamps his possession as non-adverse and prevents title from vesting in him (see, eg., De Lancey v. Hawkins, 23 App. Div. 8, affd. 163 N. Y. 587; Luce v. Carley, 24 Wend. 451; Colvin v. Burnet, 17 Wend. 564, 569; Bissell v. Georger, 122 Misc. 301; see, also, Rung v. Shoneberger, 2 Watts [Pa.] 23; Smith v. Vermont Marble Co., 99 Vt. 384), a disclaimer made after the statute has run carries with it totally different legal consequences. -Once title has vested by virtue of adverse possession, it is elementary that it may be divested, not by an oral disclaimer, but only by a transfer complying with the formalities prescribed by law. (See Baker v. Oakwood, 123 N. Y. 16; Sherman v. Kane, 86 N. Y. 57; see, also, Strong v. Baldwin, 154 Cal. 150; Johnston v. Masterson, 397 Ill. 168; Lamoreaux v. Creveling, 103 Mich. 501; 4 Tiffany, op. cit., §§ 1171, 1172.) Hence, an oral acknowledgment of title in another, made after the statutory period is alleged to have run, “ is only evidence tending to show the character of the previous possession.” (Smith v. Vermont Marble Co., supra, 99 Vt. 384, 394; see, also, Lowe v. Cox, 210 Ark. 169; Carroll v. Rabberman, 240 Ill. 450; Rennert v. Shirk, 163 Ind. 542; Maloney v. Bedford, 290 Ky. 647; Church v. Burghardt, 25 Mass. 327; Todd v. Weed, 84 Minn. 4; Meier v. Meier, 105 Mo. 411; Harjo v. Mathis, 170 Okla. 523; Weed v. Keenan, 60 Vt. 74.) Here, Official Eeferee Close, of the opinion that the 1947 admission was made by Lutz under the erroneous advice of his attorney (cf. Shirey v. Whitlow, 80 Ark. 444, 446-447), chose to rest his decision rather on evidence of Lutz’s numerous and continual acts of dominion over the property — proof of a most persuasive character. Even if we were to feel that the referee was mistaken in so weighing the evidence, we would be powerless to change the determination, where, as we have seen, there is some evidence in the record to support his conclusion.

In view of the extensive cultivation of the parcel in suit, there is no substance to the argument that the requirements of sections 39 and 40 of the Civil Practice Act were not met. Under those provisions, only the premises “ actually occupied ” in the manner prescribed— that is, “ protected by a substantial inclosure ” or “ usually cultivated or improved ” — are deemed to have been held adversely. The object of the statute, we have recognized, “ is that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim and be thereby called upon to assert his legal title.” (Monnot v. Murphy, supra, 207 N. Y. 240, 245; see, also, Trustees of Town of East Hampton v. Kirk, 84 N. Y. 215, 220.) Since the character of the acts sufficient to afford such notice depends upon the nature and situation of the property and the uses to which it can be applied ”, it is settled that the provisions of sections 39 and 40 are to be construed, not in a narrow or technical sense, but with reference to the nature, character, condition, and location of the property under consideration. (See Ramapo Mfg. Co. v. Mapes, supra, 216 N. Y. 362, 372, 373; see, also, Arnold v. New York, W. & B. R. Co., 173 App. Div. 764; Koch v. Ellwood, 138 App. Div. 584; Shinnecock Hills & Peconic Bay Realty Co. v. Aldrich, 132 App. Div. 118, affd. 200 N. Y. 533.)

Judge Dye considers it significant that the proof “ fails to show that the cultivation incident to the garden utilized the whole of the premises claimed ” (opinion, p. 98). There surely is no requirement in either statute or decision that proof of adverse possession depends upon cultivation of “ the whole ” plot or of every foot of the property in question. And, indeed, the statute — which, as noted, reads “usually cultivated or improved ” — has been construed to mean only that the claimant’s occupation must consist of acts such as are usual in the ordinary cultivation and improvement of similar lands by thrifty owners.” (Ramapo Mfg. Co. v. Mapes, supra, 216 N. Y. 362, 373.) The evidence demonstrates that by far the greater part of the four lots was regularly and continuously used for farming, and, that being so, the fact that a portion of the property was not cleared should not affect the claimant’s ability to acquire title by adverse possession: any frugal person, owning and occupying lands similar to those here involved, would have permitted, as Lutz did, .some of the trees to stand — while clearing the bulk of the property — in order to provide a source of lumber and other tree products for his usual needs. The portion of the property held subservient to the part actively cultivated is as much ‘ occupied ’ ’ as the portion actually tilled. The nature of the cultivation engaged in by Lutz was more than adequate, as his neighbors’ testimony establishes, to give the owner notice of an adverse claim and to delimit the property to which the claim related. The limits of the parcel in suit were indicated in a general way by boundaries natural as well as man-made: the declivity to Leroy Avenue, the “ traveled way ”, and Gibson Place. Apart from that, however, the evidence discloses that the bulk of each of the four lots was cultivated, and — even putting to one side the fact that the cottage, called Charlie’s house ”, had been actually occupied and lived in for upwards of thirty years — such substantial use was enough to put the owner on notice that his whole lot was claimed.

In short, there is ample evidence to sustain the finding that William Lutz actually occupied the property in suit for over fifteen years under a claim of title. Since, then, title vested in Lutz by 1935, the judgment must be affirmed. To rule otherwise, on the ground that the weight of evidence is against that finding — a view which I do not, in any event, hold — is to ignore the constitutional provision that limits our jurisdiction to the review of questions of law (N. Y. Const., art. VI, § 7; see, also, Civ. Prac. Act, § 605).

I would affirm the judgment reached by both of the courts below.

Lewis, Conway and Froessel, JJ., concur with Dye, J.; Fuld, J., dissents in opinion in which Lotjghran, Ch. J., and Desmond, J., concur.

Judgments reversed, etc. [See 304 N. Y. 590.]