author: Finch, J.

text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for Opening and Extending West Tenth and Other Streets, from Surf Avenue to the Public Beach, in the Borough of Brooklyn. West Tenth Street Realty Corporation et al., Appellants.

      (Argued March 15, 1935;
    decided April 17, 1935.)

      Charles Lamb and Joseph Gazzam for Charles L. Feltman et al., appellants.

      Andrew F. Van Thun, Jr., and Frank A. Kister for West Tenth Street Realty Corporation, appellant.

      Paul Windels, Corporation Counsel (Joseph F. Mulqueen, Jr., Anson Getman and George S. Parsons of counsel), for respondent.
   Finch, J.

The appellant West Tenth Street Realty Corporation was the owner, in fee simple, of a so-called private road adjoining premises owned by it. This so-called private road was bounded on the north by an avenue and on the south by the ocean. Adjoining it on the east was said West Tenth Street Corporation property. Its title was incumbered by easements, rights and privileges arising out of a recorded agreement in writing, entered into between the grantor of this appellant and the other appellants, Charles L. and Albert Feltman. The appellants Feltman were the owners of the lands and improvements which abuttéd this strip on the west. They were also the grantees of said easements including the right to use of the land as a private way or street. The easements owned by the appellants Feltman, in addition to the right of way, were the right to maintain an electric light sign across the roadway, with the consent of the West Tenth Street Corporation; the right to store automobiles or other pleasure vehicles of their visitors, customers and patrons on half of the roadway; the right to lease space for the storage of automobiles and for the maintenance of a cab booth, and the right to lease privileges within the half of the roadway north of the inside line of the public beach, with the consent of the West Tenth Street Corporation. The West Tenth Street Corporation, as the fee owner of the strip, subject to the easements, rights and privileges, had similar rights in the strip to those possessed by the Feltmans and also other rights not granted to the Feltmans or to the city. The Sea Beach Land Company, the grantor to the West Tenth Street Corporation, reserved to itself the right to lay and maintain .a salt water main in West Tenth Street, from Surf Avenue to the Atlantic Ocean.” Also the City of New York had the right “ to maintain and operate sewer, fresh water and high pressure salt water mains, hydrants and any other public utilities that are now on or in the above described premises.”

The street, title to which was acquired in this proceeding, is of the same width as, and its easterly and westerly lines are coterminous with, the similar lines in the agreement between the Sea Beach Land Company and the Feltmans. The title acquired by the city in-this proceeding is that specified in the Greater New York Charter (L. 1901, ch. 466, § 976, as amd.), that is, “in trust, that the same be appropriated and kept open for, or as part of a public street, forever, in like manner as the other streets in the city are and of right ought to be.”

In the final decree an award of $55,963 was made to the appellant West Tenth Street Realty Corporation. It was made up as follows:

Land in West Tenth street, subject to easements............................... $2,763 00

Improvements; soda water stand.......... 1,200 00

Right to maintain soda water stand....... 6,000 00

Right to store automobiles or other pleasure vehicles, lease space for automobiles or cabs, and to maintain an automobile and cab booth............................ 40,000 00

Right to maintain electric light signs across roadway, with consent of other party.... 2,500 00

Right to lease privileges within the half of the roadway north of the inshore line of the public beach, with consent of other party. 3,500 00

Total.............................. $55,963 00

Likewise an award of $52,000 was made to the appellants Feltman, apportioned as follows:

Right to maintain electric light sign across roadway with the consent of other party. $2,500 00

Right to store automobiles or other pleasure vehicles, lease space for automobiles or cabs and to maintain a cab booth....... 40,000 00

Right to lease privileges within half of the roadway north of the inshore line of the public beach, with the consent of the other party........................... 3,500 00

Value of encroachments and cost and expense in connection with the removal of encroachments..................... 6,000 00

Total.............................. $52,000 00

The appellant West Tenth Street Corporation urges that the strip of land owned by it, subject to the Feltman easements, should have been valued in condemnation as free of the easements, on the ground that the agreement creating the easements, although providing nominally for rights in perpetuity, actually creates an estate in fee on limitation, to endure so long as the land remains a private road, and that the taking thereof by the city for street purposes is an act which calls the limitation into effect. Failing in this claim, the West Tenth Street Corporation urges that the strip should be valued as free from the easements-and from that sum the value of the easements, rights and privileges granted to the Feltmans, and reserved to the Sea Beach Land Company and to the city should be deducted.

A complete answer to the contention first advanced is that the agreement with the Feltmans granting them easements, rights and privileges, does not contain any language of limitation but, on the contrary, provides definitely and expressly that it is to operate in perpetuity. The method which the West Tenth Street Corporation claims is applicable in the event that it is found that the easements are not subject to a limitation, is contrary to the well-established principle that a person whose property is taken is entitled to be paid only the value of the property, considering it in its condition and situation at the time it is taken. (McGovern v. City of New York, 229 U. S. 363, affg. Matter of Simmons, 195 N. Y. 573; Boston Chamber of Commerce v. Boston, 217 U. S. 189; Matter of City of New York [Northern Blvd.], 258 N. Y. 136, 152; Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438.)

The application of the above principle works no hardship, since all that is involved is the change of a private street into a public street. Where the land of the parties heretofore faced a private street, it now looks out upon a public street. The appellant is entitled to be fully compensated for its loss but is not entitled to be paid more than the damages actually suffered.

The West Tenth Street Corporation also maintains that the agreement burdening the strip with easements, rights and privileges did not cover the entire strip owned by it and that there remains a portion of the fee unburdened with the agreement. It argues that although the agreement provided that the easements covered the land to the mean high-water line, a map attached to the agreement showed the position of the mean high-water line in 1911, the time the agreement was made, and that the line delineated on this map is a fixed boundary which limits and controls the extent of the area intended to be subject to the terms of the agreement. At the time of the condemnation there was a plot of land 1,992 square feet in area, lying between the high-water mark, as fixed by the map, and the physical northerly line of the public beach and boardwalk. It is this plot that the appellant claims is not within the lines of the survey annexed to the agreement and, therefore, not burdened with the easements created thereby.

A complete answer to this contention is that the agreement of 1911, granting easements, rights and privileges, did not relate merely to the high-water line then existing but to such fine wherever it might thereafter be located. This agreement expressly applied to the land running to high-water mark, as shown on the survey. If the contention of the appellant is correct, then the words “ to mean high water ” would be surplusage. If the intention of the parties had been as claimed by the West Tenth Street Corporation, then the parties would have run this fine by metes and bounds, as shown on the survey, and would not have run the fine to mean high-water mark. Furthermore, a fundamental canon of construction is that physical monuments when denominated in a deed shall prevail over those shown on a survey. This appellant was successful in maintaining its own title in the fee to high-water mark. (Matter of City of New York [West Tenth St. Realty Corp.], 256 N. Y. 222.) By the same token and description, this agreement covers the entire roadway in accordance with the expressed intention of the parties.

Taking up now the claim of the appellants Feltman, we find that the court at Special Term refused to allow any consequential damages to the Feltmans for the reduction in value of their land as a result of the taking of the easements, rights and privileges appurtenant thereto, Such consequential damages should have been allowed. (Flynn v. New York, W. & B. Ry. Co., 218 N. Y. 140; Matter of City of New York [Pier Old No. 49], 227 N. Y. 119; Matter of City of New York [Erie R. R. Co.], 193 N. Y. 117; Bohn v. Metropolitan Elev. Ry. Co., 129 N. Y. 576.)

For purposes of valuation an easement is to be considered as appurtenant to the dominant tenement. Together they constitute a single entity. In this case, the land of the Feltmans, used for a restaurant, was materially enhanced in value by the right to place a sign across the private roadway and to convenience its patrons by supplying them with immediate parking space. These easements have been valued as if they stood alone. The taking of these easements not only destroyed their value but it also took away from the dominant estate the added value which it had in consequence of the ownership of the easements. As was said by Mr. Justice Holmes (in United States v. Welch, 217 U. S. 333, at p. 339): “ The value of the easement cannot be ascertained without reference to the dominant estate to which it is attached.”

The award to the Feltmans was made on the basis of an erroneous theory, in that the easements, rights and privileges of the Feltmans in this strip were treated as easements in gross and no consideration was given to the effect of the taking as impairing the value of the land and improvements held by the Feltmans in the dominant estate. The Feltmans were entitled to have the dominant estate owned by them valued with the easements, rights and privileges as appurtenant thereto and then valued after the easements, rights and privileges had been taken and the public street substituted for the private way. The difference in the amount is the measure of the consequential damages suffered by the Feltmans and the amount which they are entitled to recover. (Flynn v. New York, W. & B. Ry. Co., 218 N. Y. 140; Matter of City of New York [Pier Old No. 49], 227 N. Y. 119; Matter of City of New York [Erie R. R. Co.], 193 N. Y. 117; Bohm v. Metropolitan Elev. Ry. Co., 129 N. Y. 576.)

It follows that the orders, in so far as they deny consequential damages to the appellants Charles L. and Alfred Feltman, should be reversed and a new trial granted, with costs to said appellants for the ascertainment of such damages. Otherwise the orders appealed from should be affirmed, without costs.

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

Ordered accordingly.


source: Caselaw Access Project

author: Hubbs, J.

license: Public Domain

text:
    City Bank Farmers Trust Company, Appellant, v. Ardlea Incorporation et al., Respondents, Impleaded with Others.

      (Argued March 20, 1935;
    decided April 17, 1935.)

      George S. Mittendorf and Milton R. Friedman for appellant.

      Herman C. Storck for respondents.
   Hubbs, J.

The primary question presented on this appeal is whether an independent collateral agreement to pay a part of the amount secured by a bond and real property mortgage executed and delivered more than six years after the date of the original bond and mortgage, is within the purview of section 1083-b of the Civil Practice Act. The collateral agreement was executed and delivered on September 1, 1932. The Civil Practice Act, section 1083-a, provides that deficiency judgments on foreclosure of real property mortgages shall be limited to an amount equal to the difference between the amount payable upon the judgment and prior hens and the fair market value of the property covered by the mortgage, the fair market value to be fixed by the court.

In this action to foreclose a real property mortgage, Richard Croker, Jr., the maker of a collateral bond for $50,000, was made a party defendant and judgment demanded against him for any deficiency which might result for an amount not to exceed the amount of his collateral bond. A deficiency existed after the sale of the property. The plaintiff moved for judgment against the maker of the original bond and against the defendant Croker on the collateral bond. The court found that the fair market value of the property covered by the mortgage exceeded the amount of the judgment and denied the motion for a deficiency judgment.

The plaintiff contends that section 1083-b has no application under the facts of this case as to the defendant Croker, as the collateral bond executed by him was executed long after the execution and delivery of the original bond and mortgage, and was not, therefore, a bond given to secure an indebtedness secured by a mortgage on real property and which originated simultaneously with such mortgage and which is secured solely by such mortgage.” (§ 1083-b.)

At the time section 1083-b was enacted it was deemed advisable by the Legislature to enact emergency legislation to reheve the strain on the real property market and to afford temporary relief to those indebted on bonds and real property mortgages. To accomplish that purpose, section 1077-a of the Civil Practice Act was passed, which suspended, during the period of the emergency specified in the act, the bringing of any actions to foreclose real property mortgages because of default in the payment of principal due on such mortgages. The new section 1077-b, passed at the same time, prevents the bringing of actions on bonds secured by real property mortgages because of default in payment of principal due on such bonds. If the indebtedness originated or was originally contracted for simultaneously with such mortgage and is secured solely by such mortgage, or upon any guarantee of payment ” of any such mortgage so long as an action to foreclose such mortgage is prevented by the provisions of section 1077-a, “ so long as interest at the rate prescribed shall be paid.”

The clear purpose of the Legislature was to prevent the foreclosure of real property mortgages for default in the payment of principal during the emergency period, also to prevent any actions on bonds given simultaneously with such mortgages and secured thereby and upon guaranties of payment of such mortgages or bonds given therewith.

Thus far the purpose of the Legislature seems clear. Did the Legislature intend, by the enactment of those sections, to limit their application to mortgages and bonds given therewith, or guaranties thereof? We think not. It seems to us that the Legislature had in mind and intended to prevent not only the foreclosure of such mortgages and actions on bonds given therewith and guaranties thereof, but also to prevent actions upon guaranties of such mortgages and bonds, executed and delivered after the date of the execution or delivery of the original bond and mortgage.

We find such intent expressed in that part of section 1077-b which reads: “ No action shall be maintainable or judgment be entered during such emergency upon any guarantee of payment of any share or part of any bond and/or mortgage * * * so long as interest at the rate prescribed shall be paid.”

That language indicates an intent on the part of the Legislature to extend the beneficial provisions of these sections not only to the original makers of mortgages, bonds and guarantors thereof, but also to any guaranty of such mortgages and bonds, even though executed and delivered subsequent to the execution and delivery of an original bond and mortgage.

Sections 1083-a and 1083-b were enacted at the same time as sections 1077-a and 1077-b and as part of the general purpose of affording relief to distressed debtors.

The sections must be read together, having in mind the purpose of the emergency legislation and the object which it was enacted to accomplish. When so read, they confirm the interpretation which we place upon section 1077-b. Section 1083-a prevents a deficiency judgment when the court finds that the fair market value of the premises covered by the mortgage equals or exceeds the amount specified in the judgment and prior liens. Section 1083-b affords the same protection, in actions against makers or guarantors of bonds, against any person or corporation directly or indirectly or contingently liable therefor.” That language as in section 1077-b indicates the legislative intent to differentiate between actions on the original mortgages, bonds and guaranties thereof and actions “ against any person or corporation directly or indirectly or contingently liable therefor.”

Those sections thus read afford protection not only to makers of original mortgages, bonds and guarantors thereof, but also to any party who is contingently liable as guarantor. Such we believe to have been the intention of the Legislature as expressed in the statutes and manifestly within the spirit and purpose of the enactments.

The conclusion which we have reached was indicated in the opinion of the present chief judge in the case of Klinke v. Samuels (264 N. Y. 144).

The appellant contends that in view of the fact that there was a marked discrepancy between the affidavits presented on the part of appellant and the affidavits presented on the part of the respondents as to the fair and reasonable market value of the property, a triable issue was presented which should have been tried before the court or a referee. Under the decision of this court in New York Life Ins. Co. v. Guttag Corp. (265 N. Y. 292) the position of appellant is correct, provided the appellant is in a position to avail itself of the alleged error. It does not contend that it was not served with the replying affidavits submitted on behalf of respondents, and it does not refer to any motion for a reference to determine the issue, although it was apprised, by the replying affidavits, of the very discrepancy as to value between its affidavits and those of respondents upon which it now relies. It served an affidavit in reply to those served by the respondent, but did not suggest that it was not willing to have the question determined upon affidavits. It apparently was content to rest its case upon the affidavits which it presented, without any demand for other opportunity to present proof or to interrogate the witnesses of its adversary, until the decision of the court, upon all the proof presented, had gone against its contention as to value. The appellant was under obligation to advise the court of its unwillingness to consent to a determination of the issue of fact upon the affidavits before the court and should not now be heard to complain that it has been denied relief for which it never, prior to determination of the issue, made a demand.

The order should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Crouch and Loughran, JJ., concur; Finch, J., not sitting.

Judgment affirmed.


author: Lehman, J. Crane, Ch. J.

text:
    Mary A. Galbraith, Respondent, v. Paul Busch et al., Appellants.

      (Argued March 15, 1935;
    decided April 1, 1935.)

      Everett F. Warrington and Herbert F. Hastings, Jr., for appellants.

      William A. Mulvey for respondent.
   Lehman, J.

The plaintiff was injured while a guest in an automobile owned by her daughter, the defendant Sarah M. Galbraith, and operated under her direction by the defendant Busch. The automobile suddenly swerved from the highway and crashed into a tree. The evidence fails to show any cause for the sudden swerve. The weather was clear, the highway was in good condition, and there was little traffic upon it. The trial judge ruled that the mere fact that the car left the highway under these circumstances raised a presumption of negligence on the part of the driver and that it was the duty of the defendants to go forward with their evidence and show why the car left the highway, why it rammed the tree, and that it did so without any fault or negligence upon the part of Busch.” The defendant failed to give such evidence. The cause of the accident remains undisclosed and unexplained. The question now presented is whether without such explanation the circumstances under which the accident occurred raised an inference or presumption that it was due to the negligence of the driver.

It may be conceded that the defendants, by reason of their control and management of the automobile, are in a better position to furnish an explanation of the cause of the accident than the plaintiff. Failure to give such explanation, it is said, is suspicious and requires the conclusion that their testimony would not be favorable to them. Certainly their silence is not suspicious if they were not called upon to speak and no inference unfavorable to them can be drawn from their silence if the plaintiff’s proof is insufficient to show any negligence on their part. In a negligence action the plaintiff always has the burden of showing failure by the defendant of some duty owing to the plaintiff. That burden can never be shifted to the defendant. Where the plaintiff’s evidence is sufficient to justify or require an inference of negligence, then failure of the defendant to rebut such inference by affirmative evidence may result in a judgment against the defendant. Where a defendant under such circumstances fails to produce relevant evidence within his control, inference may be permissible that such evidence would not be favorable to him. None the less the duty upon the defendant of going forward and producing evidence to rebut an inference or presumption of negligence cannot arise unless the evidence of the plaintiff justifies such inference or presumption. These general principles are firmly imbedded in our law. In their practical application the doctrine known as “ res ipso loquitur ” plays a part, but that doctrine can'be invoked only where, as the chief judge points out: “ The circumstances of the case unexplained justify the inference of negligence.”

The problem in each case is whether the circumstances unexplained do justify an inference of negligence. Ordinarily, circumstantial evidence is insufficient where the circumstances are consistent with freedom from wrong. In the administration of the law arbitrary rules cannot be substituted for logically probative evidence. The doctrine of res ipso loquitur is not an arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence. It requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant. To negative every possibility that the accident occurred in some extraordinary manner which would exculpate the defendant is often impossible. In the administration of the law we must be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible. We may be constrained to act upon incomplete evidence where complete evidence is impossible. Then the logical probative force of the evidence produced is measured, in part, by the test of whether it is the best evidence available. So where the instrumentality which produced an injury is within the exclusive possession and control of the person charged with negligence, and such person has exclusive knowledge of the care exercised in the control and management of that instrumentality, evidence of circumstances which show that the accident would not ordinarily have occurred without neglect of some duty owed to the plaintiff is sufficient to justify an inference of negligence and to shift the burden of explanation to the defendant. (Slater v. Barnes, 241 N. Y. 284. That doctrine (res ipso loquitur) has been applied here because the evidence shows that the automobile in which the plaintiff was a guest was in the exclusive possession and control of the defendant. The courts below in applying that doctrine have failed to consider whether the circumstances, though unexplained, show that ordinarily the accident would not have occurred without neglect of duty owed by the defendants or either of them to the plaintiff.

It is common knowledge that a sudden swerve of an automobile may be due to many causes. We may assume that an automobile nevertheless does not suddenly swerve under ordinary conditions where it is carefully operated and carefully maintained. We may assume further that here the evidence shows that at the time of the accident there were no extraordinary conditions in the road which would account for the accident, and that an inference would be justified that the cause must be found in the operation of the machine or in some defect in the automobile. We may even assume that these circumstances, unexplained, justify an inference that the automobile was not carefully operated or was not carefully maintained. If the defendants owed a duty to the plaintiff to exercise reasonable care both in the operation and maintenance or repair of the automobile, then the burden of explaining the cause of the accident and showing that it occurred without neglect of duty may, perhaps, logically and properly be shifted to the defendants. At least there are many decisions which point that way.

Here the plaintiff was only a guest in the car. She assumed the risk of any defect in the automobile which was not known to the defendants. They assumed the duty to exercise reasonable care for her protection in the operation of the automobile. They were under no duty to exercise care to discover and repair defects not known to them. (Higgins v. Mason, 255 N. Y. 104.) The evidence, though unexplained, cannot possibly lead to an inference that the accident was due to lack of care in the operation of the automobile, for the probability that it occurred from a break in its mechanism is at least equally great. All that the evidence shows is that the accident may have occurred from any one of many causes, including, perhaps, negligence in operation. If knowledge of the actual cause is confined to the defendants, then the plaintiff cannot prove any cause of action without calling them as witnesses. None the less, the plaintiff fails to make out a prima facie case without such proof and cannot place upon the defendants the burden of exculpating themselves from the charge of neglect of duty until evidence showing prima facie that there is such negligence has been presented.

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

Crane, Ch. J.

(dissenting). The plaintiff, Mary A. Galbraith, was injured in an automobile accident on the 27th day of May, 1932, and she has sued the driver of the car in which she was riding, Paul Busch, and the owner, Sarah M. Galbraith, her daughter, to recover damages for injuries. Paul Busch, the driver, and the owner of the car were sitting in the front seat; the plaintiff and her grandson were seated in the back seat.

The occupants were proceeding from Poughkeepsie to the Adirondaeks over the Albany Post Road. The place of the accident was about twelve miles north of Hudson, where the road consists of three strips of level concrete which, on the day in question, were perfectly dry. It was a clear morning, with little traffic on the highway. The car suddenly left the highway, tearing up twelve or more feet of fencing, crashed into a tree in an adjoining lot, a portion of which tree passed through the roof of the car. The speed at which it must have been going may be gathered from this incident.

Upon the trial of this case, after the proof of these facts, the defendant Sarah M. Galbraith did an unusual thing. She failed to call the driver, Paul Busch. Neither did she explain who or what he was. He did not testify himself, and the codefendant did not state any reason for not calling him nor show by any evidence that he could not be obtained as a witness. That he was her driver and, on the day of the occurrence, under her control and authority is self-evident. There is only one conclusion to be drawn from the failure of this defendant to call him or to account for his absence, and that is that his testimony would not be favorable to her side of the case.

We must bear in mind at all times, especially when we come to review the cases, that the defendant knew what caused this accident, or else could have told us, or the jury, that she did not know. Busch knew what caused the accident or else he did not know. Both these persons have kept their mouths closed tight and have refused to reveal either their knowledge or their ignorance. This is a circumstance, a very material circumstance, which raises presumptions in this case.

The judge charged the jury that the mere fact the car left the highway and hit the tree raised a presumption of negligence upon the part of the driver, standing alone and unexplained, and constitutes prima facie evidence of the negligence of Busch, and he said: It then became the duty of the defendant Busch and of Miss Galbraith to go forward with their evidence and show why the car left the highway, why it rammed the tree, and that it did so without any fault or negligence upon the part of Busch.” Again he said, Of course, speed alone is not the only reason an automobile may leave a highway. A bee, flying into a window of a car, alighting upon the driver’s face, and his frantic effort to get rid of the bee might result in a car trying to climb a telegraph pole, and there are many other reasons which suggest themselves to you as to how it might be that a car might leave the highway. Some part of the mechanism might go wrong. Busch was driving the car; presumably he knows why the automobile left the highway; he is silent; he does not tell us why it did, and so we come back to the presumption of negligence to which I have already referred.” And the judge later instructed the jury that it was for them to determine whether Busch was negligent, and if, on the other hand, you find that Busch was not negligent, * * * then your verdict will be for both defendants.”

I can find nothing wrong with this case. It proceeded according to law, all the authorities and the inferences which the human mind naturally draws from the circumstances, The words “ res ipso loquitur ” do not conceal a mystery. There is no doctrine or rule of law suggested or intimated by the words; neither is there any hard and fast principle embodied in their meaning. We use these words in the same way that we say in plain English, The circumstances of the case unexplained justify the inference of negligence.” Perhaps much confusion in legal thinking would be avoided if we used the English instead of the Latin terminology, for there seems to be a shying away from the Latin phrase as though it was a thing of danger, to be applied exceptionally. Not so. We apply it frequently in all manner of cases where facts and circumstances call upon others to speak, and they keep silent. This court said in Slater v. Barnes (241 N. Y. 284); That rule [res ipso loquitur] amongst other things is predicated upon the condition that the agency which has produced an injury is within the exclusive possession, control and oversight of the person charged with negligence whence, legitimately, flows the inference that if there is any explanation of the accident consistent with freedom from negligence, he ought to be able to give that explanation, and if he does not give it, a presumption arises against him. The reason for and common sense of this rule under such conditions is obvious. It frequently happens in the law that if a person fails to explain that of which apparently he has knowledge the presumption goes agahist him ” (p, 287).

Judge Pound, writing for the court in Plumb v. Richmond Light & Railroad Co. (233 N. Y. 285), says: “ Res ipso loquitur is a loose but much-used phrase of limited application which is a symbol for the rule that the fact of the occurrence of an injury and the surrounding circumstances may permit an inference of culpability on the part of the defendant, make out plaintiff’s prima fade case, and present a question of fact for the defendant to meet with an explanation. The term surrounding circumstances ’ in this connection refers not to circumstances directly tending to show lack of care in handling, such as excessive speed, lack of proper control of the car and the like, which tend in themselves to establish plaintiff’s case, but only to mere neutral circumstances of control and management by the defendant which may, when explained, appear to be entirely consistent with due care. Shifting the burden of explanation or of going on with the case does not shift the burden of proof. If a satisfactory explanation is offered by the defendant, the plaintiff must rebut it by evidence of negligence or lose his case. On the whole case there must be a preponderance of evidence in favor of plaintiff’s contention ” (p. 288).

The defendants here knowing the facts remain silent; they do not even say that the cause of the accident is unknown to them. This is not a case where negligence is presumed or liability predicated upon the mere happening of the accident, or the single fact that the car left the road. We have the circumstances and surroundings which make Busch’s action and the defendant’s attitude extremely suspicious, so that from their silence it may fairly be presumed that the cause of the accident was Busch’s negligence in operating the car. This evidence presented a question for the jury to determine, and they were justified in finding such negligence.

All the authorities, where similar facts existed, have ruled the same way. The first department of the Appellate Division, in Bennett v. Edward (239 App. Div. 157), had before it the case of an automobile suddenly, and for a reason unknown to the plaintiff, running into a ditch and turning over. The evidence at the trial afforded no explanation whatever as to the cause of the accident, and the court there said: “ We are of the opinion that, under the proof and circumstances, the burden rested upon the defendant to explain the cause of the accident and, if possible, to overcome the presumption of negligence which resulted from the occurrence of the accident. We think the court should have applied the doctrine of res ipso loquitur, and that error was committed in dismissing the complaint without requiring the defendant to go ahead with proof excusing the defendant from any negligence ” (p. 160). Justice Finch, now a judge in this court, concurred in this opinion.

The same rule, call it res ipso loquitur if you will, or the rule of reasonable inferences, has been followed in other jurisdictions where like facts have been involved. (Chaisson v. Williams, 130 Me. 341; Baker v. Baker, 220 Ala. 201; Nicol v. Geitler, 188 Minn. 69; Barger v. Chelpon, 60 S. D. 66; Knox v. Simmerman, 301 Penn. St. 1; Morris v. Morris, 84 Cal. App. 599; Queirolo v. Pacific G. & El. Co., 114 Cal. App. 610; Mackenzie v. Oakley, 94 N. J. L. 66; Masten v. Cousins, 216 Ill. App. 268; Scoll v. London & St. Katharine Docks Co., 3 H. & C. 596; McGowan v. Stott, 99 L. J. [K. B.] 357; Long v. McLaughlin, 3 Dom. L. R. 918 [New Brunswick, 1926].)

Cases which apparently hold the contrary doctrine have been those where the States require proof of gross negligence or reckless conduct, or else have dealt with facts where the defendant has called evidence to show and explain the non-negligent .cause of the accident; in other words, has overcome the presumption. (See Klein v. Beeten, 169 Wis. 385; Giddings v. Honan, 114 Conn. 473; Bobich v. Rogers, 258 Mich. 343; Riley v. Wooden, 310 Penn. St. 449.)

Professor Wigmore, in his work on Evidence (Yol. 5, § 2509, p. 498), in discussing the rule of “ res ipso loquitur,” says: “It may'be added that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.”

Again, Professor Harper, in his Law of Torts (§ 77, p. 183), says: The principle which the courts have developed in these cases is that when certain types of harms occur under circumstances which, from common experience, strongly suggest negligence and when the agency or instrumentality which occasioned the harm is under the exclusive control and management of the defendant so that he is in a better position to prove his innocence than the plaintiff is to prove his negligence, there exists a res ipso loquitur case.”

We have had of late an increasing number of negligence cases wherein the litigation is between the members of the family; mother suing daughter, as in this case, children the father, or wife the husband ■— actions which never would have been brought were it not for the fact that the defendant was covered by insurance, so that the loss falls upon the casualty company. The difficulty in properly presenting a defense may, therefore, be due somewhat to the fact that the actual defendant is not the one whose name appears in the action, and that by reason of a family relationship between the parties and their joint interest in the recovery, there is difficulty in procuring evidence for the defense.

Other States have met this situation, such as Connecticut, Massachusetts and Georgia by enacting laws whereby the host is liable to the guest only where gross negligence is found. In this State we still adhere to the common law, that a defendant is liable to his automobile guest for failure to exercise reasonable care. The rules of evidence whereby this common law liability is established, however, must not be weakened by the incongruity of members of a family suing each other for negligence.

The judgment below should be affirmed, with costs.

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

Judgments reversed, etc.


text:
    The Buffalo Academy of the Sacred Heart, Appellant, v. Boehm Bros., Inc., Respondent.

      (Argued March 18, 1935;
    decided April 17, 1935.)

      S. Fay Carr, Maynard C. Schaus and Joseph P. Jordan for appellant.

      Daniel J. Kenefick, Jr., and John G. Alexander for respondent.
   Finch, J.

This controversy, submitted pursuant to the provisions of the Civil Practice Act (§§ 546-548), presents for determination the question whether title to certain real estate is marketable. The plaintiff agreed to discharge an indebtedness to the defendant by conveying to it good and marketable title to certain realty, the contract further providing that if title should prove unmarketable the plaintiff would pay the defendant $60,000 in cash. The plaintiff has tendered defendant a deed to the property in question and the defendant has refused to accept, on the ground that title is unmarketable.

It bases its refusal on the following grounds:

1. That the subdivision University Terrace,” in which the lots are situated, is subject to a uniform building plan which restricts the use of each and every lot in said subdivision to the erection of buildings for residential purposes only.

2. That a deed conveying four lots in said subdivision to the Kendall Refining Company prohibited the erection and operation of gasoline filling stations and the sale of motor oil and fuel on any of the lots in the subdivision other than the four so conveyed to the Kendall Refining Company.

The Appellate Division decided against the defendant on the first point, finding that there was no uniform building plan, but granted judgment for the defendant on the ground that the property was subject to a restrictive covenant prohibiting the erection or operation of gasoline filling stations. Defendant, therefore, had judgment in the sum of $60,000.

Taking up the question of a uniform building plan, it is clear that the Appellate Division was correct in deciding that the property was not subject to the restriction of a plan limiting the use of the property to residential purposes. The plaintiff’s grantor set up two adjoining subdivisions. They were called University Terrace, Part One ” and “ University Terrace, Part Two.” Surveys were made, streets and lots laid out, maps prepared and filed in the County Clerk’s office. No plan or declaration of a purpose to restrict any particular portion of the subdivisions or lots thereon to residential or other specific purposes was included or indicated in the maps filed, nor do any of the deeds contain covenants on the part of the grantor that the remainder of the tract should be subject to restriction. The plaintiff’s grantor in selling the lots did not follow a uniform policy of development pursuant to which restrictions either for or against the grantees in the various deeds were established. Some lots were restricted to the erection of two-family houses; others to one-family houses. Stores were permitted on some lots, provided no gasoline or oil business should be conducted. In a great number of deeds a “ saving clause ” was inserted, providing that the grantee obtained no rights in other lots of the subdivision by reason of the restrictive provisions of the deeds. Many deeds contained no restrictions. It is apparent that restrictions were made' whenever the grantor thought them necessary or advisable to bring about and maintain the desirability and salability of the property. Clearly he was not following a fixed plan of restricting the use of the lots sold and did not intend to bind himself or his remaining lots by the covenants contained in the deeds which he gave. The defendant emphasizes the saving clause ” found in many of the deeds and seeks to deduce from this that the earlier deeds were in accordance with a plan which restricted the plaintiff’s grantor and that, therefore, the clause was inserted to prevent later deeds from carrying the benefit of the covenants already made. The argument cuts both ways. It is equally potent as showing that no general plan to restrict all lots ever was contemplated. If the grantor had in fact restricted all bis property in the subdivisions, of what use was the denial of the benefits under the covenants to the later purchasers, when sixty-two prior purchasers already possessed the power to enforce such restrictions? Thus we are brought to the conclusion that no uniform building plan ever came into being.

The defendant next urges that the deed given by the plaintiff’s predecessor to the Kendall Refining Company prohibited the erection and operation of a gas filling station upon all the other lots in the subdivision; that, although no mention of such restriction is made in the deed or chain of title to the plaintiff, it is binding on the property deeded to him; and that, therefore, the title offered to the defendant is not marketable.

The clause in the deed to the Kendall Company reads as follows:

“ This conveyance is made and accepted subject to the following restrictions, which shall be covenants running with the land:
First: So long as the said premises shall be used as a gasoline or motor fuel distributing station, the party of the second part or its assigns or successors agree: (a) That any grease pit or pits must and shall be level with the ground, (b) That there shall not be more than 8 pump housings for the distribution of motor oils and fuels, (c) That there shall not be more than one building for the sale or distribution of motor fuels.
“ Second: That at no time will the said premises be used for what is known as industrial or factory purposes. And the party of the first part covenants that he will not sell, or cause or permit to be sold, gasoline or lubricating oils, or motor fuels, nor erect, or cause to be erected, or permit to be erected, any other gasoline, lubricating oils or motor fuels distributing or sale station or stations upon the entire tracts of land known as University Terrace Number (or Part) 1 and University Terrace Number (or Part) 2; and that in the event that the party of the first part acquires the tract of land adjoining the said University Terrace tracts on the east, or any interest therein, the foregoing restrictive covenants to apply thereto to equal force and effect.”.

^AUpon the face of the foregoing deed, the only covenants which expressly are made to run with the land are those imposing obligations upon the Kendall Company, namely, pits must be level with the ground, the number of pump housings and buildings limited and the premises never used for industrial or factory purposes. When the grantor comes to covenanting on Ms part he starts covenanting anew and omits, apparently purposely, to provide that such covenant shall run with the land, although having so provided expressly with reference to the covenant on the part of the grantee, less than a dozen lines back in the same instrument. That the covenant on the part of the grantor only purports to be a personal undertaking is strengthened by the fact that the grantor binds Mmself alone and does not, either expressly or by legal implication, attempt to bind Ms heirs, grantees or assigns. The grantor’s covenant was that he would not sell gasoline and oil or erect filling stations on Ms remaimng lots, but he avoided sedulously any covenant that Ms grantee would not do these tMngs. Taking the restrictions in the order in wMch they appear in the deed, we find that those expressly intended to run with the land are the restrictions upon the use of the land conveyed, wMeh are applicable only to it, namely, those hunting the extent and nature of the structures upon the land. The remainder of the covenant is notMng more than an agreement proMbiting the grantor personally from becoming a competitor of the grantee in the filling station business. Nowhere do we find any provision extending such proMbition to the assigns of the grantor.

Thus, the covenant is personal to the grantor and cannot by implication be impressed upon future owners of other premises. The grantor could have made Ms covenant an obligation upon thunots of the plaintiff by inserting a covenant in the deed proMbiting a gasoline station upon such lots, but the grantor did not do so but gave a deed to the plaintiffs free of any such covenant'. Therefore, Ms obligation under tMs covenant stopped at Mmself and never attached to the lots later transferred to the plaintiff. (Clark v. Devoe, 124 N. Y. 120.)

In Clark v. Devoe the court said: In construing the covenant, it is to be observed that the grantor, * * * confined the restriction to Mmself alone, by agreeing that he, the grantor, would neither erect or cause to be erected any building that should be regarded as a nuisance. According to the literal, and hence natural, interpretation of this language, the parties meant that the grantor should not personally do or cause to be done any of the inhibited acts. No doubt could arise as to the correctness of this construction, if the parties had not agreed in behalf of themselves and their assigns. The substance of the covenant, however, is limited to the covenantor, and purports to restrict his action only. While .the capacity in which he assumes to contract is in behalf of himself and others, the actual contract, or the thing agreed not to be done, is limited to his own acts ” (p. 124).

And again: “ He did not agree that his * * * assigns should not build but only that he would not build. He used no words that connected anyone except himself with the restriction against building, or that imposed an obligation in that regard upon any other person. It was not a general covenant ' not to erect,’ (as in Phœnix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400), but a special covenant that the grantor would not erect, showing an intention to contract against the acts of one person only ” (p. 125).

Moreover, in construing conveyances containing covenants running with the land, the authorities uniformly hold that restrictive covenants must always be construed strictly against those seeking to enforce them; that they must be construed as they read and not be given a construction extending beyond the literal meaning of their terms. (Reformed Protestant Dutch Church v. Madison Ave. Building Co., 214 N. Y. 268; Schoonmaker v. Heckscher, 171 App. Div. 148; affd., 218 N. Y. 722.)

Assuming, however, that the deed embodies a restrictive covenant running with the land, intended to bind not only the grantor but in addition all the property in the subdivision owned by the grantor, for the defendant to succeed it is necessary also to find that this will bind land in the subdivision subsequently sold by deeds which make no mention of the covenant and which transfer property to grantees who are unaware of the existence of the covenant. The defendant claims that the mere fact that this one deed contains a restrictive covenant furnished constructive notice to all subsequent purchasers of property from the same grantor. To so claim goes contrary to the well^ettled principle that a purchaser takes with notice from the record only of incumbrances in his direct chain of title. In the absence of actual notice before or at the time of his purchase or of other exceptional circumstances, an owner of land is. only bound by restrictions if they appear in some deed of record in the conveyance to himseUAhr his direct predecessors in title. (Clark on Real Covenants and Other Interests which “ Run with the Land,” p. 162.) This rule would seem to be implicit in the acts providing for the recording of conveyances. Recording constitutes notice only of instruments in the chain of title of the parcel granted. To have to search each chain of title from a common grantor lest notice be imputed would seem to negative the beneficent purposes of the recording acts. (Schermerhorn v. Bedell, 163 App. Div. 445; affd., 221 N. Y. 536.)

In several States it has been held that a purchaser of a lot which formed part of a larger tract is not charged with notice of restrictive covenants contained in a prior deed from the same grantor to any other lot or parcel of the same general tract, although the deed is recorded and by its terms applies to all other lots. (Hancock v. Gumm, 151 Ga. 667; Glorieux v. Lighthipe, 88 N. J. L. 199; Wichita Valley Ry. Co. v. Marshall, 37 S. W. Rep. [2d] [Tex. Civ. App.] 756; Yates v. Chandler, 162 Tenn. 388.)

It is true that in some other States it has been held that the recording of such a deed by a common grantor affords notice to .all his subsequent grantees. (Lowes v. Carter, 124 Md. 678; Finley v. Glenn, 303 Penn. St. 131.) In New York no authorities in the Court of Appeals have been brought to our attention which prescribe the principle to be followed. In the Appellate Division there is an instance where a covenant in one deed has been held to affect property subsequently deeded by the common grantor free from the covenant. In that case, however, the covenant in the prior deed sought to establish a front line for adjacent houses. From the facts and circumstances it was held that the defendant had notice of the restrictive covenant in the earlier deed. Any one building in a residential section who projects his house farther into the street line than the adjacent house might be said to be put on notice as to whether he is restricted from so doing, either by a general plan of building or by some right or easement which his adjacent neighbor may have acquired. (Holt v. Fleischman, 75 App. Div. 593.)

In the absence of exceptional circumstances, the consideration of which we may well leave until they arise, New York should follow the general well-settled principle that a purchaser takes with notice from the record only of incumbrances in his direct chain of title.

The judgment should be reversed and judgment directed in accordance with this opinion, with costs.

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

Judgment accordingly.


author: Crane, Ch. J. Crouch, J.

text:
    Katharine A. Haggerty, as Administratrix of the Estate of John J. Haggerty, Deceased, Respondent, v. The City of New York, Appellant.
    (Argued March 15, 1935;
    decided April 17, 1935.)

      Paul Windels, Corporation Counsel (Paxton Blair and Barent Ten Eyck of counsel), for appellant.

      Bernard Hershkopf and Harry P. Eppig for respondent.
   Crane, Ch. J.

The Constitution of the State of New York recognizes two classes of courts ■ — ■ constitutional courts, and inferior local courts of civil or criminal jurisdiction. The constitutional courts are those which are created or continued by the Constitution and, as to these, the Constitution gives certain power and jurisdiction as well as defining the nature and extent of the office. The inferior local courts are left to the creation, control and regulation of and by the Legislature.

Beginning with the judiciary article, in effect January 1, 1926, known as article VI of the Constitution, we find provision made for the continuance of the Supreme Court, with general jurisdiction in law and in equity, subject to such appellate jurisdiction of the Court of Appeals as may be prescribed by law.

The term of office of a Supreme Court justice is fourteen years.

The Court of Appeals is continued, and the term of the judge fixed at fourteen years. Its jurisdiction is specifically detailed.

The County Court is next provided for, as appears in section 11: The existing county courts are continued, and the judges thereof now in office shall hold their offices until the expiration of their respective terms.” Some are to be elected for six years, others for fourteen years. The Constitution in section 12 even provides for the special county judge.

Then comes the Surrogates’ Courts, which are specifically provided for in section 13 of this article: The existing surrogates’ courts are continued, and the surrogates now in office shall hold their offices until the expiration of their respective present terms.” Some are to be chosen for six years and others for fourteen years.

We find also this article of the Constitution covers the Courts of General Sessions and also the City Court as they are constituted in the city of New York. Section 14 reads: The court of general sessions in and for the city and county of New York is continued with its present jurisdiction, under the name of the court of general sessions of the county of New York,” The term shall be fourteen years.

Section 15: “ The city court of the city of New York is continued, and, from and after the first day of January in the second year following the adoption of this article, it shall have the same jurisdiction and power throughout the city of New York, under the name of the city court of the city of New York, as it now possesses within the county of New York and the county of Bronx.”

These are the judicial offices created or continued by the Constitution, and beyond the power of the Legislature to control or regulate, except as that power is given to it expressly or impliedly by the Constitution.

As to justices of the peace, the Constitution (§ 17) provides that: “ The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years.” Every other judicial officer in this State is a creature of the Legislature, whose office may be abolished at any time, and whose duties, as well as his office, are under the regulation and control of the Legislature. Thus, by section 17 of this judiciary article, we have this provision, following the enumeration of the above judicial offices and courts: “All other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, including all judicial officers holding courts of special sessions, magistrates’ courts, or other inferior local courts of criminal jurisdiction in the city of New York, shall be chosen by the electors of such cities, or appointed by some local authorities thereof as may be prescribed by law.”

And again, in section 18 we have this: Inferior local courts of civil and criminal jurisdiction may be established by the legislature, but no such inferior local court which has been created since the first day of January, one thousand eight hundred and ninety-five, or is hereafter created shall be a court of record. All inferior local courts now or hereafter established may be regulated or discontinued by the legislature.”

The Municipal Court of the City of New York is thus an inferior local court of civil jurisdiction, created by the Legislature. Nowhere do we find in the Constitution any provision for its creation, continuance or even existence. The Legislature having created it, may abolish it at any time or transfer its jurisdiction to any other tribunal. To regulate it, both as to tenure of office as well as to any other circumstance and condition, is a power specifically given by the Constitution, and this power includes the right at any time to change or modify the compensation of its judges. Surely if the Legislature has power to abolish the court and is given specifically plenary power to regulate it, as the whole includes the part, so this power must permit of the decrease or increase in salary.

That the Legislature may do this thing, unless controlled or restricted by the Constitution, is conceded. Therefore, it is sought to make the Municipal Court of the City of New York a constitutional court. This cannot be done without thwarting the clear intent and purpose as well as the express phraseology of this fundamental charter of State government. That section 9 has in it these words: “ All other judicial officers, except justices of the peace, justices of the municipal court of the city of New York, and judges or justices of inferior courts not of record, may be removed by the Senate, * * * ” does not make the Municipal Court a constitutional court by this mere mention of it any more than it does all other inferior courts within the possibilities of propagation.

Having provided for vacancies in the offices of judges of the Court of Appeals and the Supreme Court, the Constitution, by section 16, provided for other vacancies created in the constitutional judicial office by saying: Vacancies occurring in the office of county judge, special county judge, surrogate, special surrogate, judge of the Court of General Sessions of the city of New York, or justice of the City Court of the county of New York, shall be filled by appointment by the governor by and with the advice and consent of the Senate if the Senate be in session,” etc. Clearly, the courts which this article VI created and continued by constitutional mandate were those which I have specified, and did not include the inferior local courts of civil and criminal jurisdiction created by the Legislature, of which the Municipal Court of the City of New York is one.

Therefore, when section 19 of article VI provided for the compensation of judges it had reference to those judges whose office had been created or continued by the article itself. Unnecessary was it to give such power in the Constitution to the Legislature as it had such power anyway. It could create such local courts as it desired unless restrained by the Constitution, and pay the -judges any given compensation. The Constitution, moreover, in section 18 had recognized the power of the Legislature to create local courts, regulate or discontinue them. The compensation section, reading: “ All judges, justices and surrogates shall receive for their services such compensatian as is now or may hereafter be established by law, provided only that such compensation shall not be diminished during their respective terms of office,” has reference to those judicial officers created and continued by the Constitution, for it is only such that this article of the Constitution is dealing with generally. All other judicial officers, both as to creation, continuance, regulation and compensation are left entirely to the control and power of the Legislature.

Does it not seem somewhat strained to say that the Legislature may abolish the Municipal Court, may reduce the term of office to a week or a day, may create another court in its place and end the term of every judge (Schieffelin v. Goldsmith, 253 N. Y. 243), and yet cannot reduce his compensation? I can find nothing in the Constitution that limits the Legislature in this respect. The same reasoning adopted for the Special Sessions judge applies to the judge of the Municipal Court and, as to the former, this court has held that the Legislature could reduce his salary during his term. (Matter of Gresser v. O’Brien, 263 N. Y. 622, affg. 146 Misc. Rep. 909.)

If the Municipal Court be a constitutional court beyond the power and control of the Legislature, then in no way can its jurisdiction be limited or controlled so as to take from it the functions which it now has, (See People ex rel. Wogan v. Rafferty, 208 N. Y. 451.)

The line of cleavage between the constitutional and the legislative courts is clearly drawn by the Constitution of 1925, and it should not become blurred or obliterated by judicial interpretation. Matter of Adler v. Voorhis (254 N. Y. 375) is not in point. The statement that the Constitution has now given place to inferior local courts refers to those courts provided for in the Constitution, as above stated —the General Sessions and the City Court, and not to the Municipal Court of the City of New York. This case dealt with the time for holding elections, which was very materially changed by the new judiciary article.

Reference should be made to the rulings of the United States Supreme Court regarding this matter of inferior local courts under the Federal Constitution. In Williams v. United States (289 U. S. 553) it was held that the judicial power of the Court of Claims is not vested in virtue of article III of the Constitution, so as to bring its judges within the protection of that article as to tenure of office and compensation.

For these reasons the judgment should be reversed and the complaint dismissed, with costs in all courts.

Crouch, J.

(dissenting). Plaintiff’s intestate was a justice of the Municipal Court of the City of New York. He took office for a term of ten years on January 1, 1930. He died in December, 1933. When he was elected and when he took office the salary of the justices of that court was fixed at $12,000 per year. In 1932 the Board of Estimate and Apportionment reduced the salary for 1933 to $10,840 a year, pursuant to the purported power conferred by chapter 637 of the Laws of 1932. At the time of decedent’s death the amount of salary withheld from him over his due protest noted upon the payrolls was $996.60. This action is brought to recover that sum. The authority of the statute is pleaded as a defense. The reply is that the statute contravenes section 19 of article VI of the State Constitution, the first sentence of which reads as follows: “ All judges, justices and surrogates shall receive for their services such compensation as is now or may hereafter be established by law, provided only that such compensation shall not be diminished during their respective terms of office.” The contention of the city is that (1) the Municipal Court is not a constitutional court; and (2) protection against salary reductions extends to judges and justices of constitutional courts only.

For the purpose of the immediate discussion I accept the city’s definition of a constitutional court as one established or continued by the Constitution, as contra-distinguished from a court whose establishment or continuance is left to legislative discretion. It follows, and for the same purpose I assume, that the Municipal Court is not a constitutional court. I am thus brought to the essential question: Does the constitutional bar against the diminution of judicial salaries apply literally to all judges, justices and surrogates," or does it apply only to all judges, justices and surrogates of constitutional courts?

The genesis and history of the constitutional provision, as well as the classic statement of the reasons underlying it, are clearly and for the most part accurately stated in the opinion of the trial court in Matter of Gresser v. O’Brien (146 Misc. Rep. 909, at pp. 912-918). They need not be repeated here. It is sufficient to say that from 1846 to January 1, 1926, when the present judiciary article took effect, the constitutional bar against diminution of salary applied only to judges, by whatever term known, of constitutional courts. The Constitution of 1894, as originally adopted and as it continued to read down to 1909, provided in section 12 of article- VI as follows: The judges and justices hereinbefore mentioned shall receive for their services a compensation established by law, which shall not be increased or diminished during their official terms." (With an exception immaterial here.) The judges and justices hereinbefore mentioned " were judges and justices mentioned in the preceding eleven sections of article VI. They were the judges of the Court of Appeals, the justices of the Appellate Division and the justices of the Supreme Court. A similar inhibition applicable to county judges or surrogates was contained in section 15 of article VI. In 1909 an ill-starred amendment of section 12 was adopted which eliminated the increase or diminution clause, fixed in terms the salary of Supreme Court justices, and left the judges of the Court of Appeals dependent upon the doubtfully applicable provision of section 9 of article X relating to the salaries of State officers.

With that background, the Judiciary Constitutional Convention of 1921 entered upon its work, which it understood to be in the nature of amendment rather than of entire revision. “ It was the duty of the convention,” says its report to the Legislature, “ to suggest no constitutional changes which were not deemed necessary because of some clearly disclosed and definite evil or abuse, or because likely to clarify the meaning and intent of existing provisions, or because tending to promote efficiency and expedition in the administration of justice, certainty and security to litigants, and satisfaction and confidence on the part of the public.” (Legislative Document [1922], No. 37, p. 7.) And in dealing with matters of style and arrangement, the same report says: The convention concluded that it should suggest no more amendments or readjustments than seemed reasonably necessary and practically desirable. A change of language might well be construed as some evidence of a change of intent, and thus create litigation” (p. 9). The report then takes up section by section the draft of the Constitution which the Convention had framed. With reference to section 19 the report says: A number of general provisions are consolidated in the new section 19, which were heretofore in other sections, and which method rendered it difficult to ascertain readily the various constitutional provisions applicable to all judges (p. 29).

Having in mind what is thus known of the purposes and attitude of the framers, and using accepted canons of interpretation, I can see no rational escape from the conclusion that the first sentence of section 19 of article VI makes the bar against diminution of salary applicable to every judge, justice or surrogate without regard to whether the court in which he sits is a constitutional court or not. The reasons may be briefly stated as follows:

(1) The language of the provision is clear and unambiguous. Taken by itself without reference to historical antecedents or to setting, its meaning is as clear as words can make it. Its application is all-inclusive. In dealing with a constitutional provision framed in language no clearer than that here in question, this court said: In the construction of constitutional provisions, the language used, if plain and precise, should be given its full effect and we are not concerned with the wisdom of their insertion. As adopted by the People the intent is to be ascertained, not from speculating upon the subject; but from the words in which the will of the People has been expressed. To hold otherwise would be dangerous to our political institutions. * * * The latitude allowed in the construction of legislative acts is out of place, and would be unwise, when interpreting the fundamental law, * * * The Constitution, which underlies and sustains the social structure of the state, must be beyond being shaken, or affected, by unnecessary construction, or by the refinements of legal reasoning.” (People v. Rathbone, 145 N. Y. 434, 438.)

Citations to the same effect could be multiplied. The rule of construction is so well settled and the reasons for it are so sound and clear that it is unnecessary to do so. When the mandate comes from the people and the people’s representatives, limitations should not be read into the text of the Constitution by dubious construction. (Browne v. City of New York, 241 N. Y. 96, 112.) Unless there are compelling reasons to the contrary, leaving no room for doubt, it is our duty to give effect to the language of the provision as it would have been understood in its ordinary sense both by the members of the Legislature, who by concurrent resolution proposed the present judiciary article to the people, and by the people themselves. We may not blind ourselves to the fact that the only judges and justices known to the great majority of the people are those who sit in the lesser courts of local jurisdiction, unnamed in the Constitution.

(2) If one considers the provision in question in connection with the other provisions of section 19, the same conclusion is reached. We know from the report of the Convention, above referred to, that section 19 was primarily framed to include various constitutional provisions theretofore found in other scattered sections, which were applicable to all judges. So we find the second sentence dealing with the election or appointment of “ all judicial officers;” the fourth sentence with a general prohibition addressed to all judges; and the fifth sentence with another prohibition likewise addressed. Nosdtur a sociis. The other sentences of the section embracing provisions of limited application specifically name the judges to whom the provisions are or are not applicable. Had it been intended to limit the application of the first sentence, it is difficult to understand why the same method should not have been used. Furthermore, we may notice that the historic phraseology of this provision ( “ The judges and justices hereinbefore mentioned ”) was abandoned and for the first time there was used the all-embracing phrase, All judges, justices and surrogates.” We have it upon the word of the Convention itself that “ a change of language might well be construed as some evidence of a change of intent.”

(3) Again, if one considers the provision in its relation, to the remaining provisions of article VI, the intent of the framers is made even more clear. It is idle to say that they had no thought of the existence of other than constitutional courts. One of the problems before the Convention was to simplify and consolidate, as far as possible, the entire system of courts. In doing so, it gave a place in the Constitution itself for the first time to certain inferior local courts in cities or parts of cities. (Matter of Adler v. Voorhis, 254 N. Y. 375, 378.) Moreover, in section 9 of article VI, providing for the removal of judicial officers, exception was made of justices of the peace, justices of the Municipal Court of the City of New York, and judges and justices of inferior courts not of record. Thus where it was desired to make an exception in the case of inferior courts, the article does so plainly and directly.

In the sections of article YI preceding section 19 provision had been made for a complete system of courts consisting of those specifically established or continued, being courts of major importance, and those inferior local courts of civil and criminal jurisdiction, including children’s courts and courts of domestic relations which the Legislature was authorized to establish. Having thus provided for a complete system, section 19 followed immediately with its command that all judges, justices and surrogates should receive a compensation which should not be diminished during their respective terms in office.

It seems clear that the same considerations which theretofore had led to the protection of some judicial salaries were deemed applicable to all. Freedom from political or other dominance by threat against his economic security is perhaps even more necessary to the independence of the lesser judge than to that of one in higher place.

(4) Matter of Gresser v. O’Brien (146 Misc. 909; affd. without opinion, 263 N. Y. 622) was a.mandamus proceeding, and not, as here, an action at law. (Matter of Black v. O’Brien, 264 N. Y. 272.)

The judgment should be affirmed.

Lehman, Hubbs and Finch, JJ., concur with Crane, Ch. J.; Crouch, J., dissents in opinion in which O’Brien and Loughran, JJ., concur.

Judgment reversed, etc.


text:
    In the Matter of The Niagara Falls Power Company, Respondent, against The Water Power and Control Commission, Appellant. In the Matter of The City of Niagara Falls, Respondent, against The Water Power and Control Commission, Appellant.

      (Argued February 27, 1935;
    decided April 23, 1935.)

      John J. Bennett, Jr., Attorney-General (Charles E. McManus and Henry Epstein of counsel), for appellant.

      Randall J. LeBoeuf, Jr., Chauncey P. Williams, Jr., and Francis T. Carmody for The Niagara Falls Power Company, respondent.

      George E. Carrie, Corporation Counsel, for The City of Niagara Falls, respondent.
   Finch, J.

A certiorari order to review a determination of the Water Power and Control Commission, fixing an annual rental to be paid by the petitioner Niagara Falls Power Company of $5 per horse power on 500 cubic feet per second of water diverted from the Niagara river for power purposes, was granted upon the application of the power company. Upon the application of the city of Niagara Falls, a like certiorari order was granted. A single return was made answering both orders. The Appellate Division, two justices dissenting, rendered its decision annulling the determination and remitting the matter to the Water Power and Control Commission. Thereafter the Appellate Division allowed an appeal to this court and certified one question as follows: “ Was the charge of $5 per horse-power as imposed by the Commission in excess of the power of the Commission under the statute prescribing an equitable rental, under the evidence presented in this proceeding? ”

The nature of the Niagara river has been sufficiently stated in Matter of Commissioners of State Reservation at Niagara (37 Hun, 537; appeal dismissed, 102 N. Y. 734). The fine between the United States and Canada is located in the center of Niagara river, (Treaty of 1783, 8 U. S. Stat. at Large, 55; and that of Ghent in 1814, Id. 221, and such is the boundary of Niagara county, Laws of 1808, chap. 60.) So far as our attention has been called to any authority relating to this river it has been recognized and treated as, in every sense, a public river, as much as if it was an arm of the sea in which tide flowed, and acknowledged as such. (Tibbits’ Case, 17 Wend. 623; Kingman v. Sparrow, 12 Barb. 201.) And we think because it is navigable in fact, and constitutes the natural boundary between this and another country, is the reason why the proprietary right from its margin to such boundary line is in the State, and that the riparian owners have taken by the grant referred to only to the water’s edge of the stream. And that the fact that at the particular place in question the river is not navigable by reason of the interruption produced by the falls, does not qualify or distinguish it in that locality as a public river from its general character ” (p, 547).

Whether the Niagara river is navigable at the particular point of the defendant’s intake for water used to create power is immaterial. The Niagara river being navigable in part is thus navigable in whole, so far as the control of the river for purposes of commerce and navigation is concerned. It must be conceded that Congress has the right to control and regulate the use of water in the Niagara river and may make such rules and regulations as it may deem necessary in the case. In New Jersey v. Sargent (269 U. S. 328, p. 337) we find this power thus stated: Rightly to appraise the bill one should have in mind the doctrine, heretofore firmly settled, that the power to regulate interstate and foreign commerce, which the Constitution vests in Congress, includes the power to control, for the purposes of such commerce, all navigable waters which are accessible to it and within the United States, whether within or without the limits of a State, and to that end to adopt all appropriate measures to free such waters from obstructions to navigation and to preserve and even enlarge their navigable capacity; and that the authority and rights of a State in respect of such waters within its limits, and in respect of the lands under them, are subordinate to this power of Congress.”

And in Matter of Long Sault Development Co. (212 N. Y. 1, p. 10) it was said regarding the St. Lawrence river: The privilege of the State to control the St. Lawrence as a navigable river (subject to the direction of Congress) cannot be assigned to others in the manner attempted by this legislation. As long as the waters are maintained as navigable they remain public waters of the State; and as long as they remain public waters of the State the State is bound to retain control over them in the public interest.”

And quoting from Illinois Central R. R. Co. v. Illinois (146 U. S. 387) the opinion continued: The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace.”

The petitioner is a power company, the successor to three others through whom it claims to have grants from the State permitting it to divert the waters of the Niagara river for the purpose of creating commercial power. These grants are under the Laws of 1892, 1893 and 1896. Chapter 513 of the Laws of 1892, relating to the Niagara Falls Power Company, gave the company the right to take and use the waters of the Niagara river to the extent required for the proper operation of the authorized works of said corporation during the continuance of such works, provided that nothing contained in the act should be construed to confer any right to obstruct the navigation of the Niagara river, or to take therefrom more water than sufficient to produce two hundred thousand effective horse power.

Chapter 477 of the Laws of 1893 authorized the Niagara Falls Power Company to furnish the waters of the Niagara river to and through any civil division of the State, to sell and furnish the same to any public body or private person; and chapter 968 of the Laws of 1896, relating to the Niagara Falls Hydraulic Power and Manufacturing Company, to the rights of which petitioner has succeeded, authorized that company to use the waters of the Niagara river to develop power and to sell it to others, limiting the use to such quantity of water as may be drawn by means of a hydraulic canal of said company when enlarged throughout its entire length to a width of 100 feet and to a depth and slope sufficient to carry at all times a maximum uniform depth of fourteen feet of water, provided the exercise of the rights should not impair the practical navigation of Niagara river.

In 1910 the United States entered into a treaty with Great Britain (36 Stat. pt. II, 2448), under article V of which the United States was allowed to divert 20,000 c. f. s. (cubic feet second) at Niagara Falls, and Canada was allowed to divert on its side 36,000 c. f. s.

The claim of the petitioner here is that by reason of these privileges or rights given under the laws above referred to, the power company can draw off a total amount of 20,000 c. f. s. limited by the treaty. The State of New York, on the other hand, through the Water Power Control Commission, claims that Congress and the State in the exercise of their respective powers, and in the interest of preserving the public rights in the Niagara river, and the public use of the waters therein, for navigation and commerce, have very much restricted the petitioner’s right to take water, and that under no circumstances can it take more than 15,100 c. f. s. without paying the rate established by these subsequent laws and regulations.

In 1906 the Federal government passed its first act, exercising control and jurisdiction over the waters of this river. It was the Burton Act (34 U. S. Stat. 626, ch. 3621). The act bore the following title: An act for the control and regulation of the waters of Niagara River, for the preservation of Niagara Falls, and for other purposes.” This act prohibited all diversion of waters from the Niagara river or its tributaries except with the consent of the Secretary of War. The maximum total for all users was 15,600 c. f. s. The then Secretary of War, the late Chief Justice Taft, after investigation, allowed the power company to take 8,600 c. f. s. and the Hydraulic Company 6,500 c. f. s. Later he allowed the Lockport Hydraulic Company to divert 500 c. f. s., making a total of 15,600 c. f. s. permitted to this petitioner or its predecessors to be drawn from the Niagara river. The Burton Act expired, so we are informed, on March 4, 1913 (37 U. S. Stat. 631).

During the late war the use of the Niagara river for power purposes was again under the direct control of the Secretary of War. Permits were issued to the Niagara Falls Company for the use of water from the river. Then came the Laws of 1918 (chs. 596 and 597) by which the State of New York, with the consent of the petitioner, further regulated the use of the waters of the Niagara. Chapter 596 permitted the Cliff Electrical Distributing Company, the Niagara Falls Power Company and Hydraulic Power Company of Niagara Falls, each being domestic corporations, to consolidate into a single new corporation, with preferred or common stock or both, subject to the approval of the Public Service Commission.

Chapter 597 permitted the new corporation to divert the water of the Niagara river for the development of power, with this proviso: “ Provided further that if the corporation constituted by such consolidation shall divert from the Niagara river for power purposes more than fifteen thousand one hundred cubic feet per second, there shall be reserved to the state the right to charge an equitable rental therefor in such amount and in such manner as shall hereafter be provided by law; and provided further than nothing in this act shall be construed as giving the right to discharge water into the Niagara river at a point more than one thousand feet below the lowest point of discharge into such river by any of the corporations so consolidated as now fixed. Nothing in this act shall be construed to waive or alienate any right now vested in the state as to waters now being diverted by any of such corporations so consolidated, or to compensation for said rights.”

The act says in substance "that for all water diverted over and above fifteen thousand one hundred cubic feet per second, the petitioner shall pay therefor an equitable rental (as shall) hereafter be provided by law.”

Chapter 242 of the Laws of 1922, being subdivision 13 of section 614 (formerly 613) of the Conservation Law (Cons. Laws, ch. 65), made the provision for the rental or charge. It reads:

" General powers and duties of the commission in relation to water power. (L. 1928, ch. 242, § 39.) The commission [Water Power and Control Commission] * * *
13. Shall have the power to fix and determine, after a hearing held upon notice to the parties interested, the amount of an equitable rental, which is hereby charged pursuant to the reservation made by chapter five hundred and ninety-seven of the laws of nineteen hundred and eighteen, for the diversion, as specified in such chapter, of water from the Niagara river in excess of a daily diversion at the rate of fifteen thousand one hundred cubic feet per second, and which shall be fixed in like manner as if the application was made for a license under the provisions of this article before the water was used, and the people of the state may sue for and collect in behalf of the state such rental as so fixed and determined,”

Congress, on July 12, 1919 (41 U. S. Stat. 163), by a joint resolution allowed permits to be issued up to the 1st day of July, 1920, for the use of not to exceed 20,000 c. f. s, of Niagara water. Permits were issued to the Niagara Falls_ Power Company for 19,500 c, f, s. and another to the Hydraulic Race Company for 500 c. f. s.

By the Federal Power Act (41 U. S. Stat. 1063), approved June 10, 1920, the waters of Niagara river were placed under the control of the Federal Power Commission. This Commission permitted the diversion of 19,500 c. f. s. to the Power Company, and 500 c, f. s. to the Hydraulic Race Company. Thus the entire amount of 20,000 c. f. s. of Niagara water has been diverted by the petitioner, which is the limit allowed by the treaty, and is 4,900 c, f. s. over and above that which it may withdraw under the act of 1918 without paying any compensation or water charge to the State. Four thousand, four hundred c. f. s. have been withdrawn from this litigation by agreement as to compensation or rental value, leaving the 500 c. f, s. to be charged for by the Commission in accordance with the above provisions. For the time specified in the record, the Commission, after a hearing, has fixed a rental value or reasonable charge for this excess of 500 c, f. s, at five dollars per horse power.

With this statement of the facts we now come to the law which governs the case. The petitioner claims that by the acts of 1892, 1893 and 1896, it had a grant from the State to rights in the Niagara river of which it could not be divested by subsequent acts, and that it could withdraw 20,000 c. f. s. without paying for it. The answer to this is that the acts permitting the withdrawal of water were subject to the reserve power of the State to regulate and control the use in behalf of the public, and the privileges and rights granted to the power company were taken subject to this right of the State and also subject to the control of Congress. The power of Congress to regulate this river is unquestioned because the petitioner does not insist that it can take all the water allowed by the acts of 1892, 1893 and 1896, as it is limited by the treaty with Great Britain and also by the control of the Federal Power Commission. In other words, it lays claim to no greater right than 20,000 c. f. s. But the control of Congress and the control of the State are joint (Montgomery v. Portland, 190 U. S. 89; United States v. River Rouge Co., 269 U. S. 411, 419), so that the State likewise has the reserve power to preserve the water of Niagara river for commerce and navigation and in the interests of the public. Therefore, the limitation stated in chapter 597 of the Laws of 1918 was and is binding upon this petitioner. The word " rental ” is by no means limited or intended to be used in connection with real estate or lands, tenements and hereditaments conveyed by the State. It has reference to a rental charge for the use of water, and such is its meaning in chapter 597.

Again, the present petitioner, reorganized under chapter 596, accepted all the privileges and benefits of that act, and is bound by all the obligations which it assumed in so doing and as stated in chapter 597.

We are thus brought to the conclusion that the right of the State to collect an equitable rental may be sustained independently of any other reason, upon the provisions of chapters 596 and 597, Laws of 1918.

Taking up, then, the question of the equitable rental to be paid, we find that chapter 597 of the Laws of 1918 did not, in and of itself, provide a method of assessment of the equitable rental but expressly provided for subsequent legislative enactment prescribing such method. This the Legislature subsequently enacted (L. 1922, ch. 242), thereby conferring upon the Commission the power of determining an equitable rental.

The provision in the statute (§ 614, subd. 13, supra) that the rental shall be fixed in like manner as if the application was made for a license ” simply means that the procedure employed in the issuance of licenses is applicable. (Conservation Law, § 616, subd. 1.) It cannot be construed to mean that the amounts and kind of rental found in the licensing section (§ 616) are to be bodily lifted out of that section and incorporated into section 614, subdivision 13. The reference is made, not to qualify the substance of subdivision 13 but merely to provide a means for formal execution.

This conclusion is confirmed by a consideration of the result of treating section 614, subdivision 13, as incorporating the substantive portions of section 616. Subdivision 2 of that section provides for a fair rental value ” charge where title to the power site is vested in the State; “ an equitable annual charge ” where the State has some proprietary interest; and an administrative charge in all cases, including where the State has no proprietary interest. Thus, the statute comprehends three situations, the first where the State owns the power sites, the second where it does not own the sites but has some proprietary interest in them, and the third where it has no proprietary interest at all — for example, as in a private non-navigable stream. The power company contends that the State has no proprietary interest in the sites. How great is the State’s proprietary interest in these sites in the navigable Niagara river, it is unnecessary to determine, since the State has a valid claim to an equitable rental for this fraction of the total amount of water diverted, based upon the acceptance of the provisions of the law of 1918 (Ch. 597). The power company asks us to conclude that the State is only entitled to an administrative charge. Certainly more was intended than the ordinary administrative charge when the Legislature used the term equitable rental in the law of 1918 (Ch. 597) and in section 614, subdivision 13, of the Conservation Law. Moreover, if the intention were to incorporate more than the procedural provisions of section 616 there would have been no need for the subsequent enactment of section 639 of the Conservation Law, requiring the company to obtain a license.

As there was evidence before the Commission bearing upon the reasonable value or rental value for the use of this water, neither the Appellate Division nor this court has any power to reconsider the question. No doubt much administrative law has grown up in this State and in this country in response to the development of the public utility resources, but, unless these administrative agencies act arbitrarily and beyond their powers, the courts should not interfere. We have no special knowledge which enables us to deal with these matters. On the other hand, the Commission is a fact finding body of presumed technical qualifications. The Power Commission has been intrusted by the Legislature to deal with these specialties and as long as they act in accordance with the due administration of law by affording a hearing, taking evidence and giving their judgment or award, we cannot, nor must the Appellate Division, interfere with their conclusion. We, therefore, conclude that the Water Power and Control Commission acted within its powers when fixing this rate for the 500 c. f. s. used in excess by the petitioner, and that its decision should not have been disturbed.

There are other questions arising which we do not deem it necessary to consider, such, for instance, as the constitutionality of the acts of 1892 and 1893 and 1896, and further, the power of the State at any time to give away to private parties for commercial enterprises the sole use of navigable rivers or the diversion of the waters therein.

Without passing upon these questions, and basing our decision solely upon the points above discussed, the decision of the Appellate Division should be reversed; that of the Water Power and Control Commission affirmed, with costs in all courts, and the question certified answered in the negative.

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

Ordered accordingly.


text:
    Alice Samuel et al., as Executors of Edmund W. Samuel, Deceased, Respondents, v. Edgar R. Bastress et al., as Executors of John E. Bastress, Deceased, et al., Appellants.
    (Argued March 5, 1935;
    decided April 23, 1935.)

      M’Cready Sykes, George L. Shearer and Sidney A. Clarkson for Edgar R. Bastress et al., as executors of John E. Bastress, deceased, et al., appellants.

      Sidney A. Clarkson for E. C. Dillon Construction Co., Inc., appellant.

      Bradford Butler for respondents.
   Finch, J.

The action was begun by Edmund W. Samuel against John E. Bastress and the five corporate defendants. Mr. Bastress died before the trial, and Mr. Samuel after the trial, and then respective executors were duly substituted. On the trial it was conceded that the corporate defendants, other than Dillon Construction Company, were owned and controlled by the defendant Bastress and that Bastress was in control of the executive officers and boards of directors of such corporate defendants other than Dillon Construction Company.

The court at Special Term dismissed the complaint on the merits. The Appellate Division reversed and directed a money judgment in an amount found upon an accounting by an official referee. From this judgment the present appeal is taken.

Because the issues are of fact, it would unduly lengthen this opinion to set forth and properly appraise all the evidence bearing on these issues. Suffice it to say that not only was there no evidence sustaining the finding of the Appellate Division that the parties entered into a joint adventure on January 15th but that the admitted evidence shows that on January 26th and on April 14th it was set forth, in conceded writings between the parties, that Samuel was to have a pecuniary interest in certain building transactions and real estate deals but that the nature of the terms had not then been definitely arrived at. In the written receipt for the bonds loaned, the parties agreed to arrive definitely at this agreement and specifically write it out during the month of January, but it appears as late as April 14th the terms were not only not specifically written out but had not even then been determined. If the parties were to be equal partners, it would not have taken much verbal discussion to have arrived definitely at such an agreement. The agreement found to exist by the Appellate Division on the 15th of January is thus belied by the documents in the case. Furthermore, the express protection of Samuel against loss, added to the absence of any evidence showing his control or direction in the enterprise, together with the identification of his bonds as his individual property, as a specific loan, all tend to negative the theory of any general joint venture between Samuel and Bastress.

There is, moreover, a lack of evidence sufficiently clear and definite to satisfy a trier of the facts that the parties ever came to a definite agreement as to their respective interests.

It follows that the judgments of the Appellate Division should be reversed and the judgment of the trial court affirmed, with costs in this court and in the Appellate Division to defendants-appellants. Appeal by plaintiffs-appellants dismissed without costs.

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

Judgment accordingly.


author: Per Curiam.

text:
    Simon S. Brone, Appellant and Respondent, v. Louis Golde et al., Individually and as Copartners under the Firm Name of S. Golde & Sons, Respondents and Appellants.
    (Argued April 15, 1935;
    decided April 23, 1935.)

      Horace S. Manges and Gerald Dickler for plaintiff, appellant and respondent.

      Harry A. Gordon, Eric C. Gordon and Lewis B. Parmerton for defendants, respondents and appellants.
   Per Curiam.

The action is against residents of this State upon a judgment of a court of general jurisdiction in Pennsylvania granted solely upon defendants’ confession of judgment for unpaid rent reserved to plaintiff by a lease between the parties. The second defense alleges that the lease and the confession of judgment were parts of a single transaction, and that, before recovery of the judgment sued on, defendants had rescinded that transaction for plaintiff’s fraud.

We agree with the courts below that plaintiff has here sufficiently established prima facie the existence of a cause of action, and that defendants have sufficiently shown fraud in the means of procuring the Pennsylvania judgment to entitle them at least to a trial of the issues raised by their second defense. (See Dobson v. Pearce, 12 N. Y. 156; Hunt v. Hunt, 72 N. Y. 217; Gray v. Richmond Bicycle Co., 167 N. Y. 348; Trebilcox v. McAlpine, 62 Hun, 317.) We pass upon no other question.

In each appeal, the order should be affirmed, without costs, the second question certified answered in the affirmative, the eighth question certified answered in the negative, and the other questions not answered.

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